Shawn Ralph v. Her Majesty the Queen in Right of Canada

In Due Diligence, Fish Cases, Offences on (Updated )

This case involved a fish harvester who was convicted at trial of conducting fishing activity while not being monitored by a Fisheries and Oceans approved Vessel Monitoring System ("VMS"). Upon summary conviction appeal, the appeal court held that the trial judge imposed too high a burden upon the fish harvester. The appeal court said as follows:

A VMS system was properly installed by a certified installer. The system was activated and was fully operational in that it was sending e-mails to DFO which were actually being collected and kept in a file. All positions of the boat were being recorded. The sheet was faxed to DFO on two occasions and the original sent by mail to DFO. Captain Ralph could objectively assume that a system properly installed, which he was told was activated and fully operational, was in fact the case because it was coming from people skilled in a technical field. The form required to activate the system was sent by the installers to DFO and he mailed the sheet himself by regular mail. Captain Ralph had a continuous monitor on the boat i.e. the light on the system showing it to be activated. He was told if the light went out to stop fishing and return to port and this was also a condition of the license. Captain Ralph also received bills from Stratos showing that his system was being monitored by Stratos. Captain Ralph, when he went into the M.S. area, or midshore, which was the only place he needed a monitor, called DFO and told them he was going there. DFO did not say, “Well, we have no record of you being where you say you are.” All of these actions from the installation to monitoring the light on the system and calling DFO, and receiving bills, is evidence and when considered collectively is the actions of a reasonable person, being Captain Ralph, whose livelihood is to catch fish, watch weather, and maintain the safety of crew and employees. The Crown argues that he should have called to ask if he was being monitored. A reasonably objective person would assume that had there been a problem and when he did call into DFO he would have been informed he was not being monitored. But the flaw in the system was on DFO’s end in not properly looking into information coming into the folder. [para. 29]