R. v. Ralph (S.), 2008 NLCA 70

JudgeRowe, Mercer and Barry, JJ.A.
CourtCourt of Appeal (Newfoundland)
Case DateNovember 21, 2008
JurisdictionNewfoundland and Labrador
Citations2008 NLCA 70;(2008), 281 Nfld. & P.E.I.R. 324 (NLCA)

R. v. Ralph (S.) (2008), 281 Nfld. & P.E.I.R. 324 (NLCA);

    863 A.P.R. 324

MLB headnote and full text

Temp. Cite: [2009] Nfld. & P.E.I.R. TBEd. JA.002

Shawn Ralph (appellant) v. Her Majesty The Queen (respondent)

(08/05; 2008 NLCA 70)

Indexed As: R. v. Ralph (S.)

Newfoundland and Labrador Supreme Court

Court of Appeal

Rowe, Mercer and Barry, JJ.A.

November 21, 2008.

Summary:

The accused appealed his conviction for catching more crab than his snow crab licence allowed on the grounds that the trial judge misapplied the defence of due diligence and failed to give sufficient reasons for his decision.

The Newfoundland and Labrador Supreme Court, Trial Division, in a judgment reported (2007), 270 Nfld. & P.E.I.R. 1; 822 A.P.R. 1, dismissed the appeal. The accused applied for leave to appeal.

The Newfoundland and Labrador Court of Appeal denied leave to appeal. There was no merit in the two issues of law raised on appeal.

Courts - Topic 583

Judges - Duties - Re reasons for decisions (incl. notes) - [See Fish and Game - Topic 2107 ].

Criminal Law - Topic 7602

Summary conviction proceedings - Appeal to a court of appeal - Requirement of leave - [See Fish and Game - Topic 2107 ].

Fish and Game - Topic 2107

Fishing offences - Defences - Due diligence - The accused appealed his conviction for catching more crab than his snow crab licence allowed on the ground that the trial judge misapplied the defence of due diligence by finding that he did not exercise reasonable care without setting out what would have constituted reasonable care - The summary conviction appeal court, in dismissing the accused's conviction appeal, held that whether an accused exercised due diligence was a fact finding subject to review on the basis of palpable and overriding error - There was no obligation on a trial judge to set out how the accused could have avoided overfishing in making a finding that there was no due diligence - The accused was an experienced fisherman who caught 1,445 pounds more of crab than his 203,081 pound licence allowed over the year - The overage resulted from improper estimates on his last three fishing trips of the year - The trial judge did not err in finding that the accused, with knowledge of improper estimates in his first two of his last three trips, failed to take reasonable steps in his last trip to correct how he estimated his catch to ensure that he did not exceed his quota - The Newfoundland and Labrador Court of Appeal denied the accused leave to appeal - The only questions of law raised on appeal were that (1) the appeal court erred in finding that the trial judge was not required to set out what steps the accused could have taken to exercise due diligence and (2) the appeal court erred in finding that the trial judge provided sufficient reasons for judgment - Neither issue had any merit - The accused bore the onus of establishing due diligence - The trial judge's reasons, although concise, were obviously sufficient to provide meaningful appellate review.

Cases Noticed:

R. v. Simmons (G.B.) (2003), 229 Nfld. & P.E.I.R. 257; 679 A.P.R. 257 (Nfld. Prov. Ct.), refd to. [para. 8].

R. v. Croft (R.J.) et al. (2006), 256 Nfld. & P.E.I.R. 1; 773 A.P.R. 1 (N.L.C.A.), refd to. [para. 13].

R. v. R.R. (2008), 238 O.A.C. 242; 90 O.R.(3d) 641 (C.A.), refd to. [para. 13].

R. v. Rhynes (C.M.) (2004), 239 Nfld. & P.E.I.R. 89; 709 A.P.R. 89 (P.E.I.C.A.), refd to. [para. 15].

New Brunswick (Minister of Public Safety) v. 504174 N.B. Ltd. (2005), 279 N.B.R.(2d) 307; 732 A.P.R. 307 (C.A.), refd to. [para. 16].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 839(1)(a) [para. 12].

Counsel:

Paul Adams, for the appellant;

E. Mark Rogers, for the respondent.

This application was heard on November 21, 2008, before Rowe, Mercer and Barry, JJ.A., of the Newfoundland and Labrador Court of Appeal.

The Court orally dismissed the application on November 21, 2008, with written reasons filed by Mercer, J.A., on December 22, 2008.

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