IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Hong Chi Yuan and Qing Zhang face six separate charges under the Fisheries Act.

[2]         Each of the defendants chose to represent themselves in these proceedings. A Mandarin interpreter assisted both of them.

[3]         I heard from three Fisheries Officers: Trevor Castagner, Gareth Hurd and Launi Davis.

[4]         Mr. Yuan testified. Mr. Zhang chose not to, as is his right. Mr. Yuan’s wife Yiping (Lisa) Chen also testified, although her testimony was an argument rather than actual evidence. Ms. Chen was not involved in the actual fishing.

[5]         The basic facts are not in dispute.

[6]         On April 28, 2023, in Burrard Inlet near Belcarra, B.C., Mr. Yuan and Mr. Zhang were crab fishing on a small inflatable dinghy. They were stopped by the Fisheries Officers, who saw that Mr. Yuan and Mr. Zhang had crab traps in their boat.

[7]         Both Mr. Yuan and Mr. Zhang have fishing licences permitting them to catch the crabs.

[8]         The Fisheries Officers inspected the boat while it was in the water and after it docked at Belcarra.

[9]         There is no dispute that the following were found in the possession of Mr. Yuan and Mr. Zhang:

[10]      Of the 27 crabs, the Fisheries Officers found that 26 were undersized and they were released back into the water.

[11]      The charges against Mr. Yuan and Mr. Zhang are under the Fisheries Act. This is legislation aimed at managing and protecting Canada’s fisheries. These are not Criminal Code offences. They are what I describe as regulatory offences.

[12]      There are two elements to an offence. In legal terms, they are called the “actus reus” and the “mens rea”.

[13]      The “actus reus” refers to the physical act itself. For instance, the physical act of an assault would be the hitting of someone.

[14]      The “mens rea” refers to the intention to do the act. For instance, if I intended to hit someone, then I had the “mens rea” or the intention to assault someone.

[15]      Offences under the Fisheries Act are described as “strict liability” offences: see R. v. MacMillan Bloedel Ltd., 2002 BCCA 510.

[16]      For strict liability offences, the Crown needs to prove beyond a reasonable doubt that a person committed the actus reus or the wrongful act. There is no requirement for the Crown to prove the intention to do the wrongful act.

[17]      Once the Crown has proven that the wrongful act occurred, the person who did the wrongful act can still defend the charge, by proving on the balance of probabilities that he or she acted with due diligence or took reasonable care in an attempt not to do the wrongful act.

[18]      There are other defences to a strict liability offence, such as necessity or impossibility: see R. v. Klem, 2014 BCCA 272 at para. 31. However, neither Mr. Yuan nor Mr. Zhang presented any evidence or argument in support of such.

[19]      I turn now to discuss each of the charges.

[20]      Regulation 37(1)(b) of the British Columbia Sport Fishing Regulation, 1996 (SOR/96-137) states:

[21]      Mr. Yuan and Mr. Zhang were found in possession of 26 Dungeness crabs that measured less than 165 mm.

[22]      Mr. Yuan said when they were stopped by the Fisheries Officers, he was measuring the crabs using a yellow plastic measuring device.

[23]      This is contradicted by the evidence of Fisheries Officer Davis, who testified to seeing the yellow measuring device hanging by the side of the boat, when the boat was first spotted.

[24]      More importantly, the crabs were being held in two coolers at the time the Fisheries Officers stopped the boat.

[25]      Section 33(1) of the Fishery (General) Regulations, SOR/ 93-53 states that when a person catches a fish where the possession or retention of the fish is prohibited, the person who caught the fish must “forthwith return it” to the place it came from.

[26]      Under the Fisheries Act, the term “fish” includes shellfish and crustaceans. This includes crabs.

[27]      The term “forthwith return” means “as soon as practicable” or “as soon as possible in the circumstances”: R. v. Gallant, 2005 PESCTD 6 at para. 8, which was affirmed on appeal in a decision reported at 2006 PESCAD 4. This decision was approved in British Columbia in R. v. Tang, 2021 BCSC 642.

[28]      In the decision R. v. Tang, the accused, Mr. Tang, was fishing for rockfish. Under the Fisheries Act, Mr. Tang was limited to catching one rockfish, but he was found in possession of more than one. Mr. Tang was charged with catching and retaining more than his daily quota of one rockfish. In his defence, Mr. Tang argued he did not retain the fish, and he had the option of returning the excess fish to the water and keeping only one of them.

[29]      The BC Supreme Court disagreed and said in para. 9 that Mr. Tang retained the fish when:

[30]      Based on this decision, Mr. Yuan and Mr. Zhang were not entitled to catch and retain 27 crabs and decide later which ones they would release. As such, I find Mr. Yuan and Mr. Zhang guilty of unlawfully catching and retaining fish contrary to s. 37(1)(b) of the British Columbia Sport Fishing Regulations, which is an offence under s. 78(a) of the Fisheries Act.

[31]      Section 36(b) of the British Columbia Sport Fishing Regulation states:

[32]      Mr. Yuan and Mr. Zhang had in their possession 27 Dungeness crabs. They offered no evidence of due diligence or reasonable care not to catch more than four crabs each. Accordingly, I find them guilty of catching and retaining more than four crabs contrary to s. 36(b) of the British Columbia Sport Fishing Regulations, which is an offence under s. 78(a) of the Fisheries Act.

[33]      I heard evidence that Mr. Yuan and Mr. Zhang were using plastic detergent bottles as boat floats. I was told that at one time this was permitted, but the legislation changed years ago. I understand that Mr. Yuan and Mr. Zhang were not aware of this change.

[34]      Mr. Yuan and Mr. Zhang are charged with not using the type of floats as prescribed by their fishing licence. Fisheries Act s. 43.4(1) states that a person must comply with any terms and conditions set out in their fishing licence.

[35]      I was not given any evidence of the terms set out in the fishing licences issued to Mr. Yuan and Mr. Zhang. Absent such evidence, I am not persuaded beyond a reasonable doubt that Mr. Yuan and Mr. Zhang contravened s. 43.4(1) of the Fisheries Act. I acquit them of this charge.

[36]      Section 39(1) of the British Columbia Sport Fishing Regulation states:

[37]      Mr. Yuan testified that he and Mr. Zhang had fishing licences, and Mr. Zhang had his wife’s fishing licence. Mr. Yuan argued that this meant they had three fishing licences in their possession and this allowed them to possess six crab traps.

[38]      Section 39(1) clearly states that the limit of two crab traps relates to each person, not to each licence. Therefore, I reject Mr. Yuan’s defence.

[39]      I find Mr. Yuan and Mr. Zhang guilty of possessing more than two crab traps contrary to s. 39(1) of the British Columbia Sport Fishing Regulations, which is an offence under s. 78(a) of the Fisheries Act.

[40]      Section 39(2) of the British Columbia Sport Fishing Regulation states:

[41]      The evidence is clear that the plastic detergent bottles being used as floats did not have either Mr. Yuan or Mr. Zhang’s name on them. Accordingly, I find Mr. Yuan and Mr. Zhang guilty of unlawfully fishing with a float that did not bear the operator’s name contrary to s. 39(2) of the British Columbia Sport Fishing Regulations, which is an offence under s. 78(a) of the Fisheries Act.

[42]      Section 41 of the British Columbia Sport Fishing Regulation requires that a crab trap have an opening secured by a specific type of untreated cotton twine. If a fisher abandoned a crab trap, the twine would eventually rot and allow captured crabs to escape.

[43]      Mr. Yuan conceded that he made four of the six crab traps and those traps did not comply with s. 41.

[44]      Accordingly, I find Mr. Yuan and Mr. Zhang guilty of unlawfully fishing with a crab trap that did not comply with the requirements set out in s. 41 of the British Columbia Sport Fishing Regulations, which is an offence under s. 78(a) of the Fisheries Act.

[45]      Mr. Yuan and Mr. Zhang did not present any evidence to show that they acted with due diligence or took reasonable care not to do any of the wrongful acts.

[46]      Ignorance of the law is no excuse, unless an official induced the error: R. v. M.D.B., 2006 BCSC 1251.

[47]      In this case, there was no evidence that any official misled Mr. Yuan or Mr. Zhang before they went crab fishing.

[48]      As I said earlier, there are other defences to a strict liability offence, such as necessity or impossibility, but there was no evidence presented or argument made in support of such.

[49]      Ms. Chen submitted that the Fisheries Officers returned 26 undersized crabs to the water and this excused the offence of catching undersized crabs. This may be a relevant factor in sentencing but the late release of the crabs does not excuse the offence.

[50]      In relation to five of the six Fisheries Act charges, I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Yuan and Mr. Zhang committed the wrongful acts. As such, I convict Mr. Yuan and Mr. Zhang of counts 1, 2, 4, 5 and 6 of Information 108767-1.