IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Mr. Duncan is charged with an offence under section 78 of the Fisheries Act RSC 1985, c F-14.  In particular, it is alleged that he contravened section 26 of the Pacific Fishery Regulations, 1993 SOR 93-54, which provides:

[2]           On July 5, 2012, Mr. Duncan was the master of the “Western King”, a commercial fishing vessel owned by his grandfather.  On that day, he set the nets of the “Western King” to catch salmon, and caught a large number of them.  The “Western King” had previously been issued commercial fishing licences to fish for salmon, but the most recent license had expired in February, 2012.  A new commercial fishing license, which again authorized the “Western King” to fish for salmon, was issued on July 6, 2012.  As a result, there was in effect on July 5, 2012, no commercial fishing license which authorized the “Western King” to fish for salmon.

[3]           An offence under section 78 of the Fisheries Act is a strict liability offence; “… the Crown is required to prove neither mens rea nor negligence;   conviction may follow merely upon proof beyond a reasonable doubt of the proscribed act.”: R vs Henneberry 2009 NSCA 112;  [2009] NSJ No. 524 @ paragraph 33.  In this case, it is proven beyond a reasonable doubt that Mr. Duncan was fishing for salmon on July 5, 2012 and that the vessel in which he was fishing did not hold a commercial license to fish for salmon on that date.  The Crown has proven that Mr. Duncan committed the proscribed act.

[4]           Proof of the proscribed act does not necessarily result in conviction for a strict liability offence.  A number of defences may be available to the accused, depending on the nature and circumstances of the offence.  In this case, Mr. Duncan relies on the defence of “officially-induced error”, relying on the judgment of Chief Justice Lamer in R vs Jorgenson 1995 CanLII 85 (SCC), [1995] 4 SCR 55.  It should be noted that, while Chief Justice Lamer concurred in the result, the majority judgment (for the remaining eight justices) was delivered by Justice Sopinka, who did not agree that the defence of officially-induced error was available to Mr. Jorgenson.  However, the reasoning of the learned Chief Justice has been adopted and applied in later cases: R vs Ralph 2002 CanLII 54054 (NL SC), [2002] NJ No. 322; R vs Shiner 2007 NLCA 18; [2007] NJ No. 101; R vs Robinson 2001 BCSC 204; [2001] BCJ No. 435.

[5]           Mr. Duncan gave evidence, and explained that:

[6]           DFO is authorized by the Fisheries Act and the regulations to exercise discretionary authority over many aspects of fisheries management.  For example, the times and places in which commercial salmon fishing may be carried on, and the quantities to be caught, are determined by DFO from time to time.  DFO issues “fishery notices” to inform commercial fishers of those determinations.  Anyone may register to receive copies of fishery notices from DFO by e-mail when they are issued.

[7]           Like most commercial fishers, Mr. Duncan subscribed to that e-mail service.  On June 22 and July 3, 2012, DFO issued fishery notices in relation to the Area 23 salmon fishery.  Mr. Duncan received and read each of them before July 5, 2013.  Each of them contained the following passage:

[8]           I entirely accept Mr. Duncan’s sincerity, and that his description of his state of mind is accurate and truthful.

[9]           The practices described by Mr. Duncan are not authorized by the Fisheries Act and regulations.

[10]        At paragraph 28 of Jorgenson, Chief Justice Lamer said that the first step in considering a defence of officially-induced error is to determine whether the error was one of law or mixed fact and law.  I would characterize Mr. Duncan’s errors in the following way:

[11]        At paragraphs 29 - 30 of Jorgenson, Chief Justice Lamer said (underlining added):

[12]        I am satisfied that Mr. Duncan gave conscious thought to the licensing requirements before he embarked on his fishing voyage in July, 2012.  He inferred from his knowledge of past practice that temporary assignments of commercial fishing licences from one boat to another were permissible, and that an assignment of a quota by the Area “B” Seine Harvest Committee was sufficient to allow a boat to harvest the assigned quota.  I do not think it right to characterize his mistaken belief as an assumption.  Rather, it was an inference derived from industry practice and from his belief, well or ill founded, that DFO acquiesced in that practice.

[13]        I note Chief Justice Lamer’s observation that a person who invokes the defence of officially-induced error must show that he “… sought advice …” about the legal position.  Apart from his e-mail subscription to DFO’s fishery notices (which I discuss below), Mr. Duncan sought no advice in relation to the two legal questions in issue.  As will be apparent, it is unnecessary for me to decide the point in this case, but it may be that there are exceptions to the requirement as stated by Chief Justice Lamer.  I can imagine that, if:

[14]        The fundamental difficulty faced by Mr. Duncan is that, apart from the fishery notices, it has not been shown that he relied on any statement by any government official.  Mr. Ashton is not a government official.  Different considerations might arise if there were evidence that Mr. Ashton simply passed on to Mr. Duncan advice provided to Mr. Ashton by a government official, but there is no such evidence in this case.  No member of the Area 23 Working Group or of the Area B Seine Harvest Committee gave evidence.  As a result, there is no evidence of the proceedings of those committees, of DFO’s role in those committees, or of DFO’s participation in the organization and administration of pooled fisheries (either in general or in Area 23 in particular).  Mr. Duncan believes that DFO has acquiesced in the practices of pooled fisheries for years.  However, that belief is founded upon information provided to him by others.  Those with personal knowledge of DFO’s participation in pooled fisheries were not called to give evidence.  As a result, there is no evidentiary basis for a conclusion as to DFO’s knowledge of or acquiescence in the administration of pooled fisheries.  It may be that official acquiescence gives rise to a defence analogous to officially-induced error.  However, that important legal question should not be considered in the absence of a specific evidentiary foundation.

[15]        Because the fishery notices are the only government statement proven in this case, Mr. Duncan’s defence of officially-induced error must stand on them alone.  He says, and I accept, that he inferred from them that, if the “Western King” were designated to participate in the fishery by the Area 23 Working Group and the Area B Harvest Committee, then it was permissible for the “Western King” to fish under the authority of the temporarily assigned licenses.

[16]        At paragraph 33 of Jorgenson, Chief Justice Lamer said that an accused person who invokes the defence of officially-induced error must show that the advice relied upon was reasonable, but that “… the advice obtained will be presumed to be reasonable unless it appears on its face to be unreasonable”.  I think it important to bear in mind that, when he said that, Chief Justice Lamer had in contemplation a situation in which a citizen makes an individual enquiry of a government official and receives a direct, individual response to her enquiry.  Mr. Duncan’s situation is different.  He posed no question directly to a government official.  Rather, he relies upon his interpretation of a government publication, addressed to the public at large, which did not directly address the issue which now arises; i.e. whether one boat may lawfully fish under the authority of a temporary assignment of a commercial fishing license issued to another boat.  Assuming, without deciding, that the defence of officially-induced error may arise in such circumstances, it seems to me that the accused must show that his interpretation of the government publication, and his reliance upon it, were reasonable.

[17]        I do not think that Mr. Duncan’s interpretation of the fishery notices was reasonable, nor that his reliance on them for the relevant purpose was reasonable.  The fishery notices were directed to two questions: (i) which boats would be permitted to fish in Area 23 during the weeks in issue; (ii) how many salmon each boat would be permitted to catch.  The fishery notices were not directed in any way to the question whether the boats would be required to have valid commercial fishing licenses.  As noted above, the first two questions were within the ambit of the discretionary powers conferred on DFO by the statute and regulations.  The third was not.  The fishery notices were restrictive in operation.  They said, in effect, that no boat, licensed or not, would be permitted to participate in the specified fishery unless designated by the Area 23 Working Group and the Area B Seine Harvest Committee.  It was not reasonable to construe the fishery notices to be expansive in operation; i.e. to say, in effect, that, if designated by the Area 23 Working Group and the Area B Seine Harvest Committee, a boat would be excused from compliance with the licensing requirements of the regulations.

[18]        The actus reus being proven beyond a reasonable doubt, and the defence of officially-induced error having failed, it follows that Mr. Duncan must be convicted of the offence charged.