R. v. Pratas (J.A.C.), (2000) 190 Nfld. & P.E.I.R. 153 (NFTD)

• Judge: L.D. Barry, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: December 07, 1999
• Jurisdiction: Newfoundland and Labrador
• Citations: (2000), 190 Nfld. & P.E.I.R. 153 (NFTD)

R. v. Pratas (J.A.C.) (2000), 190 Nfld. & P.E.I.R. 153 (NFTD);

    576 A.P.R. 153

MLB headnote and full text

Temp. Cite: [2000] Nfld. & P.E.I.R. TBEd. MR.065

Her Majesty The Queen v. Jose Augusto Costa Pratas

(1995 St. J. No. 0884)

Indexed As: R. v. Pratas (J.A.C.)

Newfoundland Supreme Court

Trial Division

L.D. Barry, J.

February 9, 2000.

Summary:

The accused was charged as a director of a corporation with two counts of permitting a person to use the corporation's vessel in fishing without a vessel registration card and two counts of permitting a person to use the corporation's vessel in fishing without a licence, contrary to the Atlantic Fishery Regulations. The accused argued that the vessel had become a foreign fishing vessel because of registration in Panama and the Regulations therefore did not apply. Follow­ing the Crown's evidence, the accused applied for a dismissal of the charges or a stay of proceedings because of the Crown's alleged failure to disclose certain requested information.

The Newfoundland Supreme Court, Trial Division, convicted the accused. In an Ap­pendix to its decision, the court dismissed the application for a dismissal of the charges or a stay of proceedings because of nondisclosure.

Criminal Law - Topic 266

Corporations - Criminal liability - Direct­ing mind or will - [See Fish and Game - Topic 2107 ].

Crown - Topic 709

Authority of ministers - Delegation of - Administrative powers - General - The accused was charged as a director of a corporation with permitting a person to use the corporation's vessel in fishing without a vessel registration card and permitting a person to use the corporation's vessel in fishing without a licence, contrary to the Atlantic Fishery Regulations - The accused contended that the vessel had become a foreign fishing vessel because of registra­tion in Panama and the Regulations there­fore did not apply - The accused argued that the vessel had never properly been registered in Canada because the consent of the Minister of Transport required by s. 22 of the Canada Shipping Act had never properly been obtained (the consent had been signed by a department official instead of the Minister) - The accused requested disclosure of all documents related to the original registration of the vessel - The Newfoundland Supreme Court, Trial Division, held that the grant­ing of consent under s. 22 of the Act was an administrative function to which a presumption of regularity applied - The requested documents were therefore not relevant - See paragraphs 43, 44 and 52 to 57.

Fish and Game - Topic 2005

Fishing offences - General - Party to offence - The accused was charged as a director of a corporation with permitting a person to use the corporation's vessel in fishing without a vessel registration card and permitting a person to use the corpora­tion's vessel in fishing without a licence, contrary to the Atlantic Fishery Regula­tions - The accused argued that the indict­ment should refer to s. 78.2 of the Fish­eries Act (director as a party to the offence) - The Newfoundland Supreme Court, Trial Division, rejected the argu­ment - A party to an offence could be charged simply as a principal and the different ways by which a person could become a party did not have to be spec­ified - See paragraphs 15 and 25.

Fish and Game - Topic 2107

Fishing offences - Defences - Due dili­gence - The accused was charged as a director of a corporation with permitting a person to use the corporation's vessel in fishing without a vessel registration card and permitting a person to use the corpora­tion's vessel in fishing without a licence, contrary to the Atlantic Fishery Regula­tions - The accused contended that the vessel had become a foreign fishing vessel because of registration in Panama and the Regulations therefore did not apply - The Newfoundland Supreme Court, Trial Divi­sion, convicted the accused - The vessel was not a foreign fishing vessel - The Crown proved beyond a reasonable doubt that the accused, by a passive lack of interference, participated in the corpora­tion's offences - If he did not direct the illegal activity, he authorized, assented to, or acquiesced in the commission of the offences - The accused was the directing mind of the corporation - There was insuf­ficient evidence to establish that he had exercised all due diligence or that he rea­sonably and honestly believed in the exist­ence of facts that, if true, would render his conduct innocent - See paragraphs 27 to 33.

Fish and Game - Topic 2108

Fishing offences - Defences - Honest mistake of fact - [See Fish and Game - Topic 2107 ].

Fish and Game - Topic 2162

Fishing offences - Particular offences - Fishing without licence - [See Fish and Game - Topic 2107 ].

Fish and Game - Topic 2177.2

Fishing offences - Particular offences - Fishing without vessel registration - [See Fish and Game - Topic 2107 ].

Shipping and Navigation - Topic 581

Ships - Ownership and control - Registra­tion - General - [See Crown - Topic 709 ].

Shipping and Navigation - Topic 581

Ships - Ownership and control - Registra­tion - General - The accused was charged as a director of a corporation with permit­ting a person to use the corporation's vessel in fishing without a vessel registra­tion card and permitting a person to use the corporation's vessel in fishing without a licence, contrary to the Atlantic Fishery Regulations - The accused contended that the vessel had become a foreign fishing vessel because of registration in Panama and the Regulations therefore did not apply - The Newfoundland Supreme Court, Trial Division, rejected the argument - The Crown met the burden of proving that the vessel was not a foreign fishing vessel by proving that the vessel was registered in Canada - Subsequent registration elsewhere did not affect the validity of the Canadian registration - See paragraphs 15 and 19 to 24.

Words and Phrases

Foreign fishing vessel - The Newfound­land Supreme Court, Trial Division, con­sidered the meaning of "foreign fishing vessel" in s. 3(3)(a) of the Atlantic Fishery Regulations - See paragraphs 21 to 25.

Cases Noticed:

R. v. Ulybel Enterprises Ltd. (1999), 178 Nfld. & P.E.I.R. 321; 544 A.P.R. 321 (Nfld. C.A.), refd to. [para. 10, footnote 1].

R. v. Tavares (A.) (1996), 144 Nfld. & P.E.I.R. 154; 451 A.P.R. 154 (C.A.), refd to. [para. 10, footnote 2].

R. v. A.G.W., [1993] 1 S.C.R. 3; 146 N.R. 141; 103 Nfld. & P.E.I.R. 48; 326 A.P.R. 48; 78 C.C.C.(3d) 302, refd to. [para. 20].

R. v. Cote, [1978] 1 S.C.R. 8; 13 N.R. 271, refd to. [para. 20].

R. v. Cousins (J.D.) (1997), 155 Nfld. & P.E.I.R. 169; 481 A.P.R. 169 (Nfld. C.A.), leave to appeal denied (1998), 226 N.R. 399; 165 Nfld. & P.E.I.R. 360; 509 A.P.R. 360; 120 C.C.C.(3d) vii (S.C.C.), refd to. [para. 25].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; [1996] 2 W.W.R. 153; 103 C.C.C.(3d) 1; 4 C.R.(4th) 1; 29 W.C.B.(2d) 152, refd to. [para. 26, foot­note 3].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295; 85 D.L.R.(3d) 161; 40 C.C.C.(2d) 353; 3 C.R.(3d) 30; 7 C.E.L.R. 53, refd to. [para. 30, foot­note 4].

R. v. Ulybel Enterprises Ltd. (1997), 150 Nfld. & P.E.I.R. 308; 470 A.P.R. 308 (Nfld. T.D.), refd to. [para. 32, footnote 5].

R. v. Chaplin (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272; 27 Alta. L.R.(3d) 1; 36 C.R.(4th) 201; 96 C.C.C.(3d) 225; 26 C.R.R.(2d) 189, refd to. [para. 50].

R. v. Sunila and Soleyman (1987), 78 N.S.R.(2d) 24; 193 A.P.R. 24; 35 C.C.C.(3d) 289 (C.A.), refd to. [para. 56].

R. v. Horne & Pitfield Foods Ltd. (1982), 39 A.R. 428; 69 C.C.C.(2d) 240 (C.A.), refd to. [para. 57].

R. v. Hamilton (1991), 96 Sask.R. 278 (Q.B.), refd to. [para. 56].

Haley v. Ship Comox (1920), 20 Ex. C.R. 86, refd to. [para. 61].

Robillard v. Ship St. Roch (1921), 21 Ex. C.R. 132, refd to. [para. 61].

Manchester Ship Canal v. Horlock (1914), 12 Asp.(N.S.) 516 (C.A.), refd to. [para. 62].

Statutes Noticed:

Atlantic Fishery Regulations - see Fisheries Act Regulations (Can.).

Fisheries Act Regulations (Can.), Atlantic Fishery Regulations, SOR/86-21, sect. 3(3)(a) [para. 14].

Authors and Works Noticed:

Dreidger, Elmer A., Con­struction of Stat­utes (3rd Ed. 1994), pp. 285 to 288 [para. 24].

Ewaschuk, Eugene G., Criminal Pleadings and Practice in Canada (2nd Ed.) (1999 Update), pp. 9-26 [para. 20]; 15-2, 15-3 [para. 25]; 21-51 [para. 32].

Fernandez, The Annotated Canada Ship­ping Act, p. 39 [para. 61].

Counsel:

Ann Fagan, for Her Majesty the Queen;

John Sinnott, Q.C., for Jose Augusto Costa Pratas.

These matters were heard on October 25-29, November 2 and 8 and December 7, 1999, before L.D. Barry, J., of the New­foundland Supreme Court, Trial Division, who delivered the following decisions on February 9, 2000.