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====== R. v. Hébert (No. 2), 1991 CanLII 13822 (NS PC) ======

Original Source: //R. v. Hébert (No. 2)//, 1991 CanLII 13822 (NS PC), <[[https://canlii.ca/t/gq3s3]]>, retrieved on 2026-08-29.

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

Her Majesty the Queen (prosecution - appellant) v. \\
Jean-Marc Hébert (accused - respondent) \\
(No. 219358)

**Indexed As: R. v. Hébert (No. 2)**

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

[page 211] **R. v. Hébert (No. 2) (Batiot, J.)**

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

This case was heard on June 20, 1991, at Sydney, N.S., by Batiot, J., of the Nova Scotia Provincial Court. 

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

**[1] Batiot, J.**: Around 9:00 AM of December 22, 1990, Mr. Clifford Burton, fishery officer of the Ministry of Fisheries and Oceans, was called to the government wharf at North Sydney in Nova Scotia to inspect the hold of the "Roger L", a fishing vessel commanded by Jean Marc Hébert, the defendant.

[2] He arrived in wind and rain. After introducing himself to the defendant, Mr. Burton examined the hold and observed a sufficient number of cod whose length seemed to be less than 41 cm (the minimum legal length) to give him reasonable

[page 212] **107 N.S.R.(2d) and 290 A.P.R.**

grounds to continue his investigation.

[3] After changing and being joined by fishery officers Nicholson and MacAskill, he conducted sampling: the entire catch was loaded into 363 containers, each of which contained exactly 125 pounds of fish. A number is assigned to each container and is recorded on one of three count sheets. On the wharf, a fishery officer picked ten containers by random (first sheet, numbers 2, 21, 32, 66, 101, 137; second sheet, numbers 38, 73; third sheet, numbers 1 and 16). Each fish in these containers was measured with a plastic gauge. Those that were 41 cm in length or longer with placed into an empty container; those that were shorter than the legal length were placed into another container and the results were as follows:

^ count ^^^^
^ sample number ^ longer ^ shorter ^ total ^
| 1             | 50     | 24      | 74    |
| 2             | 50     | 19      | 79    |
| 3             | 46     | 32      | 78    |
| 4             | 56     | 26      | 82    |
| 5             | 50     | 34      | 84    |
| 6             | 53     | 28      | 81    |
| 7             | 51     | 24      | 75    |
| 8             | 52     | 28      | 80    |
| 9             | 59     | 21      | 80    |
| 10            | 50     | 26      | 76    |
^ Total         ^ 527    ^ 262     ^ 789   ^

33% of the cod were shorter than the minimum length (262 - 789), and since the sample was, in pounds, more than 1% of the total catch (1250 pounds - 44,774 or 2.8%) - the minimum rate so that the sample could represent the the whole catch - the catch contained at least, numerically, 33% fish whose length was less than the legal minimum.

[4] The defendant argues:

  * (1) The actus reus has not been proven beyond a reasonable doubt because the procedure employed to measure the code was inexact for two reasons:
    * (a) there was no evidence that the gauge measured 41 cm exactly;
    * (b) the manner in which the fish were measured by the gauge did not allow for exact measurement.

[page 213] **R. v. Hébert (No. 2) (Batiot, J.)**

In any case, according to the buyer (procurer) for La Coopérative des Pêcheurs de Chéticamp, cod fish shrink 1/8 to 1/4 inch after being taken out of the water or several hours.

  * (2) Because the fishery officers did not register the exact length of each fish and the buyer or procurer allow the defendant to measure the precision of the gauge, the defendant's right to make full answer and defence, contrary to s. 7 of the **Charter**.

  * (3) In all ways, the defendant used due or deliberate diligence in the circumstances.

[5] Another issue, debated at trial, was abandoned: the issue of at least seven days notice for the defendant for the introduction of the the sampling results, given that the notice was served on him on June 14 and the trial took place on June 20, was resolved in favour of the prosecution since this evidence was not hearsay.

**Actus reus**

[6] Has the prosecution established the exactitude and the precision of the gauge?

[7] At the start of trial, the prosecution applied for an adjournment on the basis that the witness who was to establish the exactitude of the gauge was not present. I dismissed this application and the trial began.

[8] It turned out that Mr. Burton had a first career as a mechanic and diesel engine reconstruction and that he received intensive training with very precise instruments to measure even extremely short distances (to the thousandth of an inch). Given his qualifications and his particular experience, I allowed him to give opinion testimony on the precision of the gauge which he used that day.

[9] This gauge, offered as a prosecution exhibit, is constructed with thick white plastic; it is a sold plate at least eight cm longer, having a stop at its end and at the other end, the numbers 13, 14, 15, 16, 17 and a line drawn in ink after the line for the number 16. Mr. Burton indicated that these numbers indicated inches from the stop and that by using a "standard" or master obtained from the Minister and built specifically to measure or verify other gauges or instrument, he had determined that this line marked 41 cm, 1/8 of an inch outside the line marking 16 inches and that these subsequent observations demonstrated that, in his opinion, that the distance was 41 cm.

[10] The defence objected since Mr. Burton profession was not to verify the exactitude of gauges and that he had not verified the exactitude of the master "standard" which he used, he must have been relying on hearsay. The rely on the folowing:

  * (1) **The Law on Speeding and Radar** (Toronto, Butterworth and Company (Canada) Limited, 1985, at p. 19:

<blockquote>
There is no presumption that a tape measure or chain can measure distances correctly. There has to be evidence of the accuracy of the measuring device.
</blockquote>

  * (2) Peter K. McWilliams, W.C., **Canadian Criminal Evidence** (Ont: Canada Law Book Limited, 1984) at p. 630:

<blockquote>
... in the case of radar equipment the court will not presume it is accurate
</blockquote>

[page 214] **107 N.S.R.(2d) and 290 A.P.R.**

<blockquote>
without some testimony by the operator that it is in good working order and capable of measuring speed: **R. v. Grainger** (1958), 120 C.C.C. 321 (Ont. C.A.); a court will not take judicial notice of this: **R. v. Waschuk** (1970), 1 C.C.C.(2d) 463 (Sask. Q.B.).
</blockquote>

  * (3) **R. v. Adams** (1988), 85 N.S.R.(2d) 39; 216 A.P.R. 39 (C.C.), where Cacchione J., in a case of refusing to provide a breath sample for analysis by an approved screening device, indicated that the evidence must show that the instrument was functioning.

  * (4) **R. v. Cameron** (1977), 20 N.S.R. 417 (NS SCAD), where the prosecution had to prove that the Borgenstein instrument was a model approved by the regulations.

  * (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] 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>
2. 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.