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

[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

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:

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.

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

… in the case of radar equipment the court will not presume it is accurate

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

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.).

• (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.

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