In 1994 there was a blanket ban on herring fishing for the entire west coast. This ban was modified on rare occasions to allow fishing. During a 23 minute opening in an area near Comox the accused was charged with fishing outside the open area. The order opening the area for fishing described the boundaries of the area by reference to lines on a chart which were attached as a schedule. The northern boundary of the open area was delineated by way of a line drawn between two floating buoys. The announcement of the opening which was broadcast over the radio described the northern boundary as a line between the two buoys. Since the buoys were hanging from chains and moved with the tide, a central issue of the case was whether the area boundary was based upon a visual line between the buoys as they were positioned by the tide at the beginning of the opening, or a non visual line based upon the position of the buoys on the chart which formed part of the order. This position could be expressed in terms of longitude and latitude and be ascertained by Loran or other electronic equipment. The Court of Appeal held that the non visual line delineated the boundary and, since the crown did not affix the position of the accused based upon the non visual line, it failed to prove an essential element of the offence. Accordingly an acquittal was entered.
Counsel for the Appellant: Christopher Harvey
Counsel for the Crown: K.J. Yule