Court of Appeal for Ontario

Date: 2024-02-02 Docket: COA-23-CR-0163

Before: Nordheimer, Copeland and Dawe JJ.A.

Between:

His Majesty the King Respondent

and

Benjamin Carl Gollon and Gollon Brothers Wholesale Live Bait Inc. Appellants

Counsel: Joel Vale and David Fogel, for the appellants Michael J. Sims and Demetrius Kappos, for the respondent

Heard: January 18, 2024

On appeal from the convictions entered on May 10, 2022 by Justice Nancy A. Dawson of the Ontario Court of Justice, allowing an appeal from the acquittals entered on March 5, 2020, by Justice of the Peace Douglas P. Conley of the Ontario Court of Justice.

Reasons for Decision

[1] The appellants appeal their convictions for offences under the Fish and Wildlife Conservation Act, 1997, S.O. 1997, c. 41 (“FWCA”) and the Fishing Licensing Regulation, O. Reg. 664/98 (the “Regulation”), imposed following the Crown’s appeal to the Ontario Court of Justice. Leave to appeal to this court was granted in January 2023. The central issue on the appeal concerns the interpretation of the exemption set out in s. 32(1) of the Regulation, specifically, whether it applies to the prohibition under s. 31.3(1)(b) of the Regulation.

[2] For reasons that follow, the appeal is dismissed.

Factual Background

[3] The trial proceeded on an agreed statement of facts. The appellants did not hold a commercial baitfish license. In November 2018, on three occasions, the appellants bought live baitfish – emerald shiner minnows – from Pagonis Live Baits Inc. in Barrie, Ontario. Pagonis held a commercial baitfish license. Each of the three purchases of live bait by the appellants was in the range of 2000-3000 kg and was shipped in a tanker truck. The appellants transported the baitfish from Ontario to Wisconsin on the first two occasions, but were stopped at the Canada-U.S. border at Sarnia on the third occasion, and the baitfish were seized.

[4] It was agreed that the appellants’ purpose in purchasing and transporting the baitfish was commercial. It was agreed that it was Mr. Gollon’s understanding that he did not require a commercial baitfish licence because the seller held a valid commercial baitfish licence, and his intent was to purchase and transport the baitfish to the United States. It was agreed that the appellants did not conceal their activities, declared the loads at the U.S. border, and obtained the appropriate U.S. import permits.

[5] The appellants were jointly charged with three counts of buying baitfish for a commercial purpose without a commercial baitfish licence, contrary to s. 31.3(1)(b) of the Regulation, which is an offence under s. 97 of the FWCA. They were also charged with three counts of transportation of fish taken or possessed contrary to s. 31.3(1)(b) of the Regulation, which is an offence contrary to s. 56 of the FWCA. The counts of transporting fish contrary to the Regulation, in breach of s. 56 of the FCWA, were dependent on whether the counts of breaching s. 31.3(1)(b) of the Regulation were proven. The central issue at trial and on the appeal to the Ontario Court of Justice was the interpretation of the exemption in s. 32(1) of the Regulation, specifically whether it applied to the offences with which the appellants were charged.

[6] The trial judge held that the exemption in s. 32(1) applies to s. 31.3(1) of the Regulation, and acquitted the appellants of all counts. The Crown appealed to the Ontario Court of Justice. Dawson J. held that the trial judge erred in his interpretation of s. 32(1) of the Regulation. She held that, properly interpreted, the exemption in s. 32(1) does not apply to s. 31.3(1)(b) of the Regulation. As the facts were not in dispute, Dawson J. set aside the acquittals and entered findings of guilt on all counts.

Interpretation of s. 32(1) of the Regulation

[7] The appellants argue that Dawson J. erred in holding that the exemption in s. 32(1) of the Regulation does not apply to the prohibition set out in s. 31.3(1)(b) of the Regulation. The appellants argue that the s. 32(1) exemption applies to the prohibition in s. 31.3(1)(b), and that as long as the seller of the baitfish has a commercial baitfish licence, no offence is committed by the commercial purchaser. The appellants rely in particular on the fact that the s. 32(1) exemption applies to a person who buys “fish” directly from a licence holder and that “baitfish”, as a subgroup of fish, falls within the definition of “fish”.

[8] We do not accept the appellants’ arguments. Applying the modern approach to statutory interpretation, the text, context, and purpose of s. 32(1) of the Regulation, and the other provisions at issue, lead to the conclusion that the exemption created by s. 32(1) does not apply to s. 31.3(1)(b) of the Regulation: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 117-18.

[9] The provisions of the Regulation and the FWCA relevant to the issue of statutory interpretation in this appeal are as follows:

The Regulation

31.3 (1) Except under the authority of a commercial bait licence that authorizes the holder to take, buy or sell leeches or baitfish, a person shall not,

(b) buy or sell leeches or baitfish for commercial purposes.

32. (1) A person who buys fish directly from the holder of an aquaculture licence, commercial fishing licence, commercial bait licence or document described in subsection (2) or (3) is exempt from the requirement in subsection 51 (1) of the Act to have a licence to buy fish.

The FWCA

51 (1) A person shall not buy or sell fish that belong to a species that exists in Ontario waters or fish prescribed by the regulations, except under the authority of a licence and in accordance with the regulations.

(3) Subsection (1) does not apply in the circumstances prescribed by the regulations.

56 A person shall not transport wildlife or fish that was killed, captured, taken or possessed contrary to this Act, the regulations, or the Fisheries Act (Canada) or the regulations under that Act.

97(1) A person who contravenes any provision of this Act or the regulations is guilty of an offence.

[10] “Fish” is defined in the FWCA as having the same meaning as in the federal Fisheries Act, R.S.C. 1985, c. F-14, which, in turn, defines fish as including “(a) parts of fish; (b) shellfish, crustaceans, marine animals and any parts of shellfish, crustaceans or marine animals; and (c) the eggs, sperm, spawn, larvae, spat and juvenile stages of fish, shellfish, crustaceans and marine animals.” “Baitfish” is defined in the Regulation by incorporating by reference the definition of “baitfish” in the federal Ontario Fishery Regulations, 2007, SOR/2007-237, which defines baitfish by a specific list of species native to Ontario set out in a schedule to the regulation. The emerald shiner minnow is listed in the Ontario Fishery Regulations in the schedule defining “baitfish”.

[11] We begin with the text. Section 32(1) of the Regulation expressly states what it provides an exemption to – the offence under s. 51(1) of the FWCA. Thus, the text of s. 32(1) supports that the exemption it creates only applies to the offence set out in s. 51(1) of the FWCA. The appellants were charged with different offences. While it is true that on literal reading, “fish” in s. 32(1) encompasses “baitfish”, the whole of s. 32(1) must be given meaning. The specific reference in s. 32(1) to it being an exemption to the offence under s. 51(1) of the FWCA supports reading the exemption as limited to applying to the s. 51(1) offence. Further, as we turn to next, the context and purpose of the FWCA and the Regulation also support this interpretation of s. 32(1) of the Regulation.

[12] The context of the various statutory and regulatory provisions supports the conclusion that the exemption created by s. 32(1) of the Regulation does not apply to the offence of violating the requirements of s. 31.3(1)(b) of the Regulation. The offence in s. 51(1) of the FWCA is a general prohibition on buying or selling fish of species that exist in Ontario or prescribed by the regulations, except under authority of a licence. By contrast, the prohibition in s. 31.3(1)(b) is more specific – it is concerned only with “leeches or baitfish”, and only with buying or selling the leeches or baitfish “for commercial purposes.” In this context, the exemption in s. 32(1) of the Regulation is meant to apply to a person who buys fish from a holder of a licence where the person is not buying the fish for commercial purposes. It is not reasonable to interpret the exemption in s. 32(1) of the Regulation as undermining the more specific restrictions on buying or selling leeches or baitfish for commercial purposes set out in s. 31.3 of the Regulation.

[13] Finally, the purpose of the FWCA and its regulations in general, and the Fish Licensing Regulation in particular, also support the conclusion that the exemption in s. 32(1) of the Regulation does not apply to the offences the appellants were charged with. The purpose of the FWCA and its regulations is to provide a scheme of wildlife conservation and management, including the establishment of ethical, humane, and responsible hunting practices, sustaining healthy populations of wildlife for future generations, regulating the commercialization of wildlife, and encouraging public safety: Ontario Federation of Anglers & Hunters v. Ontario (Ministry of Natural Resources) (2002), 211 D.L.R. (4th) 741 (Ont. C.A.), at para. 44; Ontario Black Bear/Ontario Sportsmen & Resources Users Assn. v. Ontario (2000), 19 Admin. L.R. (3d) 29 (Ont. S.C.), at para. 7.

[14] Looking more specifically at the provisions of the Regulation regarding baitfish, they create a licencing regime for the purpose of regulating the commercial taking, buying, or selling of baitfish. The Regulation creates bait management zones to prevent the spread of disease. It restricts transport of bait in or out of bait management zones. One of the means by which these goals are accomplished is by conditions imposed on the licences of commercial baitfish licence-holders regarding where baitfish may be transported and recordkeeping requirements.

[15] The appellants argue that they can shelter under the licence of the seller from whom they bought the baitfish. But accepting this argument would undermine the purpose of the regulatory regime for commercial use of baitfish.

[16] The licence of the seller of the baitfish in this case, which was included in the agreed statement of facts, was subject to various regulatory conditions. These included: that a person operating under the licence is prohibited from transporting live baitfish out of the VHS Management Zone; that a person operating under the licence is prohibited from moving live or dead baitfish out of the Lake Simcoe Management Zone; and a recordkeeping requirement that the licence-holder complete a daily bait dealers log, subject to inspection on request by a conservation officer acting under the FWCA. The VHS and Lake Simcoe Management Zones are demarcated on a map which forms part of the seller’s commercial baitfish licence. The VHS zone covers much of southern Ontario. The Lake Simcoe zone, as its name implies, covers a smaller area surrounding Lake Simcoe. The appellants’ transport of the baitfish to Wisconsin removed it from both zones.

[17] If the s. 32(1) exemption were interpreted as exempting a person buying baitfish for commercial purposes from someone with a licence from the prohibition set out in s. 31.3(1)(b), it would have the effect that the appellants could rely on the licence of the seller, but not comply with the conditions imposed on the seller’s licence, including the prohibition on transporting out of the two Management Zones and the recordkeeping requirement. This would undermine the licencing regime for commercial dealing in baitfish.

[18] In sum, the text, context, and purpose of s. 32(1) of the Regulation lead to the conclusion that the exemption only applies to the offence in s. 51(1) of the FWCA and does not apply to the prohibition in s. 31.3(1)(b) of the Regulation.

Defence of due diligence or mistake of fact under s. 101 of the FWCA

[19] In oral submissions, the appellants raised an argument not raised in their factum or in the courts below. They argued that their misinterpretation of the s. 32(1) exemption establishes a defence under s. 101 of the FWCA, which provides for due diligence and mistake of fact defences. This court will not normally entertain arguments not made in a party’s factum; however, we will deal with this submission briefly in the circumstances.

[20] We reject this argument. The appellants’ mistake of fact argument ignores the well-established distinction in penal law between mistake of fact and mistake of law. Misinterpretation of the governing law is a mistake of law and does not provide a defence.

[21] Nor is a mistake of law capable of establishing a due diligence defence: R. v. Pontes, [1995] 3 S.C.R. 44, at paras. 33-34; La Souveraine, Compagnie d’assurance générale v. Autorité des marchés financiers, 2013 SCC 63, [2013] 3 S.C.R. 756, at para. 61. Further, even if the mistake of law problem did not foreclose a due diligence defence, there was no evidence (or agreed facts) of steps taken by the appellants which could found a due diligence defence. Although it was an agreed fact that Mr. Gollon understood that he did not require a commercial baitfish licence because he was purchasing the baitfish from a seller with a commercial baitfish licence and transporting the baitfish to the U.S. for commercial purposes, there was nothing in the agreed statement of facts about why he believed this. As noted, no defence of due diligence or mistake of fact was raised in the courts below.

Disposition

[22] The appeal is dismissed.

“I.V.B. Nordheimer J.A.”

“J. Copeland J.A.”

“J. Dawe J.A.”