This was a summary conviction appeal of a case that involved a charge against the owner of a ground fish vessel for continuing to fish for a species (cod, plaice and halibut) after his allowable by-catch had been exceeded.
Upon appeal, the following issues were raised:
Correct interpretation the licence condition regarding when one must stop fishing because of incidental catch;
Due diligence; and
Proper delegation of authority to attach terms and conditions to fishing licences.
With respect to the first issue, the court rejected the accused’s interpretation, which would have allowed him to keep fishing “to see whether the by-catch levels could be offset by higher catches of the directed species”.
The court also rejected both a due diligence and a mistake of fact defence. In rejecting the mistake of fact defence, it applied R. v. Tavares (1996) 144 Nfld. & P.I.I.R. 154 (Nfld. C.A.) for the proposition that for a strict liability offence a mistake of fact must reasonable based upon an objective standard, not the subjective standard of the accused.
With respect to delegation, the accused argued that the delegation of the power to impose terms and conditions on licences pursuant to s. 22(1) of the Fishery (General) Regulations was improper because such a power was a legislative act. After reviewing some conflicting authorities, the court adopted a functional and pragmatic approach to hold that such powers could be delegated.
Editor’s note: For an interesting discussion of the issues surrounding the delegation of licence conditions see the Sixth Report (Report No. 71) of the Standing Joint Committee for the Scrutiny of Regulations 30 May 2002. It appears that some of the arguments raised by the accused in this case may have come from this report.
See also the companion cases of R. v. Forsey 2003 NLSCTD 57 (digested herein) and R. v. Rideout 2003 NLSCTD 58 (digested herein).