R. v. Dawe, 2019 CanLii (N.L. Prov. Ct.)

In Miscellaneous on

This case involved a fishing vessel that was purse seining for capelin.  In this fishery, the most common method of estimating the weight of one’s catch is to use baffle boards.  On the day in question, the accused’s vessel was using this method. The seine net was off the starboard side of the vessel and the captain was using a port stabilizer to offset a starboard list. While pumping fish, the accused attempted to adjust the baffle boards in an attempt to move some of the catch to port to alleviate the starboard list. When it was apparent that this method was not working, he stopped pumping.  After assessing the situation, he decided to board up the port side and pump more fish into the port side to alleviate the list. This caused the vessel to exceed its daily catch limit of capelin. After reviewing the tests for a defence of necessity as set out in both Perka v. The Queen, 1984) 2 SCR 232 at 257-8 and R. v. Latimer, 2001 SCC 1 at 5-6, the court accepted the defence and acquitted the accused.  In doing so, it said as follows:

Applying the modified objective test to his position in that regard, I am required to conduct an objective evaluation which takes into account the situation and characteristics of Mr. Dawe in particular. In doing so, I am cognizant that this incident occurred on the open waters a significant distant from land. The accused had a legal licence to fish capelin. He did not have extensive experience in fishing this species. He found himself in a situation which was not foreseeable. He took steps which he believed were sufficient to address the issue of the destabilization of the boat. Despite his efforts, the listing continued to a degree that became perilous to the lives of the crew and the accused. At the moment that he reopened the pump to take more capelin on board, he did so for the sole purpose of correcting the list of the vessel.  Based on the evidence which I accept, there was an imminent peril and the Accused had a subjective belief that he had no reasonable legal alternative but to commit the prohibited act in order to prevent the boat from capsizing and to save the lives of himself and his crew. [33]

The court also indicated that the facts of the situation likely did not give rise to a due diligence defence.  https://canlii.ca/t/hxg6d