R. v. Rideout (R.K.), 2005 NSSC 4

• Judge: MacDonald, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 07, 2005
• Jurisdiction: Nova Scotia
• Citations: 2005 NSSC 4;(2005), 229 N.S.R.(2d) 290 (SC)

R. v. Rideout (R.K.) (2005), 229 N.S.R.(2d) 290 (SC);

 725 A.P.R. 290

MLB headnote and full text

Temp. Cite: [2005] N.S.R.(2d) TBEd. JA.029

Her Majesty the Queen (appellant) v. Ricky Kenneth Rideout (respondent)

(205333; 2005 NSSC 4)

Indexed As: R. v. Rideout (R.K.)

Nova Scotia Supreme Court

MacDonald, J.

January 7, 2005.

Summary:

Rideout was charged with contravening a condition of his crab fishing license, by fishing outside the area permitted by the license. He alleged due diligence.

The Nova Scotia Provincial Court, in a decision reported at 213 N.S.R.(2d) 393; 667 A.P.R. 393, convicted the accused. The court heard submissions as to the appropriate sentence.

The Nova Scotia Provincial Court, in a decision reported at 217 N.S.R.(2d) 6; 683 A.P.R. 6, imposed a fine of $4,000. The court declined to order forfeiture of the proceeds of the catch ($35,362). The Crown appealed the sentence.

The Nova Scotia Supreme Court allowed the appeal and imposed a fine of $2,000 and ordered forfeiture of the proceeds of the catch.

Fish and Game - Topic 2700

Offences - Sentence - Fines and penalties - General - Deterrence - The Nova Scotia Supreme Court stated that "regulation offences such as those provided under the Fisheries Act are designed to protect and preserve a valuable resource and any contravention of them must be taken seriously. The Fisheries are a natural resource and are in danger of being depleted or destroyed and this would have wide ramifications for not only fishers but society in general. Deterrence must be a primary consideration and penalties have to be imposed to reflect the seriousness of the offences and to force offenders to understand the ramifications for violation of these regulations to both themselves and society." - See paragraph 15.

Fish and Game - Topic 2708

Offences - Sentence - Fines and penalties - Forfeiture - Rideout was convicted of contravening a condition of his crab fishing license, by fishing outside the area permitted by the license (Area 24D) - The trial judge held that Rideout had an honest but mistaken belief that he was fishing within Area 24D - However, that belief was not reasonably held - Rideout was not fishing a species which was unlawful to catch per se - It was not a closed area - The fish were caught by a legal manner - Rideout had incurred significant costs as a result of the charge - One issue was whether the trial judge was required to order forfeiture of the proceeds of Rideout's catch ($35,362) under the mandatory forfeiture provision in s. 72(2) of the Fisheries Act - The sentencing judge held that s. 72(2) did not apply as the actual catching of fish was not an essential element of the offence - The Nova Scotia Supreme Court held that the trial judge did not err in finding that the mandatory forfeiture provisions of s. 72(2) did not apply in this case - See paragraphs 22 to 32.

Fish and Game - Topic 2708

Offences - Sentence - Fines and penalties - Forfeiture - Rideout was convicted of contravening a condition of his crab fishing license, by fishing outside the area permitted by the license (Area 24D) - The trial judge held that Rideout had an honest but mistaken belief that he was fishing within Area 24D - However, that belief was not reasonably held - Rideout was not fishing a species which was unlawful to catch per se - It was not a closed area - The fish were caught by a legal manner - Rideout had incurred significant costs as a result of the charge - The Crown sought, inter alia, forfeiture of the proceeds of Rideout's catch ($35,362) under the permissive forfeiture provision in s. 72(1) of the Fisheries Act - The trial judge imposed a fine of $4,000, but exercised his discretion not to order forfeiture - The Nova Scotia Supreme Court allowed the Crown's appeal and imposed a fine of $2,000 and ordered forfeiture of the proceeds of the catch - The trial judge failed to give adequate effect to the principle of general deterrence - See paragraphs 33 to 45.

Fish and Game - Topic 2714

Offences - Sentence - Fines and penalties - Fishing in prohibited area - [See both Fish and Game - Topic 2708 ].

Fish and Game - Topic 2904

Offences - Forfeitures - Limitations on power of forfeiture - [See both Fish and Game - Topic 2708 ].

Cases Noticed:

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37; 102 C.C.C.(3d) 193, refd to. [para. 13].

R. v. Muise (D.R.) (No. 4) (1994), 135 N.S.R.(2d) 81; 386 A.P.R. 81; 94 C.C.C.(3d) 119 (C.A.), refd to. [para. 13].

R. v. MacDonald (C.V.) (2003), 213 N.S.R.(2d) 344; 667 A.P.R. 344; 2003 NSCA 36, refd to. [para. 14].

R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867; 275 N.R. 201; 206 Nfld. & P.E.I.R. 304; 618 A.P.R. 304, refd to. [para. 16].

R. v. Savory (1992), 108 N.S.R.(2d) 245; 294 A.P.R. 245 (C.A.), refd to. [para. 16].

R. v. Mood (J.D.) (1999), 174 N.S.R.(2d) 292; 532 A.P.R. 292 (C.A.), refd to. [para. 22].

R. v. Morash (S.E.) (1994), 129 N.S.R.(2d) 34; 362 A.P.R. 34 (C.A.), refd to. [para. 23].

R. v. Paul (J.) (2003), 217 N.S.R.(2d) 12; 683 A.P.R. 12 (S.C.), refd to. [para. 29].

R. v. Smith & Whiteway Fisheries Ltd. (1994), 129 N.S.R.(2d) 152; 362 A.P.R. 152 (S.C.), refd to. [para. 37].

R. v. Croft (R.J.) (2004), 235 Nfld. & P.E.I.R. 156; 699 A.P.R. 156; 2004 NLSCTD 46, refd to. [para. 41].

Statutes Noticed:

Fisheries Act, R.S.C. 1985, c. F-14, sect. 72(1), sect. 72(2) [para. 20].

Counsel:

Paul Adams, for the appellant;

Harvey M. McPhee, for the respondent.

This appeal was heard at Sydney, N.S., before MacDonald, J., of the Nova Scotia Supreme Court, who delivered the following written decision on January 7, 2005.