This case involved a lobster fisherman who had his fishing vessel seized by the Department of Fisheries as a result of charges laid in an unrelated matter. Since his gear was in the water at the time of the seizure, he wrote to the Regional Director and sought assistance in removing his herring nets and lobster traps from the water. Based upon advice he received from the Regional Director, he used another persons boat to remove his nets, but did not remove his lobster traps. As a result of the later discovery of his traps in the water after the closure of the fishing season (empty of bait and lobster), he was charged with fishing during a closed time.
The main issue in the case was whether the accused was “fishing” as defined in section 2 of the Fisheries Act.
The court reviewed authorities such as R. v. Alward (1990) 79 Nfld. & P.E.I. Rep. 262 and Ship Frederick Geering JR. v. R. (1896 27 S.C.R. 271 as well as Regulation 57 of the Atlantic Fisheries Regulations to conclude that the accused was not “fishing”. In doing so, the court noted that “the Regulations contemplate indicia of feasance rather than nonfeasance” (para. 13). The court also noted that this was more a case of abandonment as proscribed by section 25 of the Fisheries Act.
In responding to a defence argument that the Regional Director was counselling the accused to do an illegal act when it suggested picking up the traps with another boat, the court also noted that the accused could have sought an amendment to his licence to allow another boat to assist in retrieving gear from the water.