This case involved a charge against a crab fish harvester who was caught hauling his crab traps more than once per day contrary to the conditions of his crab licence. During final argument after electing to call no evidence, defence counsel objected to the charge on the grounds that it did not disclose an offence known to law. In particular, it failed to refer to s. 22(7) of the Fishery General Regulations [failure to comply with condition of licence] and erroneously included a reference to s. 22(1)(h) [authority of Minister to specify licence conditions]. The trial judge then refused a Crown application to amend the Information and acquitted the accused.
Upon summary conviction appeal, the court allowed the appeal and remitted the matter back to trial. In doing so, the court held as follows:
1) Since Crown did not object and the court granted leave, the trial court did not err in allowing an objection to the form of charge after the Crown had closed its case;
2) Although the defect should have been characterized as a defect in substance rather than form, the trial court did not err in deciding the wording of the charge was defective;
3)Since the delay caused by re-opening and adjourning the case would have caused prejudice, the trial court did not err in refusing an amendment; and
4) Since the charge was sufficient to inform the accused of the charge against him (fishing contrary to the terms of his licence) and the unlawful act (hauling his trap more than once per day) the charge was not nullity or fatally flawed (see Criminal Code s. 581).