This case was heard in the Prince Edward Island Court of Appeal.
Mr. Gavin was charged with unlawfully fishing for lobster in a Lobster Fishing Area (LFA) during a closed time, contrary to s. 57(1)(a) of the Atlantic Fishery Regulations, and contrary to s. 78(a) of the Fisheries Act.
He was convicted and subsequently suspended from fishing for the first 96-hour period of the 2016 season in that LFA. Mr. Gavin appealed both the conviction and sentence to the higher court. The Summary Conviction Appeal Court (SCA Court) allowed the appeal and dismissed the charge against him. The Crown then asked for permission to appeal the SCA Court decision, and to reinstate the conviction and sentence originally given by the trial judge. The court allowed the appeal and began assessing the grounds presented by the Crown.
The first ground of appeal was that the SCA Court did not apply the correct standard of review. The role of the appeal court was to determine whether the trial court's findings were reasonable and supported by the evidence. The appeal court was not allowed to replace the trial judge's view of the evidence with their own and yet conducted an unrestricted assessment of the evidence presented at trial, essentially retrying the case. This is not permitted.
The Crown also argued that the appeal court judge made an error when deciding that expert evidence was necessary to identify the lobster traps and to draw conclusions about the activities on the fishing vessel. The appeal court had concluded the witnesses had to be qualified as experts before they could testify as to what they observed using radar and FLIR (Forward Looking Infrared Radar). This was determined to be an error of law.
Finally, the Crown claimed the appeal court made a legal error by concluding that the sentence imposed by the trial judge violated Mr. Gavin's equality rights under s. 15 of the Charter. The Crown said this issue shouldn't have been discussed, because Mr. Gavin was acquitted which made the appeal about the sentence unnecessary.
The court decided to approve the request to appeal, uphold the appeal, and reinstate the trial court’s conviction. The court also decided that the matter of sentencing should be sent back to the initial court of appeal for decision.
View the Decision on CanLII: 2018 PECA 6 (CanLII) | R. v Gavin | CanLII
Disclaimer:
Case briefs in our Resource Library are drafted by law students who work or volunteer with East Coast Environmental Law, and East Coast Environmental Law does not guarantee their fullness or accuracy. Library users should not rely on case briefs as comprehensive accounts of the issues, facts, reasoning, or outcomes at stake in any given case.
If you require more detailed information about a court decision or legal issue, please consider using our Environmental Law Inquiry Service to request information from our staff.