R v. Henneberry

In Fish Cases, Miscellaneous, Offences on (Updated )

This case involved a charge of failing to hail the accurate round weight of ground fish as required by the condition of a fishing licence. The Crown gave evidence that the round weight of the catch of halibut that was not hailed was 28 per cent of what was hailed or 22 per cent of the landed weight (para. 42.). The evidence of the captain at trial was that it was not possible to actually weigh the undressed fish at sea. However the Crown gave evidence that it was aware of one vessel that did so. It also gave evidence that some vessels did volumetric measurements that were reasonable accurate this involves loading tubs or tanks to a certain point where weights are known.

At trial the defence argued that the licence condition requiring the vessel operator to hail the accurate round weight was unconstitutionally vague because it gave no direction on what degree of variance from the true weigh is required.

In rejecting the defences the court summarized its reasons as follows:

137) I find that the word “accurate” in the context of a condition of a fishing license authorized by s. 22(1) of the Fishery (General) Regulations means “precise, careful”. I further find that these words are not synonymous but rather express two aspects to the meaning of the word accurate; first, precision in completing the task; and second, the exercise of care in completing the task. When considered together in relation to the condition 6.6.1(f) of the accused’s fishing license, I find that the condition requires that the vessel operator make as precise a report of the round weight of the fish onboard the vessel by individual species as can be accomplished with the exercising of care in completing the task. I find that this is consistent with the Court of Appeals use of the term reasonable accuracy.

138) The exercise of care involves consideration of factors including the method and equipment used in completing the task and the captain’s knowledge and experience.

139) In my view, this determination of the actus rea of the offence does not diminish the defence of due diligence or mistaken belief of fact set out in s. 78.6 of the Fisheries Act.

140) Based upon the Court’s finding of the meaning of the term “accurate hail” the Court is satisfied that condition 6.6.1(f) in the fishing license of the Ivy Rose delineates, with sufficient clarity, a zone of risk and gives vessel operators, with a like requirement to that of the Ivy Rose, notice of the conduct which will make them liable to being charged. I am not persuaded that the provision is constitutionally invalid due to vagueness. The Defence motion for a declaration of vagueness and for a finding of a breach of section 7 of the Charter for vagueness is denied.