This case involved a cod fisherman who after his quota had been exhausted, used a fishing vessel licensed in his name to assist his brother in fishing his cod quota. This assistance included the following:
1) Transporting his brother across open waters to a location where the brother’s smaller vessel was tied up;
2) Removing cod from a cod bag towed behind his brother’s boat and loading them onto his larger boat;
3) Delivering the cod, without his brother on board, to a fish processor to be booked in the name of his brother.
Upon being charged under s. 13.1(1) of the Atlantic Fishery Regulations, the issue before the courts was whether or not the accused could take the benefit of an exemption which allowed fish to be transported by a vessel “where the vessel used in transporting the fresh fish is (a) the vessel that was engaged in the catching of that fish”.
At trial level, the Provincial Court judge applied the broad definition of fishing as set out in R. v. Skinner (1997), 147 Nfld. & P.E.I.R. 350 and The Ship “Frederick Gerring Jr.” v. Her Majesty the Queen (1897), 27 S.C.R. 271 to conclude that the assistance provided by the accused’s fishing vessel could be interpreted as being “engaged in the catching of fish”. Using what could be called a literal approach to interpreting the regulations, the trial judge gave the accused the benefit of the exemption and entered an acquittal.
Upon appeal to the Nfld. Supreme Court, the court accepted the findings of the trial judge to the effect that the accused’s vessel was engaged in catching the fish which it carried. After concluding that the accused was involved in illegal fishing because his own quota had been exhausted, the court found that this illegal conduct precluded him from taking advantage of the saving provision in the regulations.
Upon further appeal to the Newfoundland Court of Appeal, the court split with the majority restoring the acquittal of the trial judge and the minority agreeing with the summary conviction appeal judge.
The reasons for judgment of both the minority and majority decisions are quite lengthy and review at length the principals of statutory interpretation. For the most part, where they differ is as follows:
The Majority was of view that in applying the purposive approach to statutory interpretation, “judges are not ‘free to alter the words used if they dislike the result’, thereby contradicting the enacting body’s policy”(para. 93); and
The Majority was of view that since the fish were hauled from a trap with a boat licensed to the brother, there was nothing improper about the accused helping his brother with his vessel for such things as transporting the crew and catch through dangerous waters.
Editor’s note: This case in unusual in that the broad definition of “fishing” as set out in The Ship “Frederick Gerring Jr.” v. Her Majesty the Queen was relied upon by the accused to obtain an acquittal rather than by the Crown who usually benefit from the application of this case.