R. v. Rupp, 2015 BCPC 301 (CanLII)
Citation: R. v. Rupp Date: 20151030
2015 BCPC 0301 File No: E48337
Registry: Nanaimo
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
GERALD JAMES RUPP
REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE GOUGE
Counsel for the Crown: S. Simpson
Counsel for the Defendant: R.F. Johnston and S. Irving
Place of Hearing: Nanaimo, B.C.
Dates of Hearing: April 21, 22, July 31, October 30, 2015
Date of Judgment: October 30, 2015
The Issue
[1] Mr. Rupp is charged with fishing for salmon with a barbed hook, contrary to section 49 of the British Columbia Sport Fishing Regulations, 1996 SOR96-137 (“the Regulations”). Mr Rupp admits that he was fishing with a barbed hook, but denies that he was fishing for salmon. He says that he was fishing for rockfish. At the time and place where he was fishing, the Regulations forbade the use of barbed hooks when fishing for salmon and permitted the use of barbed hooks when fishing for other species.
The Evidence
[2] On August 30, 2014, two fisheries officers, Mr. Tadei and Mr. Pawloski, were on patrol in a Department of Fisheries & Oceans (“DFO”) patrol boat in Horswell Channel, near Nanaimo, British Columbia. They observed Mr. Rupp and a group of 3 - 4 other people in Mr. Rupp’s boat. Mr. Rupp and his boat were familiar to them because Mr. Rupp carries on business as a sports fishing guide. Mr. Rupp’s boat had two fishing lines in the water, one on each side. Mr. Tadei and Mr. Pawloski brought their patrol boat alongside Mr. Rupp’s boat and asked him to reel in the fishing line on the starboard side to allow Mr. Pawloski to board Mr. Rupp’s boat. Mr. Rupp complied with that request. When the line was reeled in, Mr. Tadei asked Mr. Rupp to hand him the lure at the end of the line. Mr. Rupp did so. The lure had a barbed hook. Mr. Pawloski boarded Mr. Rupp’s boat. He asked to see the sport fishing licenses of those who were fishing. Mr. Rupp replied that he was the only one who was fishing and showed Mr. Pawloski his license. Mr. Pawloski asked Mr. Rupp what he was fishing for, and Mr. Rupp replied “rockfish”. Mr. Pawloski observed that:
a. the downrigger attached to the port-side fishing line indicated that 100 feet of line were out;
b. the depth sounder aboard Mr. Rupp’s boat indicated a water depth of 199 feet;
c. there were two fresh chinook salmon and one fresh sockeye salmon in the fish locker in the stern of Mr. Rupp’s boat.
While Mr. Pawloski was making his observations aboard Mr. Rupp’s boat, Mr. Tadei checked the depth sounder on the DFO boat. It indicated a water depth of 199 feet. Mr. Pawloski asked Mr. Rupp to reel in the port-side fishing line. Mr. Rupp complied with that request. When the lure at the end of the line came aboard, a juvenile coho salmon was on the hook. Mr. Rupp shook it off the hook and dropped it back in the water. The hook was barbed.
[3] The evidence does not provide an estimate of the time span over which the events described in paragraph 2 occurred, but it must have been a few minutes. During that time, the two vessels travelled slowly, side by side, on a circular course. At the end of the sequence of events described in paragraph 2, Mr. Tadei pressed an icon on the DFO vessel’s navigation equipment, causing the equipment to mark the vessel’s location electronically on an electronic chart of the area. The sounding indicated by the chart at that location is 56 metres (a little over 183 feet).
[4] Mr. Pawloski and Mr. Tadei acknowledge that:
a. other species of fish live in Horswell Channel, and that many sports fishers fish for those other species in those waters;
b. some of those species live and feed at depths of 100 feet or so.
However, they point out that rockfish live and feed on the bottom. A person fishing for rockfish, they say, would not trail his lure 100 feet above the bottom. The Crown’s difficulty is that neither Mr. Tadei nor Mr. Pawloski was tendered or accepted as an expert witness. For that reason, their evidence as to the habits of rockfish and fishing practices in relation to rockfish is not admissible. Similar evidence was offered by Mr. Wicks, a witness called by Mr. Rupp. However, Ms. Simpson objected to the evidence of Mr. Wicks, on the ground that no notice had been given of his opinion evidence. I sustained that objection, and excluded his evidence. The trial was then adjourned for three months.
[5] When the trial resumed, Mr. Johnston and Mr. Irving had been retained, and assumed conduct of the defence. They called Mr. Tutty, who was tendered and qualified as an expert in sports fishing practices. Mr. Tutty says that:
a. The rods and lures used by Mr. Rupp on the day in question are suitable for trolling for either rockfish or salmon, and are commonly used when fishing for either species.
b. Horswell Channel is a place where herring breed, spawn and live in abundance. As a result, it is a fertile fishing ground for other species, including salmon and rockfish, which feed on herring. While it is true that rockfish live on the bottom, their feeding habits depend on where their prey are found. In places like Horswell Channel, where herring are found at all depths in the water column, the rockfish ascend to feed, and so may be caught at any depth.
c. In Horswell Channel, the only difference in fishing technique when fishing for rockfish, rather than salmon, is that one trolls at a slower speed when trolling for rockfish. That is so for two reasons:
(i) Rockfish are slower swimmers, and find it difficult to catch a lure trolled at salmon-speed.
(ii) When trolled at salmon-speed, the lures effectively mimic the appearance of feeding salmon, and so attract salmon seeking to compete for the same prey. When trolled at slower speed, the mimicry is less effective, and the lure is less attractive to salmon.
One can catch a salmon when trolling at any speed. It is very unusual to catch a rockfish when trolling at salmon-speed.
d. “You never know what you are going to catch. You just reel in whatever bites.”
d. Generally, one would troll for rockfish in Horswell Channel in the lower third of the water column. However, one would troll at lesser depths if that is where the herring are.
e. If, as often happens, one catches a salmon with a barbed hook while trolling for rockfish, the practice is to throw it back.
[6] Mr. Rupp gave evidence. He said that:
a. On the day in question, he was guiding a party of sports fishers.
b. Earlier in the day, they caught 30 - 40 salmon, using the rods and reels which were in use when the DFO officers boarded his boat, but with barbless hooks. They released all of the salmon except the three found in the locker.
c. One of his clients became seasick, so they decided to troll for home, which would mitigate the motion of the boat.
d. One of the other clients expressed a strong desire to catch a rockfish, so Mr. Rupp changed the lines to barbed hooks and trolled through Horswell Channel, where they encountered the DFO officers.
e. At and after the time when he changed the gear to barbed hooks, it was his purpose and intention to catch rockfish, not salmon.
f. On previous occasions, he has caught both salmon and rockfish at all levels of the water column in Horswell Channel.
g. He has fished for salmon in Horswell Channel on many occasions over many years. In 2014, he caught more than 100 salmon in Horswell Channel.
h. If he caught a salmon with a barbed hook, he would immediately release it, as he did the juvenile salmon which the DFO officers found on his line on the day in question.
[7] There was some inconsistency in the evidence about trolling speeds for salmon and rockfish. Mr. Rupp said that he would troll for salmon at 2 -3 knots, and for rockfish at 1.5 knots. He said that he was trolling at 1.5 knots when he was approached by the DFO officers. Mr. Tutty said that he would troll for salmon at 2 knots. He did not say at what speed he would troll for rockfish. In any case, these figures can only be rough approximations. Mr. Tutty pointed out that what matters is the speed of the boat (or lure) relative to the speed of the water. If one is trolling down-current for salmon, one wants to troll at 2 knots faster than the speed of the current. So, in making his decision about how fast to troll, the fisher must estimate the speed of the current and attempt to adjust the speed of the boat so as to proceed at approximately 2 knots faster than the current. In the absence of some very sophisticated technology (which is not suggested to have been present in this case), errors in setting the speed of the boat are inevitable.
[8] I cannot conclude, beyond a reasonable doubt, that Mr. Rupp’s evidence is false or inaccurate. Accordingly, he can be convicted if, and only if, the facts as he recounted them support a conviction.
Analysis
[9] Mr. Rupp is charged under section 78 of the Fisheries Act RSC 1985, c F-14, which renders it an offence to fail to comply with any provision of any of the regulations promulgated under the statute. The applicable regulation is section 49 of the British Columbia Sport Fishing Regulations, 1996 SOR 96-137 (“the Regulations”), which provides (underlining added):
No person shall fish for salmon by a method or with a type of gear or bait set out in column I ….
A barbed hook is one of the items of gear set out in column I.
[10] Mr. Rupp says that he was not fishing for salmon because his intention and objective was to catch a rockfish, not a salmon.
[11] Ms. Simpson replies that Mr. Rupp’s subjective intention or objective is irrelevant. She relies upon the judgment of Justice Dickson in R vs Sault Ste. Marie 1978 CanLII 11 (SCC), [1978] 2 SCR 1299. In that case, Justice Dickson said that there are three categories of criminal offences (underlining added)
1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.
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. ….
3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.
Justice Dickson then said (underlining added):
Offences which are criminal in the true sense fall in the first category. Public welfare offences would prima facie be in the second category. They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if such words as "wilfully," "with intent," "knowingly," or "intentionally" are contained in the statutory provision creating the offence. On the other hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act. The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations in determining whether the offence falls into the third category.
[12] Ms. Simpson says that offences under the Fisheries Act are “public welfare offences”, and so fall into Justice Dickson`s second category. Chief Justice Dickson described “public welfare offences” as those “… which are not criminal in any real sense, but are prohibited in the public interest …”, and defined them in the following terms:
Although enforced as penal laws through the utilization of the machinery of the criminal law, [public welfare] offences are in substance of a civil nature and might well be regarded as a branch of administrative law to which traditional principles of criminal law have but limited application. They relate to such everyday matters as traffic infractions, sales of impure food, violations of liquor laws, and the like ….
[13] I agree with Ms. Simpson’s assertion that the offence with which Mr. Rupp is charged is a public welfare offence. As a consequence, it is, prima facie, a strict liability offence. However, in this context, “prima facie” means only “presumptively”. The presumption may be rebutted by circumstances, by extrinsic evidence (such as Hansard) or by the language of the statute itself.
[14] In this case, the offence is the act of fishing for salmon. In ordinary English usage, to “fish for salmon” is to fish with the intention or objective of catching a salmon. It is true that the definition of the offence does not include any of the words "wilfully," "with intent," "knowingly," or "intentionally", but I do not think that Justice Dickson intended that catalogue to be exhaustive. The question is not whether one of those words appears in the definition of the offence, but rather whether the definition, construed according to ordinary English usage, expressly incorporates a state of mind as a necessary element of the offence. In my judgment, section 49 of the Regulations does.
[15] I am fortified in that conclusion by section 48 of the Regulations, which provides:
No person shall catch and retain a salmon of a species set out in column I of Schedule VI … the overall length of which is less than the minimum overall length set out in column II.
There is no mental element to an offence under section 48. The Crown need only prove that a person caught and retained an undersized fish. The fisher’s objective or intention is entirely irrelevant. If the legislator had intended the same consequence under section 49, it would simply have provided:
No person shall catch a salmon by a method or with a type of gear or bait set out in column I ….
[16] Mr. Rupp says that it was his intention to release any salmon which he caught with a barbed hook. In my view, that is no excuse for his conduct. If it were the legislator’s intention that catch-and-release be permissible under the Regulations, section 49 would simply provide:
No one shall retain a salmon caught by a method or with a type of gear or bait set out in column I ….
[17] Having concluded that proof of a state of mind is a necessary element of an offence under section 49 of the Regulations, the next question is the definition of the necessary state of mind. In so doing, I should have regard to Justice Dickson’s reference to “… the virtual impossibility in most regulatory cases of proving wrongful intention”.
[18] There has been some evolution of the concept of mens rea in the recent jurisprudence. That evolution was described by Justice Allen in R vs Eby 2007 ABPC 81; 2007 AJ No. 306; [2007] 9 WWR 747 @ paragraphs 89 - 90. Without attempting here any exhaustive discussion of the various mental states which may support a conviction, depending on the character of the offence charged, it is clear that a subjective intention to bring about the proscribed consequence (in this case, catching a salmon) is not a necessary element of every offence. It may be that a conviction under section 49 of the Regulations could be supported by evidence of one of the less culpable states of mind discussed in Eby. It is unnecessary for me to decide that issue because:
a. Mr. Rupp was reckless in relation to the risk that he would catch a salmon;
b. as Justice Dickson noted in Sault Ste. Marie, recklessness is a sufficiently culpable state of mind to support a conviction in relation to many offences which are “… criminal in the true sense …”;
c. if, as was held in R vs Creighton 1993 CanLII 61 (SCC), [1993] 3 SCR 3, recklessness is a sufficiently culpable state of mind to justify a conviction for manslaughter, it must surely be sufficient to support a conviction for fishing salmon with a barbed hook.
[19] Recklessness was defined by Justice McIntyre in R vs Sansregret 1985 CanLII 79 (SCC), [1985] 1 SCR 570; 17 DLR (4th) 577; 18 CCC (3d) 223 as follows:
Negligence, the failure to take reasonable care, is a creature of the civil law and is not generally a concept having a place in determining criminal liability. Nevertheless, it is frequently confused with recklessness in the criminal sense and care should be taken to separate the two concepts. Negligence is tested by the objective standard of the reasonable man. A departure from his accustomed sober behaviour by an act or omission which reveals less than reasonable care will involve liability at civil law but forms no basis for the imposition of criminal penalties. In accordance with well-established principles for the determination of criminal liability, recklessness, to form a part of the criminal mens rea, must have an element of the subjective. It is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance. It is in this sense that the term 'recklessness' is used in the criminal law and it is clearly distinct from the concept of civil negligence.
It should be noted that neither objective mens rea nor recklessness is a purely objective concept. In either case, the question is not what a reasonable person would have known and foreseen, but rather what the accused, as an individual, knew and ought to have foreseen: R vs Creighton @ paragraphs 39 - 44. In R vs Buzzanga and Durocher (1979) 1979 CanLII 1927 (ON CA), 101 DLR (3d) 488; 25 OR (2d) 705, Justice Martin described recklessness as:
… the subjective state of mind of a person who foresees that his conduct may cause the prohibited result, but, nevertheless, takes a deliberate and unjustifiable risk of bringing it about …
[20] Having in mind that the offence with which Mr. Rupp is charged is a public welfare offence, and the virtual impossibility of proving subjective mens rea in relation to such an offence, I do not think that the Crown carries the onus of proving that, at the time in question, Mr. Rupp intended to catch a salmon. I think it sufficient for the Crown to prove, beyond a reasonable doubt, that Mr. Rupp was aware that catching a salmon was a probable result of his conduct, and that he deliberately took the risk of catching a salmon with a barbed hook.
[21] In this case, Mr. Rupp was, subjectively, well aware that he was likely to catch a salmon by fishing as and where he did. That is sufficient to establish the mental element of the offence.
[22] It is necessary to address three points raised by Mr. Irving in his submissions on behalf of Mr. Rupp:
a. Mr. Irving refers to Mr. Rupp’s evidence, to the effect that he was much more likely to catch a rockfish than a salmon in the circumstances pertaining, and so suggests that Mr. Rupp was not reckless as to the risk of catching a salmon. Mr. Rupp’s evidence on the point is not supported by Mr. Tutty. Fairly summarized, Mr. Tutty’s evidence was that the chances of catching salmon and rockfish were roughly equal in the circumstances in question. I accept Mr. Tutty’s evidence. Even if I did not, I do not think it is a question of probabilities. A real likelihood of the prohibited result is sufficient to establish recklessness.
b. Mr. Irving points out that there is always some risk of catching a salmon in British Columbia tidal waters. The Regulations do not forbid all fishing with barbed hooks, but only fishing for salmon with barbed hooks. So, it cannot be that a risk of catching a salmon with a barbed hook is sufficient to establish recklessness. If that were so, it would be reckless to fish anywhere in British Columbia coastal waters with a barbed hook, and the permission to fish with such hooks for other species would be meaningless. The answer, in this case, is that Mr. Rupp knew that Horswell Channel was an excellent place in which to fish for salmon and that he was likely to catch a salmon by fishing as and where he did. The same result would not necessarily follow in relation to another fisher, less knowledgeable and skilled than Mr. Rupp, or in other waters, where salmon are less likely to be caught or with which Mr. Rupp was less familiar. It is the high probability of catching a salmon in Horswell Channel, coupled with Mr. Rupp’s intimate familiarity with those waters, which supports the finding of recklessness in this case.
c. Mr. Irving raises a defence of due diligence under section 78.6 of the Fisheries Act. The short answer is that a person who acts recklessly does not exercise due diligence.
[23] I conclude that Mr. Rupp was fishing for salmon with a barbed hook, and convict him of that offence.
October 30, 2015
________________________
T. Gouge, PCJ