Gavin v. R

In Fish Cases, Miscellaneous, Offences on (Updated )

This case involved a charge of fishing for lobster in a closed area. The accused’s fishing vessel was observed by a surveillance aircraft using (1) a state of the art camera, (2) a very high-powered telescope, (3) a software program that enhanced the live video, (4) radar assisted/integrated info software, (5) forward looking infrared radar, and (6) a 6,000,000 candlepower flash. The videos of this evidence were projected onto video displays, in ways that were not explained by the fisheries officer and other witnesses who gave evidence. According to the audio, the fisheries officer in the plane when viewing the video stated, “these are lobster traps”. From the trial judges view point, the high-tech video taken from miles away at the darkest part of the night was a blurry mess.
The fisheries office who introduced the high-tech evidence was not qualified as an expert witness and no other person was qualified as an expert.
At trial, the trial court convicted the accused based upon the high-tech evidence and imposed a sanction that prevented him from fishing the first 96 hours of he next lobster season in Southern Prince Edward Island. In the fishing area in Northern Prince Edward Island, a 96 hour no fishing sanction at the beginning of the season was not a significant penalty because the waters are cold at the beginning of the season and the fishing does not get good until later in the season. However, in the fishing area in southern Prince Edward Island, where the accused was licensed to fish, the situation was the opposite. The fishing was very good at the beginning of the season and poor later in the season.
Upon hearing a summary conviction appeal. The Court set aside the conviction. After a discussion of the rules regarding expert evidence and when such evidence it necessary, the appeal court ruled that the trial court should not have admitted the high-tech evidence without a qualified expert.
Although not necessary for its decision, the Court suggested that the sentence did not satisfy the requirements of section 15 of the Charter because the punishment differed greatly depending upon which region of Prince Edward Island the fish harvester came from.