Cite as: R. v. Phillips, 1992 NSCO 24 .. • 1990 ' IN THE COUNTY COURT OF DISTRICT NUMBER BETWEEN: SCOTT B. PHILLIPS HER MAJESTY THE ' HEARD: At Yarmouth, Nova Scotia, on the 12th day of July, A.D. 1990 BEFORE: The Honourable Judge Charles E. Haliburton, J.C.C. CHARGE: Section 33(2) of the Atlantic Fishery Regulations DECISION: The 19th day of March, COUNSEL: S. Clifford Hood, Q.C., Esq., for the Appellant Richard W. P. Murphy, Esq., for the Respondent D E C I ' C. Y. No. 54 7 0 THREE APPELLANT - and -QUEEN RESPONDENT A.D. 1992 S I 0 N
HALIBURTON, J.C.C. Scott Phillips has appealed his conviction by James D. Reardon, J.P.C., on the charge that at Yarmouth, or about May 14th, 1989, he, Scott Phillips, ~being a person fishing license, to wit: a license FISHERIES LIMITED, dated the 19 89, and conditions of 1 icense dated did fail to comply with a that he did take a quantity combination of cod, haddock that which was permitted Section 33(2) of the Atlantic 1985, c. F-14, as amended.~ 'l'he evidence was that a Fishery Scott Phillips as the man he saw aboard the vessel 1989, at approximately 1:30 in the morning. ' up~ at the wharf. He boarded the vessel and spoke to Phi 11 ips, asking permission to check groundfish. As a result of Phillips of his be 1 ie f that ~he was to see the license which he provided". The documents ref erred to to the witness by Phillips consists of of paper, including a copy of the application for license s{gned by one Randall Theriault, together wjth 20th April 1989, and the Conditions of Lj_cense fixing quota for the vessel for the period May 12th to May 15th, This latter document is dated May 12th and is signed by Phillips as ~ 1 icense hal der". When the determined that it had, indeed, t: n( " " Con d i. t ;_on s o E L _;_ c c n s e " . Nova Scotia, on under the authority of a issued to SEA TRACK 20th day of Apr i 1 , A.D. Hay 12th, 198 9, condition of suct1 license in of fish, to wit: a and pollock in excess of to be taken contrary to Fishery Regulations, Officer ( Ba;:-nes) id~ntified on May 14th, He saw him ~tying the hold for the quantity of his observations, he advised in viol at ion~ and ~I as ked as "the 1 icense ~ de 1 i vered SC'VCl:"al sepurnto shr<'rs a form of license dated the tri~) l9H9. vessel was unloaded, it was exceeded its quota as fixed in
- 2 On that initial contact Officer had given him the police caution, that is, that he "need not say anything", and had advised Counsel". Some 30 hours later, after the cargo of fish had been weighed and obviously after some Fishery Officer approached Phillips morning, advised him that he was and asked him whether he was vessel. No further Charter right or caution were given. a voir dire, the Trial Judge excluded any evidence response Mr. Phillips gave. Crown Counsel then sought of the activities which the Phillips to be performing on the vessel. he was working on some wiring presume would be more or less in the waist of the vessel. were two other crewmen aboard at the and, as already mentioned, it licensing documents which were seized and made an exhibit. At the conclusion of the hearing and after submissions by Counsel, the Trial Judge made certain findings of fact. found that Phillips was "different crew member" primarily because he License as "license holder''. With respect to the "Conditions of License" which imposed the quota that it was a "document in ... possess ion" at page 36: -with Phillips, the Fishery him of his "right to further consideration, the on the following Monday continuing his investigation, the "captain" of the fishing After as to the to elicit some particulars Fishery Officer had observed When first observed, ..) behind the wheelhouse which I There time the vessel tied up was Phi 11 ips who produced the He from the ordinary type of had signed the Conditions of 1 imi ts, Judge Reardon found and he went on to say,
- 3 ' This Court is satisfied signature to the document license conditions, was conditions ... Judge Reardon was sa·tisf ied which then applied to this particular vessel evidence to raise any question exceeded that quota limit. As Defence Counsel pointed out, appeal, the general rule is that the captain of a fishing vessel is the person who is charged with such an offence. before the Trial Court, no direct evidence that the Accused was the catJtain of this fishing vessel. Reardon concluded: ' (Page 36) The evidence shows the accused's offence; and, therefore, Court that the~e was the Section 21{1) of the Criminal the offence .... THE ISSUES The Appellant puts forward the issues in the following form: (1) Whether or not the Learned Trial Judge law in making findings supported by the evidence; ( 2) Whether or not the Learned Trial Judge erred in law in finding that the accused was guilty of the offence as being a party to the offence? ( 3) Whether or not the Learned Trial Judge erred in law when he denied the defence and denied the accused natural justice by - that Mr. Phillips by his previously referred to, the fully aware of these as to the quota 1 imi t and there was no about the fact that the catch both then and on this There was, In that ~egard, Judge complicity in the it is the finding of this necessary mens rea under Code by being a party to erred in of fact which were not accused full answer and
- 4 denying the accused full answer and defence to an allegation that the accused was allegation was neither averred in the information, nor in the conduct of the trial by the Crown, alleged in any of the productions provided by the Crown to the accused and did thereby violate the make full answer and defence as guaranteed by the Charter? ISSUES 2 & 3 Counsel has pointed dealing with charges of this captain of the vessel alone who is named as the Defendant. argues that to convict the Accused as is to depart from the norm and that it was Crown to notify the Accused that it intended to proceed against him as a party. Defence Counsel argues in part: (Paragraph #57) It is inferred from the decision of the Learned Trial Judge that the Appellant offence as being a party thereto. that an offence had occurred Appellant's purported signature 1 icense. As a member of the crew (if in fact the Appellant did not have any what the vessel was doing nor the quantity of fish board nor did he have any way to control this. It is to be noted that the last statement cannot be drawn the evidence. The Accused Phillips accordingly, there was no direct whether he "had any control" or the vessel. a party when such nor under the disclosure rules accused • s right to out, quite correctly, that in nature, it is ordinarily the He a "party to the offence" incumbent upon the was found guilty of the Proof of knowledge was implied from the on a condition of he was) way of knowing exactly on from did not testify and, evidence before the Court any role in the management of
- While I agree with Counsel that it is customary that only the captain be charged, there was Reardon that Phillips was not the captain. in my experience, to proceed against party, I know of no rule that member of the crew from being parties. I accept the representations of Crown Counsel that the law does not require advance notice to an accused person either by the wording of the information or otherwise that he is being proceeded ~gainst "as~ party" as opposed to "as the principal". In his brief to the Court, has relied on s. 21 of the Criminal Code, as well as authorities with respect to "parties ' Reardon found, as fact, that the operations of the vessel to ordinary crewman. Clearly, the operators of the vessel. Phillips was To conclude that he was party unreasonable. ISSUE NO. 1 The Appellant argues made by the Trial Judge were not "supported by the evidence". One such finding was that the signed by Phillips. Fishery Officer thought he had been present when Phillips signed this ' but, as Defence Counsel argues: 5 -no evidence before Judge While it is novel, a person "found on" as a would prevent each and every charged with the offence as Mr. Murphy for the Crown a number of to an offence". Judge Accused was involved in the a degree greater than just an offence was committed by the one of those operators. to the offence then, was not that certain findings of fact "1 icense conditions" had been Barnes testified that he document "Mr. Barnes did not witness the
- 6 signature"; Fishery Officer Francine Jacquard did. Counsel argues, there is no evidence before the Court any other source that the signature is in fact that of the Appellant. Of Fishery Officer Barnes' evidence, ever state that he believes it to argues further that (Page 6) The Crown did not prove that the Appellant was of the crew. The only evidence is that the Appellant was repairing some wiring on the vessel. These points are well relate to findings of fact made Judge not only has the opportunity to assess the evidence given by the witnesses who testify but appropriate inferences based on including the fact that the Accused did not testify. a legible signature on the "Conditions of License". was clearly that of the Appellant. that it was the signature of the Appellant. aboard the fishing vessel at the time it tied up after a fishing trip. The obvious inference was very least, a member of the crew. Accused had, in fact, signed the further logical inference flows some special agency of the owner. As Defence by Francine Jacquard or he argues: "Nor does he be (his signature)". He a member made by Counsel, however, they by the Trial Judge. The Trial had also the right to draw all the evidence before him, There was The name The obvious inference was The Appellant was that the Accused was, at the Having inferred that the "Condit ions of License", the from that that he acted under
- 7 ' Mr. Murphy, on behalf of the Crown, Salhaney on Canadian Criminal Procedure 4th Book) at page 441 and following, stated that unless conclusions Judge are unreasonable or cannot which was before him, then such overturned on appeal. I accept that as the law. I cannot conclude on the Trial Judge committed a reversible error in law in reaching the findings he did. The appeal will, accordingly, conviction and penalty are hereby affirmed. DATED at Digby, Nova Scotia, this 19th day of ' A.D. 1992. JUDGE OF TO: Mrs. Diane Hamilton Clerk of the County Court P.O. Box 188 Yarmouth, Nova Scotia BSA 4B2 Mr. S. Clifford Hood, Q.C. Hood & Associates Barristers & Solicitors P.O. Box 670 Yarmouth, Nova Scotia BSA 4B6 Solicitor for the Appellant - has cited the text (1984: Canada Law for the proposition generally of fact reached by the Trial be supported by the evidence findings of fact cannot be a correct statement of the basis of the evidence that be dismissed, the March, OF THE COUNTY COURT DISTRICT NUMBER THREE
- 8 -AND TO: Mr. Richard W. P. Murphy Chipman, Fraser, Pink & Nickerson Barristers & Solicitors P.O. Box 580 Yarmouth, Nova Scotia BSA 4B4 Solicitor for the Respondent CASES AND STATUTES CITED: Salhaney on Canadian Criminal Procedure 4th (1984: Canada Law Book) at Page 441
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