R v. McKinnell Fishing Ltd.

In Fish Cases, Miscellaneous, Offences on (Updated )

This case was summarized by the Court of Appeal as follows:

"The appellant crabbing company was found guilty of “fishing for” crabs in closed waters, contrary to the Fisheries Act, R.S.C. 1985, c. F 14. It argues that the phrase “fishing for” in s. 2 of the Fisheries Act does not include the act of raising crab traps from the ocean floor and into the vessel, and thus the act of fishing ended the moment the traps were lifted. HELD: appeal dismissed. The summary conviction appeal judge applied the correct definition of “fishing” set out in Gerring v. The Queen. The act of raising the traps into the vessel is part of the continuous act of “fishing for” as set out in the Fisheries Act."

Editor’s note: This case was a valiant attempt to restrict the very broad definition of “fishing” contained in Gerring v.The Queen. As a result, crab harvesters who place their traps close to a fishing area boundary, can be found guilty of fishing in a closed area if the tide or wind pushes their vessel over the boundary while they are in the process of lifting the traps off of the bottom. This case could also be used to charge a fish harvester for travelling through a closed area with fishing gear on deck while travelling to an open area to fish.
At paragraph three, the Court of Appeal refers to the offence as being an absolute liability offence. Although the case did not turn on this point, this is an obvious error. This was a strict liability offence (see R. v. Saulte Ste. Marie [1978] 2 S.C.R. 1299 (SCC)).