Cite as: R. v. Ito, 1992 NSCO 16 CANADA PROVINCE OF NOVA SCOTIA COUNTY OF HALIFAX I NTH E C 0 U N T yeo U R T
OF DISTRICT NUMBER ONE
BETWEEN: HER MAJESTY THE QUEEN - and TOSHIDE ITO Michael A. Pare, Esq., Counsel for the Appellant. Thomas Pittman, Esq., Counsel for the Respondent. 1992, January 7th, an appeal from a decision of the Provincial Court. was convicted of one offence under the Tuna Fishery Regulations, requiring tagging, and acquitted of several others. appeals the acquittals and Mr. and sentence. The facts are generally his capacity as broker supervised the preparation of tuna for shipment to Japan. The which was attached when the fish one of the fish. The tags were in the process of trimming them for shipment. removed, cannot be reattached to the flesh of Ito wrapped the fish in plastic C.H. No.: 74458 Appellant Respondent Bateman, J.C.C.:- This is Mr. Ito The Crown Ito appeals his conviction agreed. Mr. Ito, in 3 bluefin Department of Fisheries tag was caught had fallen off removed from the other two The tags, once the tuna. Mr. and taped the broken tags
- 2 to the wrapping. He believed Regulations. The fish were seized in an airport inspection. Mr. Ito was charged wi th removing the tags on the three fish and with possessing untagged tuna - The Learned Provincial Mr. Ito on two of the first three counts He convicted on the third count R (1974), 15 C.C.C. (2d) 524 possession charge in relation to that same fish. the defence of due diligence as regards all other counts. There is no suggestion to make illegal use of the tags. The Regulations read: "12(1) Where a bluefin is and killed, the person the bluefin shall to ita numbered tag issued Minister for that purpose. (2) No tag that to a bluefin shall therefrom except at bluefin is prepared for consumption. he was complying with the a total of six counts. Court Judge acquitted (removing the tags). and, applying Kienapple v. (S.C.C.), acquitted on the He accepted that Mr. Ito intended caught that killed forthwith attach by the is affixed be removed the time the
- 3 13 No person shall, without lawful excuse, have in his possession any dead bluef in or portion thereof unless there is attached thereto a numbered tag referred to in section 21. The Respondent says, that the Learned Trial Judge wrongly interpreted the requirement that the tag be "a ttached II or 11 af fixed 11 to the tuna. Judge Curran interpreted the words to mean that the tag must be attached to the flesh of the tuna. The Respondent submits that it is sufficient for the tag to remain associated with the tuna, for example, attached to the wrapping. The Department says, however, that the purpose of the Statute and Regulations is conservation of the tuna fishery. A limited number of tuna are permitted to be caught. The Department does random checks of tuna carcasses to ensure they are legal. Unless the tag is attached to the flesh of the tuna the Department has no way of ensuring that the tag is not being reused. Once a tag has been affixed to the flesh it cannot be removed without breaking. The Department is concerned that permitting tags to be attached to the wrapping would facilitate tags being used for one fish, then sent back
- 4 to a fisherman and used for another fish. on each tag. The Department has it to check a tag number and determine if the tag has already been used for another fish. The Judge indicated, however, that check the tag numbers is time is dependent upon there being accurate of each tuna caught. That does the Department cannot, by checking always accurately determine whether it used. The Respondent says be fixed to the flesh of the tuna at all times is impractical in a commercial fi shery. The for shipment to various separate tag cannot serve that purpose. for shipping to minimize weight - the tag is therefore innocently to a waste portion of the fish. when such events occur, the accomodate with duplicate or substitute tags. In support of the interpretation of 'attached' is impractical and not consistent wi th a commercial fishery, the new evidence. There is a number a system in pla-ce to enable evidence before the Trial the Department's ability to consuming. Additionally, it and timely reporting not always occur. Hence, the number on the tag, has been previously that to require the tag to tuna is often cut into parts destinations. The single Similarly, the fish is trimmed and maximize presentation removed if it is attached The Department responds that Department of Fisheries will argument that the strict Respondent seeks to introduce
- 5 Soth counsel agree that the conclusion of the trial is admissible. however, that the authorities extend to the admission type of evidence proposed by the Respondent. opposes admission of the evidence. The Respondent seeks evidence of Mr. Ito relating to the preparation of sale in September of this year the offence charged. The Affidavit, two other Affiants, relates an occasion when a fishery officer attached tags to tuna for shipment by taping the tags to the plastic wrapping of the tuna. The test for the is set out in Palmer and Palmer v. R., 193 (S.C.C.). Summarizing: (1) the evidence it could have been adduced at trial. (2) the evidence potentially decisive issue. (3) the evidence must be capable of belief. (4) the evidence must be such as would be expected to have affected the result. -
evidence occurring after I am not convinced, of the The Department to introduce affidavit tuna for - one year after the date of which is supported by admission of fresh evidence (1979), 50 C.C.C. (2d) should not be admitted if, must bear upon a decisive or
- 6 I make no finding as to whether this type of evidence is within the contemplation of the authorities permitting the introduction of new evidence. The Respondent says to properly set out the impracticality of attaching the tags to the flesh of the fish in a commercial fishery. the evidence of the actions of determinative of that point. of the regulation is not driven create difficulties for the commercial fishery. is to be interpreted in accord the text. Only if the text is ambiguous should there be resort to other aids. The evidence sought this context, not determinative of not admit the evidence. The Learned Trial plain meaning of the words is that the tags are required to be fastened in some way to the body of the tuna and not merely placed on top of it." ln British Columbia v. [1989] 2 R.C.S. 24 (S.C.C.) at p. as to the construction of statutes: the evidence is tendered In my view one fishery officer is not Further, the interpretation by whether or not it would The Regulation with the plain language of to be introduced is in a decisive issue. I will Judge determined that "the Henry Samson Belair Ltd. 31 McLachlin J. states,
- 7 "In approaching this as my guide the from Driedger, Statutes (2nd ed. 1983), at p. 105: The decisions •.• indicate provisions of an enactment to a particular case are to be in the following way: 1. The Act as a read in its entire to ascertain the Parliament (the law or impliedly enacted the object of the sought to be achieved) , scheme of the Act between the individual of the Act). 2. The words of provisions to be particular case under are then to be grammatical and ordinary the light of the Parliament embodied a whole, the object the scheme of the are clear and unambiguous harmony with that and scheme and with body of the law, that is the end." Regulation 12(2) under which Mr. prohibits removal of a tag "that is affixed On two of the three fish a tag was affixed to the flesh or f in and was removed. It is not first three charges, to determine how the tag is to be attached. task, I take following passage Construction of that the relevant read whole is to be context so as intention of as expressly by the words), Act (the ends and the (the relation provisions the individual applied to the consideration read in their sense in intention of in the Act as of the Act and Act, and if they and in intention, object the general Ito was charged, to a bluefin". neces sary, as regards these
- 8 The tag ~ attached to the flesh in in the other and was removed by Mr. Ito. of the words of the section he tags were removed. Keeping them did not keep them attached or affixed as they had been. With all respect to do not agree that Mr. Ito exercised due diligence in attempting to avoid the commission of the offence; been defined by the Appeal Division. In R v. Kennedy, unreported, Nov. 19, 1991, Chipman J.A. says at p. 3: "A defence of is available to the in the words of Dickson, Majesty the Queen v. of The City of Sault [1978] 2 S.C.R. 1200 at 1326, he: ' ••• reasonably a mistaken set of facts which, if true, would act or omission or if he took all steps to avoid event. ' The respondent misar9rehension of fact. his actions, which in law amounted to angling as defined in the Regulation." And at p. 4: -----~~ - ~-.---- ---- one case and the fin On the plain meaning committed the offence. The associated with the fish the Learned Trial Judge I as due diligence has due diligence respondent if, J. in Her The COrporation Ste. Marie, believed in render the innocent, reasonable the particular was under no He intended actions clearly
- 9 "The position respondent finds himself put by Freeman, J .A. in Denton v. R. (as S.C.C. No. -02391, when he said at p. 3: 'In any event, of due diligence established on Legally, the Appellant fishing within area .He intended each of the acts that together constituted the He wrongly supposed what he was doing when caught could not be fishing. From the perspective of the deck of boat, thi s may distinction, but clear one.'" While the finding of judge is a question of fact, defined. The Respondent admits the two tags, mistakenly believing tags remained wi th the fish, he the Regulati on s • He did .not accipentally remove the or take care that they were not the act which constituted the offence lie. Mr. Ito's mistake was one of law. Accordingly, I agree Learned Trial Judge as to the Ito guilty under S. 12 (2) with respect to the removal of the in which the is neatly by this court yet unreported, April 3, 1991) the defence was not the facts. was a closed to do offence. that considered a fishing seem a narrow it is a due diligence by the trial the defence must be properly that he willingly removed that if he ensured the would be in compliance wi th two tags removed. He intended to do The defence does not with the finding of the one conviction. I find Mr.
- 10 tag attached to the dorsal fin of the second fish, in relation to the fish from which the tag separated itself. As to the charges under Regulation 13, the plain words of the regulation, when read in the context of the Statute and Regulations as a whole, lead trial judge that "attached" means the· fish. The thrust of the Regulations control and regulation of the preservation of the species. The argument that this interpretation is onerous for those involved in the commercial fishery is not sufficient, in my view, to override the interpretation is not only expansive but would invite the practice inconsistent with the intent of the legislation. The Respondent argues, Mr. Ito was preparing the fish for tags could be removed. Mr. Ito's evidence is clear that was preparing the fish for shipment in a I have consulted a of which define 'consume', and therefore consumption, to mean eating or devouring. and acquit me to conclude as did the affixed to the flesh of and the Statute is fishery with a view to clear _ intent. Any other of the plain language, of recycling tags. This is in the alternative, that consumption, and thus the he raw state. number of dictionaries, all
- 11 Again, on the plain meaning of the words regulations, it cannot be said that Mr. in the context of preparing the fish to be every activity from the catching of the fish on, is ultimately directed toward end consumption of the product. that the intention of the regulation preparation for consumption is at the final processing stage. The remaining question, Ito exercised due diligence as 13. I have outlined, above, the diligence defence. Mr. Ito removed fish. The tag had fallen off in compliance with the Regulations the fish he continued to deal with the product and attempted to ship it to Japan. As above, acts which constitute possession steps to avoid possessing untagged a mistake of law. This is a strict with innocent motives can be caught in the result. the consequence of attempting accused with the very important diminishing resources. of the Ito removed the tag eaten. Arguably I am satisfied permitting removal on to cover removal of the tag then, is whether Mr. regards the charges under s. narrow context of the due the tags from two of the the third. Believing he was by keeping the tags with he willingly did all of the of the fish. He took no tuna. His mistake was liability offence. Persons That is to balance the rights of an objective of conserving our
- 12 In the result, Mr. three counts of removing the tag from the tuna under S. 12(2). As held by the Learned Trial acquittal in relation to the third fish separated. I also find him guilty possession of u·ntagged tuna under Regulation 13. The Crown concedes there is a conviction entered under the Section 12(2) charges, the entry of conviction should charges in relation to the same fish - As to the Trial Judge's finding of guilt on the single charge under S. 12(2), the Kienapple principle. The Respondent has sentence on the one count. He 30 days in lieu and forfeiture $1066.00). The Respondent submits that the order of forfeiture took both counsel by surprise. that the. Crown left open to the Court the matter of forfeiture. --- -- --- -.-. _._ .. _._.. -- Ito, is guilty on two of the Judge he is entitled to an from which the tag on the three counts of that in this instance, if be stayed. on the Section 13 applying Kienapple. I find he correctly applied appealed the Trial- Judge's ordered a fine of $250.00 or of the tuna (a value of The record indicates, however,
- 13 Counsel for the Respondent spoke of those submissions the Learned did. The sentence was well within the range of penalties open to the Court. I can see no reason to disturb the sentence. The matter is remitted for sentencing on the further Kienapple is foor the Trial Judge, on sentence. The Appeal is allowed dismissed with costs to the Crown. A against it. In the face Trial Judge ordered as he back to the Trial Judge four charges. The matter of and the cross appeal
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.