Précis: The Provincial Court of Newfoundland and Labrador acquitted the accused when the Crown failed to prove beyond a reasonable doubt the alleged offence under the Marine Mammal Regulations.
Facts: On 5 August 2014 the accused was alleged to have unlawfully disturbed a marine mammal contrary to s. 7 of the Marine Mammal Regulations in waters off the coast of Newfoundland and Labrador. At the time of the offence the accused was the captain of the "Cetacean Quest", a tour boat. A second boat, a speed boat, was also interacting with the whale. Another boat, a zodiac owned by the DFO and carrying DFO and CBC employees (who were recording), was also in the vicinity and allegedly witnessed the tour boat disturb the whale. The Crown called six witnesses and the trial lasted for 15 days.
Decision: The evidence led in the case failed to prove the actus reus of the offence beyond a reasonable doubt.
Held: The judge was unable to determine how close the tour boat came to the whale from the CBC video, filmed from the DFO vessel. Expert evidence on the whale’s behaviour was incapable of proving beyond a reasonable doubt the accused’s guilt, and the judge rejected the argument that the whale was interfered with because the tour boat was in close proximity to it. The judge also held that the presence of the speed boat raised reasonable doubt as to whether the whale disturbance was caused by the tour boat or the speed boat. After a review of the case law, the judge held that the accused’s behaviour did not disturb or tended to disturb the whale to the level needed to be convicted of the offence.
Interestingly, the judge raised concern regarding the amount of court time used to complete this trial, bluntly stating that "The unnecessary use of court time causes systemic delays and prevents other accused persons from having their cases heard in a more timely fashion" (para. 33). In light of the decisions in R v. Jordan and R v. Cody, the judge was compelled to point out concerns about the manner in which this trial proceeded, questioning if Crown counsel should have proceeded with the trial after the judge refused to qualify its expert witness, and also pointing out that the Marine Mammal Regulations were being amended in June 2018 to provide clearer direction on what constitutes marine mammal disturbance- amendments released some 10 days before the conclusion of the trial.