This case was heard in the Provincial Court of New Brunswick.
MacDonald was charged with possession of lobster in a closed Lobster Fishing Area (“LFA”), contrary to s. 57(1)(b) of the Atlantic Fishery Regulations under the federal Fisheries Act. This is an offence under s. 78 of the Fisheries Act.
S. 57(1) of the Atlantic Fishery Regulations prohibits the possession of lobster in a LFA during the closed time. S. 78 of the Fisheries Act states the penalties for contraventions, including fines and imprisonment for first and subsequent offences. Additionally, S. 78.6 of the Fisheries Act provides a due diligence defence, protecting individuals from conviction if they took reasonable steps to prevent the offence, or reasonably believed their conduct was innocent.
The primary issue in this case was whether the Crown had proven beyond a reasonable doubt that MacDonald was in possession of lobster in a LFA during a closed time. A secondary issue was whether, if the vessel was in a closed LFA, this was the result of an act to which due diligence would be a defence.
Fisheries Officers had conducted aerial surveillance over the Bay of Fundy, equipped with an inertial navigation system operated by a radar operator. The Fisheries Officer determined that the vessel was inside a closed LFA, which was confirmed by the radar operator. Visual observations showed activities related to lobster fishing, including crew members handling lobster storage crates
MacDonald argued that the vessel had completed its fishing for the day and was heading home when the freshwater pumps for the lobster tanks broke down. To prevent the lobster from suffocating, the crew hastily moved the lobster from the hold tanks to crates on deck. “This emergent problem was unforeseen and required immediate attention.” The defendant testified that he made periodic checks on the vessel’s position and had no reason to believe they were not in their designated zone. Although some uncertainty about the exact location of the vessel was observed, the court was persuaded by the Crown’s evidence. The verifications undertaken satisfied the court that the systems used were accurate in establishing the vessel was in LFA 36.
Regarding the due diligence defence, the court considered whether the defendant’s response to the emergent problem on his vessel met the standard of reasonable care. The court used a contextual approach, and considered factors such as the regulated activity, the risks involved, the likelihood and gravity of harm, potential benefits, and the degree of knowledge or skill expected of the defendant. The Court also noted that the legislation prohibiting possession of lobster in a closed LFA is to promote conservation, protection and regulation of lobster stock and fishing.
The court concluded that the defendant reasonably and honestly believed his vessel was on a course outside the closed LFA. The distraction and navigation problems were unforeseen, and there was no real risk or harm to legislative objectives. The court was satisfied that the defendant exercised due diligence given the unique circumstances.
The Defendant was found not guilty.
View the Decision on CanLII: 2019 NBPC 7 (CanLII) | R. v. Justin MacDonald | CanLII
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