R v. v. Crane

In Fish Cases, Miscellaneous, Offences on (Updated )

This case involved four charges including a charge of possession of undersized lobster. The issue in this case was whether the Department of Fisheries (DFO) breached the accused’s charter rights by failing to provide the accused with an adequate photographic record of the measuring of the undersized lobster that were returned to the sea after being measured. In concluding that the photographic record was not adequate the court found that:

"In a case involving undersize lobsters — where the live evidence is returned to the sea, where there can be less than a millimeter of difference separating a guilty verdict from a not guilty verdict, where the Officers have cameras readily available, where the Officers have the calibrated lobster gauge readily available, where due diligence is a good defence — preserving an adequate photographic record illustrating the carapace size of the lobsters would be a reasonable step. From the various video and photographic images, there was only one lobster photographed in a way to display both ends of the gauge over the carapace."

Based upon these findings of fact, the court applied R. v. La (appeal by Vue), 1997 CanLII 309 (SCC) to find a charter breach as a result of unacceptable negligence by the Crown in preserving evidence. As a result it upheld a stay on the charge of possession of undersize lobsters. In doing so, the court limited the application of its decision as follows:

Upon further appeal, the Appeal Court set aside the stay. In doing so, it stated:

"[T]he rules regarding disclosure do not require the creation or gathering of particular forms of evidence. In this case, there was no obligation on the Crown to take photos or video. It was open to DFO officers, for example, to measure the lobsters and simply record the measurements in their notes. Good investigative practice may well call for the creation of evidence (e.g. photos) that verifies what is recorded in the officers’ notes, but the law does not require it."

With respect to the failure to preserve the lobster as evidence the court stated that the "DFO officers released the lobsters as part of the living resource. There is no suggestion that they did so for any other purpose."

With respect to the stay, the court noted that a key issue is whether the accused can "establish actual prejudice to his or her right to make full answer and defence". The court stated that the preferred course is for the trial court to proceed to trial and then assess the issue of the violation in the context of the evidence as it unfolds at trial. Accordingly, the trial judge erred by making a premature decision on the stay application.