R v. Duncan

In Fish Cases, Offences, Officially Induced Error on (Updated )

This case involved a commercial salmon seine fishery that for some time had been pooled in the sense that only some of the available fishing vessel are allowed to participate in the fishery. In the past, vessels that were assigned a catch in the pool, but did not have the required license to fish, purchased temporary assignments of licenses from other boats and fished the quota of the assigned licenses. During the 2012 fishing season the fishing vessel captained by the accused was authorized by the management committee of the pooled fishery to participate in the pooled fishery. At that time, a representative of the commercial fishers working group notified the accused that his fishing vessel was authorized to participate in the pooled fishery. Consequently, temporary assignments of license and quota were purchased. In addition the accused read an e-mail that was distributed by the Department of Fisheries and Oceans ("DFO") indicating that a designation by the Harvest Committee was a precondition to participating in the pooled fishery.

The accused then participated in the fishery and caught fish, although a fishing license had never been issued to his vessel by DFO. He was subsequently charged with fishing without a licence and attempted to defend himself based upon the defence of officially induced error.

This defence was rejected for the following reasons:

1) The accused did not seek advice regarding the legal question of whether the fishing vessel was properly licensed to participate in the fishery;

2) He could not rely upon the statement of the representative of the commercial fishing group because he was not a government official;

3) No evidence was presented regarding past acquiescence by DFO in the administration of the pooled fishery;

4) The fisheries notice relied upon by the accused were not in any way directed to the question of whether to the boats participating in the pooled fishery were required to have valid commercial fishing licenses.