Differences

This shows you the differences between two versions of the page.

--- ns:r._v._hebert_no._2_1991_canlii_13822_ns_pc [2026/08/30 22:04] – victorzhou
+++ ns:r._v._hebert_no._2_1991_canlii_13822_ns_pc [2026/08/30 23:37] (current) – victorzhou
@@ Line 105: / Line 105: @@
   * (5) **R. v. Adams**, C.P.H. No. 03140, May 23, 1990, unpublished, a similar case to this where the length of 66 code were between 32 and 39 cm and thus the exactness of the gauge did not have the same  relevance.
-[11]
+[11] Mr. Burton has given a prima facie explanation of the exactitude of the gauge since he used a "[TRANSLATED] standard" to measure the 41 cm line and I am satisfied that the "purpose of that instrument to record" this measurement, in the words of Lord Goddard in **Nicolas v. Perry**, adopted by Arnup J. in **R. v. Bland** (1974), 20 C.C.C.(2d) 332 (Ont. C.A.), at p. 338.
+[12] No evidence places this exactitude into doubt. Mr. Burton's testimony goes against the first argument and is without doubt an application of **R. v. King** (1977), 35 C.C.C.(2d) 424 (Ont. HCJDC), where, to measure the distance between two points on the road, the officer used a two-hundred foot chain without providing evidence that the chain was built to measure this distance. I therefore accept that the gauge was exact.
+[13] Mr. Hébert and his crew, the majority of whom were present during the sampling at one time or another, testified that Mr. Burton placed the fish on the gauge while placing his hand below the fish, thereby shortening the length, that the fish were bent or twisted due to ice, so that the length measurements were inexact.
+[14] I do not accept this testimony. I find that the fishery officers performed their work professionally, fairly and precisely, honestly, as they testified. The testimony on the shortening of the length of a fish outside of water is simply conjecture.
+[15] Therefore, I am satisfied beyond a reasonable doubt that the sampling was conducted in an exact and fair way, that the results were transmitted and recorded with precision and that 33% of the cod were shorter than the legal minimum of 41 cm.
+====== Infringement of s. 7 Charter right ======
+[16] Even if it weren't too late for the defendant to raise this issue after the close of evidence, by way of memorandum (see **R. v. Drew** (1991), 104 N.S.R.(2d) 115; 283 A.P.R. 115 (N.S. SCAD)), this point has no merit: the gauge was in evidence and was a salient exhibit for the prosecution. It could have been verified at trial. This was not done.
+[17] The omission of the exact length of each fish was probably to the defence's benefit. In any case, the evidence was clear: the length of each fish was shorter than the minimum, often much shorter, and any doubt on the inclusion or exclusion of a
+[page 215] **R. v. Hébert (No. 2) (Batiot, J.)**
+fish was resolved in favour of the defendant.
+====== Due diligence ======
+[18] This offence is a strict liability offence, as described in **R. v. Sault Ste-Marie (City)**, [1978] 2 S.C.R. 1299;  21 N.R. 295; 40 C.C.C.(2d) 353; 85 D.L.R.(3d) 161; 3 C.R.(3d) 30;, at p. 1326 S.C.R.:
+<blockquote>
+. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability ...((//R. v. Sault Ste. Marie//, 1978 CanLII 11 (SCC), [1978] 2 SCR 1299, <[[https://canlii.ca/t/1mkbt]]>, retrieved on 2026-08-30.))
+</blockquote>
+[19] Did the defendant take "all reasonable steps to avoid" having onboard such an elevated percentage of fish that were too short or did he have a reasonable belief that his catch was legal?
+[20] The defendant left North Sydney on December 19, 1990, during a storm aboard the "Roger L" with three crew members. He only had until December 31, 1990 to fill his fishing quota.
+[21] The weather was too poor, took shelter at Cape North and departed again on December 20 toward zone 4T, to the north of St. Paul Island. The wind was between 35 and 40 knots. They laid anchor to fish and after taking some damage to their dragnet, in five hauls, they quickly brought onboard over 40,000 pounds of fish.
+[22] The work conditions were difficult: the vessel rolled and swayed. One member of the crew, using a gauge of 16 3/8 inches, built from wood, verified the catch and on each unloading discharged 300 to 400 hundred pounds to fish that were too small. The defendant also decided to go fishing in deeper waters and continued to bring aboard "[TRANSLATED] beautiful fish".
+[23] Citing **R. v. Campbell** (1989), 62 Nfld. & P.E.I.R. 176; 190 A.P.R. 176 (C.S.I.P.E.D.P.I.), **R. v. Longmire** (1988), 83 N.S.R.(2d) 266; 210 A.P.R. 266 (C.C.) and **R. v. Skinner** (1986), 80 N.S.R.(2d) 115; 200 A.P.R. 115 (C.C.), the defendant submits that his actions in delegating the inspection to a member of the crew, his observations of this work and rejection of 300 to 400 pounds of fish per haul, changing the depth of his fishing, all under difficult conditions of work demonstrate due diligence to avoid taking a catch that violates the rules and reasonable belief in facts other than those that existed.
+[24] The fisher in **Campbell** used a brass gauge instead of a stainless steel gauge recommended by the fishery officer. This was not negligence. The scallop fisherman, in **Longmire**, verified the average weight of the scallops, which was a practice proven by experience, and when this average turned out to be too low, he moved to a different fishing sector, which was found to be an exercise of due diligence. In **Skinner**, the fisherman did not have time to verify the length of his lobsters when he
+[page 216] **107 N.S.R.(2d) and 290 A.P.R.**
+brought them aboard due to the strong swell which placed him in danger and he did not have time to do so until he re-entered calmer waters, again exercising due diligence in those circumstances.
+[25] Here, the defendant, upon departure, knew of the atmospheric and maritime conditions which would make his fishing journey more arduous than custom. He had to take refuge for a half-day - and despite this he set sail for the fishing grounds voluntarily. In my view, he cannot use these contrary conditions to diminish his responsibility in his use of due diligence. The best path to take would have been to have never departed at all; if he departed, to pay particular attention that the conditions would not impact the established procedures.
+[26] Filling his quota by December 31, 1990 was an obligation he imposed on himself.
+[27] I find that it is likely that fish were returned to the water; I do not accept the specific number of 300 to 400 pounds of fish per haul given by each member of the crew. It is a coincidence that gives the sense of prepared testimony, and it is a precise and unanimous measurement in a sea of generalities and opinions.
+[28] Nothing prevented the defendant from admitting into evidence the 16 3/8 inch plank which the crew used. This was not done.
+[29] The defendant voluntarily blinded himself by given certain instructions to his crew believing too easily that they would be followed to the letter without verification. The facts show that, facing difficult atmospheric conditions, the defendant went fishing and tried to bring in the largest quantity of fish possible in the least time possible to return as early as possible and he did not ensure, in a reasonable manner, that his catch met the minimums which he knew existed. This would have required that the work be done with more procedure and precision. I find that Mr. Hébert demonstrated neither due diligence nor reasonable belief.
+[30] The defendant also submits that since there was a policy of tolerence, that is there was no punishment when the taking of fish less than the legal minimum did not exceed 15 to 20 percent of the total, he should not have been subject to prosecution.
+[31] The evidence does not show the relationship between the number and pounds of fish of shorter length; thus in pounds, the illegal take could be more or less than 33 percent. In any case, the evidence indicates that this tolerance applies to the number of fish rather than pounds and that this tolerance is applied by each fishery officer in their discretion. As stated by Clarke C.J. in **R. v. D'entremont (C.N.)** (1990), 96 N.S.R.(2d) 177; 253 A.P.R. 177, "[t]hat is not to say that the court equates due diligence with such tolerance".
+[32] Even if this could be a defence, it would have to be based on facts and direct statements and not on simple suppositions or hearsay. That is not the case here. The defendant is found guilty.
+Accused convicted.