R. v. Ross, (1991) 92 Nfld. & P.E.I.R. 51 (NFTD)

• Judge: Puddester, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: August 28, 1991
• Jurisdiction: Newfoundland and Labrador
• Citations: (1991), 92 Nfld. & P.E.I.R. 51 (NFTD)

R. v. Ross (1991), 92 Nfld. & P.E.I.R. 51 (NFTD);

    287 A.P.R. 51

MLB headnote and full text

Wesley Ross (appellant) v. R. (respondent)

(1989 St. J. Nos. 495, 496)

Indexed As: R. v. Ross

Newfoundland Supreme Court

Trial Division

Puddester, J.

August 28, 1991.

Summary:

The accused was convicted on two counts of failing to provide a true return of catch as required by s. 48 of the Fisheries Act. He appealed on various technical grounds.

The Newfoundland Supreme Court, Trial Division, dismissed the appeal.

Civil Rights - Topic 3107

Trials - Due process, fundamental justice and fair hearings - General principles - Void for vagueness doctrine - The Fish­eries Act, s. 48, required fishermen to make a "true return" of catch - "True return" was not defined - A captain sub­mitted that s. 48 was void for vagueness, because he did not know how to make the return, even though his log was submitted by him and accepted as a return - The Newfoundland Supreme Court, Trial Divi­sion, held that s. 48 was not void for vagueness - See paragraphs 25 to 34.

Civil Rights - Topic 4302

Protection against self-incrimination - General - Right to remain silent - The Newfoundland Supreme Court, Trial Divi­sion, held that the requirement under s. 48 of the Fisheries Act to provide a true return of catch did not violate the right to remain silent guaranteed by s. 7 of the Charter and did not prevent the use of the return as evidence on a charge of failing to provide a true return - See paragraphs 8 to 24.

Civil Rights - Topic 8626

Canadian Charter of Rights and Freedoms - Regulation of guaranteed rights - Vagueness rule - [See Civil Rights - Topic 3107 ].

Evidence - Topic 1584

Hearsay rule - Exceptions - Business records - Conditions to admission - The Newfoundland Supreme Court, Trial Divi­sion, held that under s. 30(1), (9), of the Evidence Act, if oral evidence of one person or a chain of persons within the business could be called to provide the information, then a business record of the information may be admitted - Further, the record may contain double hearsay, i.e., the maker of the record need not himself have personal knowledge of the truth of the information recorded - Hence, the court held that a fish plant manager's invoice respecting quantity of fish off-loaded was admissible, especially where the manager testified and was cross-ex­amined - See paragraphs 35 to 62.

Fish and Game - Topic 2107

Fishing offences - Defences - Due dili­gence - A captain submitted his log as a true return of catch under s. 48 of the Fisheries Act - The log recorded 9,500 pounds of gutted, head-off cod for each of two trips, but the actual totals were 57,000 and 28,000 pounds - The Newfoundland Supreme Court, Trial Division, held that the accused could hardly plead that he exercised due diligence in providing a true return - See paragraphs 31 to 32.

Fish and Game - Topic 2167

Fishing offences - Failure to furnish true return of catch - [See Civil Rights - Topic 4302 ].

Fish and Game - Topic 2901

Offences - Sentence, fines and penalties - Forfeiture - General - The Newfoundland Supreme Court, Trial Division, held that under the Fisheries Act, s. 58(1), (5), for­feiture of seized fish or its price, if sold, may be ordered for conviction of any offence - See paragraphs 64 to 68 - Further, forfeiture was warranted where the accused was convicted of providing a false return of catch, which grossly underesti­mated the actual catch - See paragraphs 70 to 77.

Cases Noticed:

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1; 57 C.C.C.(3d) 1; [1990] 5 W.W.R. 1, refd to. [para. 12].

R. v. McCaul (1989), 90 N.S.R.(2d) 426; 230 A.P.R. 426 (C.A.), consd. [para. 14].

R. v. Hicks (1988), 28 O.A.C. 118; 42 C.C.C.(3d) 394 (Ont. C.A.), dist. [para. 17].

R. v. McCaul (1988), 87 N.S.R.(2d) 361; 222 A.P.R. 361 (N.S.C.C.), revd. 90 N.S.R.(2d) 426; 230 A.P.R. 426 (C.A.), consd. [para. 21].

R. v. McCaul (1988), 87 N.S.R.(2d) 344; 222 A.P.R. 344 (N.S.C.C.), revd. 90 N.S.R.(2d) 426; 230 A.P.R. 426 (C.A.), dist. [para. 22].

R. v. Piercey (1986), 60 Nfld. & P.E.I.R. 76; 181 A.P.R. 76 (Nfld. C.A.), appld. [para. 27].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295; 85 D.L.R.(3d) 161; 3 C.R.(3d) 30; 40 C.C.C.(2d) 353, appld. [para. 31].

R. v. Grimba and Wilder (1977), 38 C.C.C.(2d) 469 (Ont. C.C.), appld. [para. 45].

R. v. Biasi et al. (1981), 62 C.C.C.(2d) 304 (B.C.S.C.), appld. [para. 46].

R. v. Anthes Business Forms Ltd. (1975), 26 C.C.C.(2d) 349 (Ont. C.A.), dist. [para. 47].

R. v. Penno (1977), 35 C.C.C.(2d) 266 (B.C.C.A.), consd. [para. 52].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 11].

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 30(1) [para. 39]; sect. 30(9) [para. 56].

Evidence Act (Canada) - see Canada Evidence Act.

Fisheries Act, R.S.C. 1970, c. F-14, sect. 48 [para. 8]; sect. 58 [para. 64].

Counsel:

David Eaton, for the appellant accused;

Anne Fagan, for the respondent Crown.

This case was heard on October 16 and 17, 1990, before Puddester, J., of the New­foundland Supreme Court, Trial Division, who delivered the following judgment on August 28, 1991: