Pisces is a privately held company that operates as a commercial fisher in Lake Erie, it held Commercial Food Fishery Licences CH0065 and AY0269. These licences authorized Pisces to engage in commercial fishing in particular zones on Lake Erie.
Jorge Barbosa is one of the directors of Pisces. He was directly involved in the day-today business operations of Pisces on land. Pisces owned and operated a commercial fishing vessel, the AD-CO II which was based principally in Erieau, Ontario during the 2013 summer fishing season. Pisces employed Melchiorre Pace as captain of the vessel at the relevant time. Pisces hired Captain Pace in 2008. Captain Pace was also a “Designate” under the licences held by Pisces. It is undisputed that both Pisces and its Designates were bound by the terms of the licences issued to Pisces.
On July 18, 2013, MNRF executed a search warrant onboard the vessel while it was at dock in the harbour at Erieau. Three logbooks were seized which contained information on fishing activities during the 2012 and 2013 fishing seasons. The logbooks were authored by Captain Pace and provided by him to the officers during the execution of the warrant.
A review of the logbook revealed deficiencies in the period May 24, 2013 to July 16, 2013. Some of the deficiencies were readily apparent on the face of the logbook in that required information was not recorded. Other deficiencies were found when the logbook entries were compared to the DCRs. They were charged accordingly and prosecuted but acquitted. The Crown appeals from the decision at trial of Justice Fuerth (OCJ) dated March 9, 2015 pursuant to which the Respondent, Pisces Fishery Incorporated (hereafter “Pisces”) was acquitted of four summary conviction charges under the Ontario Fishery Regulations, 2007. The Crown seeks to set aside Justice Fuerth’s decision, to enter convictions and to sentence Pisces. Alternatively, the Crown asks that the decision be set aside and a new trial be directed.
The Crown appeals from the decision at trial of Justice Fuerth (OCJ) dated March 9, 2015 pursuant to which the Respondent, Pisces Fishery Incorporated (hereafter “Pisces”) was acquitted of four summary conviction charges under the Ontario Fishery Regulations, 2007. The Crown seeks to set aside Justice Fuerth’s decision, to enter convictions and to sentence Pisces. Alternatively, the Crown asks that the decision be set aside and a new trial be directed. The following grounds of appeal are set out in the Notice of Appeal:
1. The court erred in finding that the defendant was entitled to rely on the defence of due diligence and/or that a due diligence defence was established as a defence in this case.
2. The court erred by finding that the defendant in the circumstances could have been “satisfied” that this captain was complying with the licence requirements. As a result, the court erred in its assessment of the defendant’s standard of care on due diligence.
3. The court erred in its assessment of the extent to which the
The Crown appeals from the decision at trial of Justice Fuerth (OCJ) dated March 9, 2015 pursuant to which the Respondent, Pisces Fishery Incorporated (hereafter “Pisces”) was acquitted of four summary conviction charges under the Ontario Fishery Regulations, 2007. The Crown seeks to set aside Justice Fuerth’s decision, to enter convictions and to sentence Pisces. Alternatively, the Crown asks that the decision be set aside and a new trial be directed. The following grounds of appeal are set out in the Notice of Appeal:
1. The court erred in finding that the defendant was entitled to rely on the defence of due diligence and/or that a due diligence defence was established as a defence in this case.
2. The court erred by finding that the defendant in the circumstances could have been “satisfied” that this captain was complying with the licence requirements. As a result, the court erred in its assessment of the defendant’s standard of care on due diligence.
3. The court erred in its assessment of the extent to which the defendant could rely on delegation to fulfill the defendant’s due diligence function.
4. The court erred in finding that a due diligence defence was established with respect to the two counts concerning Daily Catch Reports (counts 1 and 2).
5. The court erred in its assessment that a due diligence defence was made out with respect to the two counts (counts 3 and 4) concerning log books that the court found to be deficient on their face in violation of licence requirements.
The defendant asserts the following positions on appeal:
1. The finding of due diligence is amply supported by the evidence at trial;
2. The finding of due diligence is a finding of mixed fact and law which is entitled to deference from this court; and,
3. The trial judge clearly and properly stated the applicable law.
The court allowed the appeal and set aside the acquittals.
On March 9, 2015 the accused, Pisces Fishery Incorporated was acquitted of four summary conviction charges under the Ontario Fishery Regulations, 2007. The fact of the inadequacy of the logbook entries and the inaccuracy of the DCRs completed and submitted by Captain Pace was not disputed on the appeal herein. Exhibit 17 at trial is a transcribed statement by Captain Pace after being cautioned. In that statement, Captain Pace admitted that he was the captain of the vessel and that he failed to properly maintain the logbook and provided false information in the logbook and DCRs.
It is also undisputed that prior to being employed by Pisces, Captain Pace had a lengthy history of non-compliance, including violations for misreporting harvests, locations and weights of fish in DCRs. He had received previous warnings and convictions for such conduct.
On April 29, 2008, (five years before the time period with which the present charges are concerned), the then Ministry manager, Michael Morencie met with both Pace and Barbosa to express concern about Pace’s lengthy history of non-compliance. At trial, Morencie testified that the purpose of the meeting was to stress to Captain Pace that he needed to take more care in filling out his Daily Catch Reports. Justice Fuerth found that charges before him were strict liability offences and the defence of due diligence was made out by Pisces. Specifically, Justice Fuerth wrote:
“The passage of time without conflict, without any apparent problems, and I appreciate that there was a record during the period of 2008 through to 2013 and it is not entirely clear to me, based on that record, what the nature of those infractions may have been. But I am satisfied that over a time Mr. Barbosa would have been, if you will, satisfied that his cautions and his reviews with Captain Pace, from time to time, of the obligations under the license was having the necessary effect that Captain Pace was complying with what was required.”
Justice Fuerth found that charges before him were strict liability offences and the defence of due diligence was made out by Pisces. Specifically, Justice Fuerth wrote:
“The passage of time without conflict, without any apparent problems, and I appreciate that there was a record during the period of 2008 through to 2013 and it is not entirely clear to me, based on that record, what the nature of those infractions may have been. But I am satisfied that over a time Mr. Barbosa would have been, if you will, satisfied that his cautions and his reviews with Captain Pace, from time to time, of the obligations under the license was having the necessary effect that Captain Pace was complying with what was required.”
2nd instance: The finding of due diligence at trial must be set aside because the standard of care applied was incorrect and falls far below that which should have been applied. This is an error of law. Even if the application of the test to the facts before him is entitled to deference by this court, the trial judge’s conclusion that, in effect, there was nothing more the defendant could have reasonably done is, in my view, palpably incorrect. As indicated above, there was a myriad of measures open to the defendant that he did not employ. The evidence at trial does not establish on a balance of probabilities that the defendant acted with due diligence in relation to the matters charged during the period in question.
Between the 24th day of May, 2013 and the 16th day of July, 2013 at the Village of Erieau of the Municipality of Chatham Kent, Kent County in the said West Region did violate condition 1(a) of Ontario Commercial Food Fishing License AY0269, held by Pisces Fishery Incorporated, by failing to report accurately and completely on Daily Catch Reports, to wit: contrary to section 4(2) of the Ontario Fishery Regulations, 2007, (SOR/2007 – 237) as amended, thereby committing an offence pursuant to section 78 of the Fisheries Act, R.S.C. 1985, Chapter 14 as amended.
that Melchiorre Pace … and Pisces Fishery Incorporated … together did violate condition 1(a) of Ontario Commercial Food Fishing License CH0065, held by Pisces Fishery Incorporated, by failing to report accurately and completely on Daily Catch Reports, to wit: incorrect commercial fishing locations, incorrect gill net set durations and incorrect length of the gill nets lifted, contrary to section 4(2) of the Ontario Fishery Regulations, 2007, (SOR/2007 – 237) as amended, thereby committing an offense pursuant to section 78 of the Fisheries Act….
That Melchiorre Pace … and Pisces Fishery Incorporated … together did violate condition 2(b) of Ontario Commercial Food Fishing Licence AY0269, held by Pisces Fishery Incorporated, by failing to maintain an accurate logbook, contrary to section 4(2) of the Ontario Fisheries Regulations, 2007, (SOR/2007 – 237) as amended, thereby committing an offense pursuant to section 78 of the Fisheries Act….
That Melchiorre Pace … and Pisces Fishery Incorporated … together did violate condition 2(b) of Ontario Commercial Food Fishing Licence CH0065, held by Pisces Fishery Incorporated, by failing to maintain an accurate logbook, contrary to section 4(2) of the Ontario Fisheries Regulations, 2007, (SOR/2007 – 237) as amended, thereby committing an offense pursuant to section 78 of the Fisheries Act….”
Ontario Superior Court Of Justice
