R. v. Stickland (J.), (2016) 379 Nfld. & P.E.I.R. 84 (NLPC)

JudgeGorman, P.C.J.
CourtNewfoundland and Labrador Provincial Court (Canada)
Case DateJanuary 29, 2016
JurisdictionNewfoundland and Labrador
Citations(2016), 379 Nfld. & P.E.I.R. 84 (NLPC);2016 NLPC 1314

R. v. Stickland (J.) (2016), 379 Nfld. & P.E.I.R. 84 (NLPC);

    1176 A.P.R. 84

MLB headnote and full text

Temp. Cite: [2016] Nfld. & P.E.I.R. TBEd. JA.048

Her Majesty the Queen v. John Stickland

(2016 NLPC 1314A000821)

Indexed As: R. v. Stickland (J.)

Newfoundland and Labrador Provincial Court

Gorman, P.C.J.

January 29, 2016.

Summary:

Stickland was charged with having obstructed a fishery officer, contrary to s. 62 of the Fisheries Act, R.S.C. 1985.

The Newfoundland and Labrador Provincial Court acquitted Stickland.

Evidence - Topic 4690

Witnesses - Examination - Testimonial recollection or refreshing witness's memory - Use of notes - General - Stickland was charged with having obstructed a fishery officer, contrary to s. 62 of the Fisheries Act - The Newfoundland and Labrador Provincial Court stated that "Guardian Bennett was insistent in maintaining that from approximately a two hundred metre distance he saw a dark braided line extending from the dory. He was the only officer who made such an observation. Guardian Bennett did not record this observation in his notes. Guardian Payne did not make any notes at all. In addition, Guardian Payne read two reports prepared by Officer Pittman as to what she observed. One Crown witness should not be reading the written observations of another Crown witness. In Wood v. Schaeffer, [2013] 3 S.C.R. 1053, the Supreme Court of Canada, at paragraph 67, indicated that police officers 'have a duty to prepare accurate, detailed, and comprehensive notes as soon as practicable after an investigation.' This did not occur in this case." - See paragraph 80.

Fish and Game - Topic 2083

Fishing offences - Enforcement offences - Obstruction of officers - The Newfoundland and Labrador Provincial Court stated that "In order for a person to be convicted of obstructing or hindering a fisheries officer pursuant to section 62 of the Fisheries Act, the officer must be 'carrying out duties or functions' under the Fisheries Act. ... [T]he 'authority of the fisheries officers is not absolute. There must be vigilance against abuse. Any inspection authorized by section 49(1) must have reasonable grounds to conclude that which is being inspected is connected to the fishery.' ... The obstruction or hindering can be active or passive. It can also be committed by failing or refusing to provide 'all reasonable assistance' to the officer or guardian [but not an inspector] carrying out the inspection." - See paragraphs 26 to 43.

Fish and Game - Topic 2083

Fishing offences - Enforcement offences - Obstruction of officers - The Newfoundland and Labrador Provincial Court stated that "... in determining whether a fishery officer or guardian was carrying out duties and functions pursuant to section 49 of the Fisheries Act, the officer or guardian must have a subjective belief that there is something in the place to be searched in respect of which the Fisheries Act or regulations apply. The search must be for the purpose of ensuring compliance with the Fisheries Act or regulations. In addition, the officer's or guardian's belief must be objectively reasonable in the circumstances." - See paragraphs 38 to 40.

Fish and Game - Topic 2083

Fishing offences - Enforcement offences - Obstruction of officers - The defendant was charged with having obstructed a fishery officer, contrary to s. 62 of the Fisheries Act - The Newfoundland and Labrador Provincial Court summarized the elements of the actus reus of s. 62 as follows: 1. that the accused obstructed or hindered a fishery officer, a guardian, or an inspector; and 2. that the fishery officer, guardian or inspector was carrying out duties or functions under the Fisheries Act - The court stated that "These functions or duties are not limited to investigation of Fisheries Act violations, but include actions directed toward regulating the fishery. However, this does not allow for searches or inspections without reasonable grounds. For an inspection or search to be in compliance with the Fisheries Act the guardian or officer must be acting in accordance with section 49 of the Fisheries Act. Section 49 limits the power of a guardian or officer to searches or inspections in which there are reasonable grounds to believe that there is anything in the 'place' (which includes onboard a vessel) to which the Fisheries Act applies. This requires proof of a subjective belief genuinely held which is justifiable on an objective basis. If the officer or guardian is conducting an inspection in accordance with section 49(1) of the Fisheries Act, section 49(1.2) requires that the person being inspected provide 'all reasonable assistance.' The obstruction or hindrance can be based on action or inaction. It can include a refusal to provide information if the request for that information is relevant to the administration of the Fisheries Act or regulations and it is information which the officer or guardian may reasonably require. Finally, refusal to provide assistance can constitute the hindrance or obstruction of an officer or guardian and thus an offence contrary to section 62 of the Fisheries Act." - See paragraphs 44 to 49.

Fish and Game - Topic 2083

Fishing offences - Enforcement offences - Obstruction of officers - The defendant was charged with having obstructed a fishery officer, contrary to s. 62 of the Fisheries Act - The Newfoundland and Labrador Provincial Court discussed obstruction by refusing to identify yourself - The court stated that "There is nothing wrong with an officer asking a person to identify themselves, particularly when they have reasonable grounds to believe an offence has been committed ... or the person's name is necessary for the officer to preserve the peace ... . However, the power to conduct an investigation 'does not impose an obligation on the detained individual to answer questions posed by the police' ... 'Generally, a person cannot then be convicted of obstructing a police officer in the execution of duty for simply refusing to say or establish who he or she is when asked to do so.' Whether a person's refusal to identify themselves to an officer will constitute an obstruction of that officer depends on the circumstances and the legislation which applies to the encounter. Thus, in Chanyi [Alta. Prov. Ct.] it was held that obstruction 'can be proven even if the accused person is passive by, for example, failing to provide identification documents which he had a duty to produce' ... However, that person's refusal to identify himself must obstruct the officer." - See paragraphs 50 to 52.

Fish and Game - Topic 2083

Fishing offences - Enforcement offences - Obstruction of officers - The defendant was charged with having obstructed a fishery officer, contrary to s. 62 of the Fisheries Act - The Newfoundland and Labrador Provincial Court stated that offences contrary to the Fisheries Act and its regulations constituted offences of strict liability - There was no mens rea element - As a result, though the act of obstruction or hindrance had to be purposely committed to commit the actus reus of the offence, the Crown did not have to prove that the accused intended his or her act to hinder or obstruct - See paragraphs 53 to 57.

Fish and Game - Topic 2083

Fishing offences - Enforcement offences - Obstruction of officers - A fishery officer (Pittman) and two fishery guardians (the "officers") were conducting a routine patrol when they came across Stickland in his dory - Pittman decided to conduct a fishery inspection - She motioned to Stickland to come over to the fishery vessel, but instead Stickland headed toward his cabin, which was on a nearby island, and drove his dory on to a beach in front of his cabin - Because of the water depth and the size of the fishery vessel, the officers were unable to follow Stickland and an inspection was not conducted -The officers were all of the opinion that Stickland could have stopped his dory and allowed for an inspection at sea - Stickland was charged with having obstructed a fishery officer, contrary to s. 62 of the Fisheries Act, R.S.C. 1985 - Stickland argued that it was too dangerous to stop and thus he took all reasonable steps to comply with the officers' directions - The Newfoundland and Labrador Provincial Court accepted Stickland's evidence - The court held that the Crown had failed to prove beyond a reasonable doubt that Stickland had committed the actus reus of the offence with which he was charged - The court concluded that the officers did not in fact see Stickland fishing and they misapprehended his leaving the area as they arrived - The officers, at the time that they motioned for Stickland to stop his vessel and to come to the fishery vessel, did not have reasonable grounds to believe that there was anything in Stickland's vessel in respect of which the Fisheries Act applied - The officers' personal belief was not objectively reasonable - See paragraphs 1 to 93.

Fish and Game - Topic 2083

Fishing offences - Enforcement offences - Obstruction of officers - A fishery officer (Pittman) and two fishery guardians (the "officers") were conducting a routine patrol when they came across Stickland in his dory - Pittman decided to conduct a fishery inspection - She motioned to Stickland to come over to the fishery vessel, but instead Stickland headed toward his cabin, which was on a nearby island, and drove his dory on to a beach in front of his cabin - Because of the water depth and the size of the fishery vessel, the officers were unable to follow Stickland and an inspection was not conducted -The officers were all of the opinion that Stickland could have stopped his dory and allowed for an inspection at sea - Stickland argued that it was too dangerous to stop and thus he took all reasonable steps to comply with the officers' directions - Stickland was charged with having obstructed a fishery officer, contrary to s. 62 of the Fisheries Act, R.S.C. 1985, by, inter alia, refusing to provide his name - The Newfoundland and Labrador Provincial Court acquitted Stickland - The court stated that "while at the beach the officers did not conduct an inspection. In addition, their overall observations at the beach do not provide an objective basis to conduct a search or inspection or an objective basis to demand section 49(1.2) information. Thus, for these two reasons I conclude that the officers were not carrying out duties and functions pursuant to the Fisheries Act. Mr. Stickland's refusal to provide his name does not in these circumstances constitute a violation of section 62 of the Fisheries Act." - See paragraphs 94 and 95.

Words and Phrases

Obstruct - The Newfoundland and Labrador Provincial Court discussed the meaning of "obstruct" as found in s. 62 of the Fisheries Act, R.S.C. 1985, c. F-14 - See paragraphs 28 to 34.

Counsel:

A. May, for Her Majesty the Queen;

G. Martin, Q.C., for Mr. Stickland.

This case was heard at Corner Brook, N.L., on January 22 and 25, 2016, by Gorman, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following decision on January 29, 2016.

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