R v. Kukuljan and Emil K. Fishing Corp.

In By Licence Holders and Employers, Fish Cases, Offences on (Updated )

This case involved charges against the the owner of a salmon fishing vessel for unlawfully retaining incidental catch of sockeye and coho salmon. Since the owner of the vessel was not aboard at the time of the offence, the owner was charged under both s. 78.3 of the Act with respect to liability of employers and s. 78.4 with respect to the liability of licence holders. In applying these sections, the trial court followed F.A.S. Seafood Producers Ltd. [2000] B.C.J. 1625 for the proposition that the requirement that the licence holder or employer establish that the offence was committed without his or her knowledge or consent imports a due diligence or reasonable care defence. In applying this test, the trial court found the owner/licence holder had exercised due diligence by ensuring that: (1) His boat had perfect gear; (2) the crew were instructed to take care not to catch Sockeye or Coho; The crew were instructed to watch what they were doing and keep the regulations; (3) the skipper had been told to fish and do everything the way it was supposed to be. The court also relied upon R. v. Harris [1997] N.S.J. 484 (N.S.C.A.).

Upon summary conviction appeal (link), the acquittal of the trial court was upheld on the following basis:

The Gulf of Georgia case [(1979) 10 B.C.L.R. 134] points out that what may be appropriate safeguards in “bycatch” violations in fisheries cases may be different or inadequate for cases involving oil spills and other significant toxic environmental harm. That is, the steps taken to establish due diligence will depend on all the circumstances including the magnitude of the damage in the likelihood of a mistake (or breach). In my view, while conservation of fish stocks is very important, the kind of “mistake” or infraction at issue in this case simply cannot be compared to the effects of toxic spills into waters where both fish and human health are significantly jeopardized. [para 40]

Upon further appeal to the British Columbia Court of Appeal, the court focused on the following issues:

(1) To establish a due diligence defence, does the Defendant have to establish the mechanism of the failure; and

(2) Is the corporate vessel owner vicariously liable for the negligence of its vessel operator?

With respect to the first issue, after reviewing the applicable authorities the court concluded that the defence does not have to demonstrate the precise mechanism by which a prohibited act occurred. It only has to demonstrate that it exercised due diligence "to avoid the specific type of occurrence giving rise to the charges against it" (para. 19). In this particular case, the accused was not required to show the mechanism by which the retention of prohibited species occurred. It did, however, need to show that it had in all respects exercised due diligence to prevent the catching and retaining of prohibited species. The court also distinguished the Gulf of Georgia case cited above as a case where the consequences of employee negligence were much more serious.

With respect to the vicarious negligence (the second issue), the court relied upon R. v. Saulte Ste. Marie (City), 1978 2 SCR 1299 to reject the argument that a company is vicariously liable for the acts of its employees unless it can show that the employees exercised due diligence. It did, however, state that if it had been established that sufficient authority had been delegated to the captain so as to constitute him as a guiding or directing mind of the corporation, his specific actions would also have to be scrutinized by the court.