Court of Appeal

                           NOVA SCOTIA COURT OF APPEAL

Citation: R. v. Rideout, 2005 NSCA 122

Date: 20050930

Docket: CAC  241284

Registry: Halifax

Between:

Ricky Kenneth Rideout

Appellant

v.

                                             Her Majesty the Queen

                                                                                                           Respondent

Judge:                  The Honourable Justice Thomas Cromwell

Appeal Heard:      September 13, 2005

Subject:      Sentence appeals to the Court of Appeal from the Summary Conviction Appeal Court – Regulatory Offences

Summary:   The appellant was convicted in Provincial Court of fishing out of his licensed area.  There was no dispute that he had, in fact, been fishing outside that area, but the appellant argued at trial that he had been duly diligent in attempting to fish in the correct area and that his error had been officially induced.  The trial judge rejected these contentions, finding that there was no basis for concluding that the appellant had made reasonable efforts to be sure he was fishing in the right area.  As to sentence, the trial judge found that the case was governed by the discretionary rather than the mandatory forfeiture provisions in the Fisheries Act, R.S.C. 1985, c. F-14.  He imposed a fine of $4000 but refused to order any forfeiture, being of the view that the costs which the appellant had incurred as a result of his error provided adequate deterrence.  The Crown successfully appealed the sentence to the Summary Convcition Appeal Court (“SCAC”).  That Court held that the trial judge had erred in principle by failing to give adequate weight to the principles of general and specific deterrence and had imposed a sentence that was clearly unreasonable.  The appellant sought leave to appeal to the Court of Appeal.

Issues:        1.  Did the SCAC err in its application of the standard of review by substituting its discretion for that of the sentencing judge?

2. Did the SCAC misapprehend the trial judge’s reasons for sentence?

3.  Was the sentence imposed by the trial judge clearly unreasonable?

4. (Raised by the Crown)  Did the SCAC, as well as the trial judge, err in finding that the mandatory forfeiture provisions did not apply?

Result:        Appeal dismissed.  The SCAC correctly applied the appropriate standard of review.  Assuming, without deciding, that fitness of sentence is a question of law alone, the sentence imposed at trial was clearly unreasonable.  While the SCAC did misapprehend an aspect of the trial judge’s reasons for sentence, this did not undermine the correctness of the SCAC’s conclusion that the trial judge had failed to give adequate weight to the principles of general and specific deterrence.  It was not necessary to decide whether the mandatory or the discretionary forfeiture provisions applied.