R v. Mark

In Fish Cases, Forfeiture, Miscellaneous, Offences on (Updated )

This case involved a charge against a west coast trawl fisherman for fishing over a fishing area boundary line into a closed area that was delineated as being on the seaward side of a 40 fathom contour line. At trial, the court relied upon evidence from a navigator who used a global positioning device (G.P.S.) to go to the co-ordinates recorded by the fisherman and take depth soundings.Given the evidence of the Navigator that the depths at these co-ordinates placed the accused in a closed area, the court convicted.

Upon summary conviction appeal, the conviction was overturned and an acquittal entered on the grounds that the trial judge failed to take into consideration the fact that the expert witness was not aware that the co-ordinates supplied by the fisherman were created using Loran,C as opposed to G.P.S. Since the expert did not have the opportunity make adjustments for this difference (a distortion of up to 1.2 miles) his evidence could not be relied upon.

Although an acquittal was entered, the proceeds from the forfeiture of fish were not returned on the basis of s. 72(3) of the Fisheries Act, because the court was satisfied on a balance of probabilities that the accused was fishing out of season.

Upon further appeal by the Crown, the BCCA denied the Crown’s appeal, but allowed a separate appeal by the defence on the forfeiture issue and overturned the forfeiture order.