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====== R. v. Hébert (No. 1), 1991 CanLII 13821 (NS PC) ======

Original Source: //R. v. Hébert (No. 1)//, 1991 CanLII 13821 (NS PC), <[[https://canlii.ca/t/gq3p9]]>, retrieved on 2026-08-29.

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[page 207]

Her Majesty the Queen (prosecution) v. \\
Jean-Marc Hébert (accused) \\
(No. 213762)

**Indexed As: R. v. Hébert (No. 1)**

Nova Scotia Provincial Court \\
Batiot, J. \\
October 10, 1991.

[page 208] 107 N.S.R.(2d) and 290 A.P.R.

**Counsel:** \\
Mr. MacMillan, for the Crown; \\
Mr. LeBlanc, for the accused.

This case was heard on June 19, 1991, at Chéticamp, N.S., before Batiot, J., of the Nova Scotia Provincial Court. 

On October 10, 1991, Batiot, J., delivered the following decision.

**The Evidence**

**[1] Batiot, J.**: On December 29, 1990, Mr. Alex MacDonald, a veteran navigator of the Armed Forces was working onboard a patrol aircraft of the Compagnie Provinciale Aérienne chartered by the Ministry of Fisheries and Oceans. He was in the company of a pilot, a co-pilot, a navigator and a fishery officer. They departed Halifax around nine thirty - it is unclear whether this was local time or universal time - towards Cape North in Nova Scotia to patrol fishery zones 4VN and 4T.

[2] Aboard the Beach 200 Super King Air, there was a radar, a computer navigation system, an aerial photo surveillance device and an IBM-compatible computer. Mr. MacDonald was the radar operator who monitored for echoes that could be boats. When he detected one, he indicated their presence to the fishery officer Smith who would then give the pilot a command to proceed to verify the detection. Mr. MacDonald advised Mr. Smith that an echo could be a target to verify if the radar data, inputted into the computer which had an ocean map and the border between fishing zones 4T and 4VN, indicated that the target was highly likely to be in zone 4VN.

[3] Around 1400 hours universal time (that is 10:00 AM local time), as the aircraft patrolled the border between zones 4T and 4VN, Mr. MacDonald observed six echoes on his radar screen and the computer indicated to him that these echoes seemed to be in zone 4VN. After being informed of these echoes, Mr. Smith gave corresponding instructions to the pilot to proceed toward the echoes and once visual contact was made, Mr. MacDonald, with the aid of the photo device which was programmed with the date and time, took photos which included photos of the "Roger L" at an attitude of 50 feet and at a distance of less than 100 feet which were admitted into evidence.

[4] This data and identification were inputted into the computer and eventually this computer produced a printout (prosecution exhibit V-2) of the activities of this patrol indicating the target, time, registration number, vessel name, nationality, longitude and latitude, zone, activity, type, course and speed, whether there was a photo or not and notes.

[5] Captain Hanlon, qualified by the court as an expert in navigation used the geographic coordinates indicated by exhibit V-2 to establish the position of the six trawlers on the ocean map, including that of the "Roger L", as well as the border between zones 4T and 4VN; the trawlers were a little more than five miles to the east of the border witin zone 4VN.

[6] The fundamental issue to resolve is whether or not the prosecution has established that the

[page 209] **R. v. Hébert (No. 1) (Batiot, J.)**

"Roger L", commanded by the defendant, was fishing in zone 4VN, a zone where he was forbidden to wish according to the permit he possessed.

[7] I accept that the photos of the "Roger L" represent the boat in a fair way and are therefore admissible (see: **R. v. Creemar**, [1968] 1 C.C.C. 14 (N.S.C.A.)). I also accept that Mr. Smith and Mr. MacDonald's communications to the computer operator onboard were represented accurately by the operator in regards to the identity, course and speed of the vessel, as well as the fact that it was fishing. It remains to be decided whether the latitude and longitude of the "Roger L" and therefore its position on the ocean map is reliable.

[8] Exhibit V-2 was introduced into evidence in accordance with the decision in **R. v. Sunila and Soleyman** (1986), 73 N.S.R.(2d) 308; 176 A.P.R. 308 (C.C.N.E.), where in a trial by jury, MacIntosh J. admitted into evidence a printout that was similar to the one in this case, prepared by the Canadian Armed Forces which conducted aerial surveillance in support of the police in a case of the importation of narcotics. After having considered sections 30(10)(a)(ii) and 26(1) of the **Evidence Act**, R.S.C. (1985), c. C-5, he found that this printout was an exception to the rule against hearsay following the Supreme Court of Canada's decision in **Ares v. Venner** (1970), 14 D.L.R.(3rd) 4, since it was made contemporaneously with the events it recorded, made by someone who had personal knowledge of the events and this person was under a duty to record the events. At trial, I therefore refused an defence application for a not guilty verdict; the prosecution still had to established the truthfulness of the information summarized by exhibit V-2 on the exact position of the "Roger L" on December 29, 1990.

[9] Mr. MacDonald was not qualified as an expert witness even though he appeared to me to have considerable experience in aerial navigation. He described the systems that were aboard the aircraft. The computer automatically recorded data from the Global Positioning System or (G.P.S.), two Loran C systems and the radar. This computer probably used one or more programs to function, apart from Mr. MacDonald's testimony on the precision of the navigation on that day-that day and the eight months before that, there was no evidence that all these systems worked together with precision. The court does not know whether the data obtained from these navigation systems is reliable, that the programs which the computer used were precise. I cannot accept Mr. MacDonald's opinion nor evaluate the evidence for the risks, the general precision and particular precision of these systems. I cannot automatically admit them either, despite the fact that the Loran C and in particular the radar have been in continual use for several years.

[10] Mr. MacDonald may certainly give a lay opinion: see **R. v. Gratt** (1982), 45 N.R. 451 (S.C.C.), even if this opinion depends on special knowledge, **R. v. Preeper** (1888), S.C.R. 401 (S.C.C.). However, just because he is a basic radar operator, it is not evident that he is qualified to discuss the G.P.S. and Loran C systems as well as their relationship with the computer.

[11] A germane decision is **R. v. Chow** (1991), 118 A.R. 64; 65 C.C.C.(3d) 162, where Conrad J. of the Court of Queen's Bench of Alberta considered the Multanova photo-radar device. This motor vehicle road speed detection device not only

[page 210] **107 N.S.R.(2d) and 290 A.P.R.**

took photos of the vehicle but also indicated the time, date and speed observed. At pages 169 and 170 C.C.C., he said:

<blockquote>
The Crown has failed to adduce technical evidence of the general trustworthiness of the process of speed detection by means of the Multanova radar camera and judicial notice cannot be taken of that fact at this time. That evidence of trustworthiness could be based on general experience as to the class of instrument with a knowledge that the mechanism of this instrument complies with the trustworthy type. There being no evidence on that issue the trial judge could not consider it ...

At this stage of use of the Multanova camera a person qualified to give evidence as to the workings, risk and general reliability of the camera in speed detection is necessary before a court can even consider whether or not it is trustworthy enough to accept as evidence of speed ...

On the facts of this case there is no testimony by a qualified technician as to the general trustworthiness of the Multanova radar camera in calculating speed. As such, the photograph cannot be used as proof of the facts of speed of that vehicle. Where the technical evidence, without more, may prove to be the foundation of a conviction the courts may be apprised by means of technical evidence of the trustworthiness of the instrument. That can easily be done. It was not done here.
</blockquote>

[12] Some of the information recorded in exhibit V-2 is the result of calculations and electronic communications without a human intermediary - in particular I refer to the reception and the data of the navigation system - this simple fact could distinguish this case from **Ares v. Venner**, supra.

[13] Absent sufficient and admissible evidence that all the systems produced trustworthy results (the court is not aware of how Mr. MacDonald verified the precision earlier this morning) I cannot find beyond a reasonable doubt that the position of the "Roger L" that day was as indicated; for this reason I find the accused not guilty and have not considered his testimony.

Accused acquitted.