R. v. Yong-Sheng Zhang and Alltheway Trucking Inc.

Information Nos.: 12-20163 and 12-20171

Court: Ontario Court of Justice

Before: Her Worship Justice of the Peace M. Ryan-Brode

Date: September 16, 2013

Location: Windsor, Ontario

Parties and Counsel

Crown: D. Kappos, Provincial Prosecutor

Defendants:

• Yong-Sheng Zhang (represented by T. Jones, Agent for Mr. Rondinelli, counsel)
• Alltheway Trucking Inc. (represented by T. Jones, Agent for Mr. DiLuca, counsel)

Charges

The defendants were charged that on or about the 25th day of January, 2012, at the City of Windsor, together did possess live invasive fish, to wit: live grass carp, without the authority of a licence, contrary to section 6(1) of the Ontario Fishery Regulations, 2007, as amended, thereby committing an offence pursuant to section 78 of the Fisheries Act, R.S.C., 1985, as amended.

The defendants were also charged that on or about the 28th day of February, 2012, at the City of Windsor, together did possess live invasive fish, to wit: live bighead carp, without the authority of a licence, contrary to section 6(1) of the Ontario Fishery Regulations, 2007, as amended, thereby committing an offence pursuant to section 78 of the Fisheries Act, R.S.C., 1985, as amended.

Reasons for Judgment

A. Introduction

These matters were before the court for trial on June 3rd, 4th, 5th, 6th, and 7th of 2013, and ultimately remanded to September 16, 2013, for judgment. During the course of the trial, the prosecution invited the court to dismiss the charges against Massimo D'Elia, who was a third defendant to both counts. Charges against a fourth defendant, Medex Fish Importing and Exporting Company Limited, were withdrawn before the trial at the request of the prosecution. None of the defendants before the court chose to call any evidence on their behalf.

B. Overview

On January 25th, 2012, and February 28th, 2012, a tractor-trailer that had traversed the Ambassador Bridge was referred for secondary inspection. Invoices describing the load were submitted to Canada Customs on each occasion for pre-approval as part of the PARS program. On both dates, the invoices listed the vendor as Northeast Arkansas Fish Farms with transportation provided by Alltheway Trucking.

The invoice on January 25th included fresh bighead carp and fresh grass carp as part of the commodities being transported, and the invoice on February 28th included fresh bighead carp. An officer of the Ministry of Natural Resources was called to perform an examination of the load on each occasion, and as a result of those examinations, the charges before the court were laid.

C. The Evidence

(a) Canada Border Services Agency Officers

Lori Langlois, a CBSA officer since 1991, was stationed at the Ambassador Bridge, commercial warehouse, on January 25th, 2012. As part of her assignment to the secondary examination team, she reviewed a Canada Customs invoice for a direct shipment to Canada on January 24th of commodities described as 5,000 pounds of live largemouth bass, 4,500 pounds of fresh bighead carp, and 6,800 pounds of fresh grass carp. The vendor was Northeast Arkansas Fish Farms, and the transportation indicated on the document was Alltheway Trucking. The invoice contained what she described as a PARS number, which would be unique to the trucking company.

With the Canada Customs invoice, she received a purchase invoice dated January 24th, 2012, listing grass carp hatchlings and bighead carp as some of the species purchased. In addition to performing standard compliance checks, she contacted the Ministry of Natural Resources because she was not familiar with the commodity and was concerned with the two types of carp disclosed. She had a conversation with the driver and received his passport in the name of Yong-Sheng Zhang. At her request, the truck was parked in a restricted area of Canada Customs and the driver and co-driver went to what was referred to as the drivers' room.

She described the truck as a type of flat-bed with tanks affixed, including two oxygen tanks. The tanks had hatches on top for the purpose of access to their contents.

Ms. Langlois testified that Officer Sprague arrived within an hour. After she briefed him on the shipment and the documents, they attended the dock area where the truck was parked so Sprague could examine the fish to determine if they were fresh and not live. She stood on the dock while Officer Sprague crawled up the ladder and looked into the tanks. He opened up some of the hatches and retrieved fish that he gave to her. She said that the fish appeared to be dead and were certainly solid as if cooled or frozen.

Two large totes had been filled with water and placed on the dock, and she put the three bighead carp Officer Sprague gave her in one tote and the four grass carp in a second. After observing no signs of life in the fish, she went into the office area with Officer Sprague. After approximately 15 minutes, they returned to the totes to see signs of life in some of the grass carp fish, but not the bighead carp. These signs included the gills moving in and out and a slight swimming motion. She brought the driver and co-driver to the dock to look at the totes and described the co-driver being splashed by one of the fish as he bent over the bin observing the fish.

She testified that Officer Sprague filled a third bin with water, retrieved a few more fish from the tanks on the tractor-trailer, and after an interval of ten to 15 minutes, one of those fish was swimming and moving its gills.

Alicia Howe, a CBSA officer since 1998, was stationed at the Ambassador Bridge, commercial operations, on February 28th, 2012. In the course of her duties, she reviewed a Canada Customs invoice for direct shipment to Canada on that date of 3,000 pounds of live largemouth bass, 14,000 pounds of fresh bighead carp, and 3,000 pounds of fresh white buffalo fish. The vendor was Northeast Arkansas Fish Farm and the transportation provider was Alltheway Trucking with a unique PARS code.

As a result of systems checks she performed, the Ministry of Natural Resources was contacted, and she spoke to the driver who was identified as Yong-Sheng Zhang. Officer Sprague attended approximately two hours later. The drivers had backed their truck up to the dock and Officer Howe watched the inspection being carried out, but did not participate. She described the truck as a flat-bed with large separate compartments filled with ice with fish packed in the ice. Access was through hatches on the top of the compartments. She noted that Sprague had to jump on the ice inside one of the compartments to get it loose enough to take some fish out. She watched him put some samples of fish from the tractor-trailer into containers with water. At that time, she could see no signs of movement by any of the fish in the containers. She testified that after 20 to 30 minutes, some of the fish were moving, in particular their tails or gills.

(b) Ministry of Natural Resources Officers

Kevin Sprague has been a conservation officer for the Ministry of Natural Resources for nine years. He was qualified as an expert in this proceeding in the area of fish species identification and provided additional testimony in a non-expert capacity.

He testified that he met CBSA Officer Langlois at the commercial vehicle inspection station of Canada Customs on January 25th. After reviewing documents, he proceeded to inspect the tractor-trailer and its load. He described it as a large tractor-trailer with "We go Alltheway Trucking" on both sides of the truck. It had separated compartments on top holding fish. He observed that each compartment had ice to keep the fish fresh and each species was packed separately. He climbed to the top of the truck and opened the doors to the compartments to perform his inspection. He identified tanks of both grass carp and bighead carp. In his testimony, Officer Sprague provided clear reasons for his identification of each species.

After 30 seconds or so of staring into the tanks, he noticed signs of movement in the grass carp and retrieved a random sample and put them in a large tote filled with water. The bigheads had no movement, but he took a couple and put them in a second bin. Soon after, some of the grass carp were moving gills and/or fins. He then took another sample of grass carp and put them in a third tote with water.

Officer Sprague took pictures and videos to document the condition of the fish. He felt that a total of five of the fish in his two samples of grass carp were alive.

As a result of his investigation, he seized the grass carp and released the rest of the load. He arranged for the samples to be delivered by a fellow MNR officer to the office of the MNR in Wheatley, Ontario to be placed in large tanks. The remaining grass carp were unloaded from the truck and released to a fish processor. During the unloading process, Officer Sprague watched for distinct movement of fish, but did not see any. He packed the carp in totes with heavy amounts of ice for shipment hoping the ice would assist in killing any live fish. He rejected the idea of killing each fish with a hammer as unreasonable.

Officer Sprague went to the lab at the MNR office in Wheatley that evening and on January 26th and observed that five of the grass carp were still alive. He took a video to document his observations. He monitored the fish until January 31st. On that date, only one had slight signs of movement in its fins; the remainder were dead.

On February 28th, Officer Sprague was called to the commercial vehicle inspection station at Canada Customs. He met CBSA Officer Howe there and was provided with a brief summary and some paperwork to review. He concluded after a visual inspection of the tractor-trailer and the review of the documents that it was the same vehicle he inspected on January 25th with the same driver and co-driver. The only portion of the load that interested him was the bighead carp. He took a sample from the truck after observing slight movement in a few bighead carp. He put them in a tote with water and observed a slight amount of movement.

Colin Stass is a conservation officer with MNR. On January 25th, he attended Canada Customs to pick up some Asian carp. He met Officer Sprague and took two bins from the dock and brought them back to the assessment office of the MNR in Wheatley. He unloaded the fish from the totes into containers in the wet lab there. He observed that some of the fish were dead, but others had movement in their gills or were swimming.

Sean Insley, a conservation officer with the MNR, attended the Ambassador Bridge, commercial section, on February 29th to assist Officer Sprague with the inspection of a truck carrying a load of fish. He understood that his job was to impound the fish until they were dead. He observed two totes filled with water with two bighead carp having slight movements. He continued to sample the fish on the truck and found no further signs of life. He ultimately released the load other than the two live fish which were frozen and tagged.

(c) Expert Evidence

Dr. Nicholas Mandrake was qualified as an expert witness in Ichthyology, the study of fishes, aquatic invasive species, and risk assessment of aquatic invasive species. In his view, the biological definition of death was the permanent cessation of biological function with no possible return to the state of life.

In his review of the videos taken by Officer Sprague, he identified some of the fish as live, both grass carp and bighead carp. He testified that the fish in the videos could not have been revived from death. Looking at the photos taken by Officer Sprague, he positively identified some as bighead carp and described other fish as being consistent with grass carp without being able to identify them with absolute certainty.

Dr. Mandrake reviewed the attributes of each specimen in detail before providing his viewpoint on the species identification. He indicated that Asian carp, a grouping which includes both bighead and grass carp, can survive quite a period of time outside of water with moist gills and, in fact, ice would prolong living. His evidence was that none of the Asian carp species are yet established in the Great Lakes Basin. Dr. Mandrake testified at length concerning the measures being taken to prevent that happening. He reviewed two reports published under the auspices of Fisheries and Oceans Canada, one from 2005, an Asian Carp Status Report, and one from 2012, a risk assessment of bigheaded carp for the Great Lakes Basin.

D. The Law

Section 6(1) of the Ontario Fishery Regulations, 2007 provides that:

"No person shall possess live invasive fish without a licence issued under subsection (2)."

Schedule one of that regulation classifies grass carp and bighead carp as species of invasive fish.

The Fisheries Act reads as follows:

Section 78.3:

"In any prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee or agent of the accused, whether or not the employee or agent is identified or has been prosecuted for the offence, unless the accused establishes that the offence was committed without the knowledge or consent of the accused."

Section 78.5:

"In any prosecution for an offence under this Act, where a question arises as to whether a person was issued a licence, the burden is on the person to establish that the licence was issued."

Section 78.6:

"No person shall be convicted of an offence under this Act, if the person establishes that the person:

(a) Exercised all due diligence to prevent the commission of the offence; or

(b) Reasonably and honestly believed in the existence of facts that, if true, would render the person's conduct innocent."

Section 78.6 is a codification of R. v. Sault Ste. Marie (1978), 40 C.C.C. (2d) 353. At page 373, Justice Dickson articulated this defence as follows:

"The doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability."

In R. v. Gander, 62 C.C.C. (2d) 326, at paragraph 22, Chief Judge Stuart of the Yukon Territorial Court set out the standard of care as follows:

"Reasonable care implies a scale of caring. The reasonableness of the care is inextricably related to the special circumstances of each case. A variable standard of care is necessary to ensure the requisite flexibility to raise or lower the requirements of care in accord with the special circumstances of each factual setting. The degree of care warranted in each case is principally governed by the following circumstances:

(a) Gravity of potential harm.

(b) Alternatives available to the accused.

(c) Likelihood of harm.

(d) Degree of knowledge or skill expected of the accused.

(e) Extent underlying causes of the offence are beyond the control of the accused."

In R. v. London Excavators & Trucking Ltd., 1997 O.J. No. 709, Justice Stone of the Ontario Court of Justice (Provincial Division) considered a defence of due diligence in the context of the Occupational Health and Safety Act, and ruled that adherence to industry practice is not in itself due diligence, but rather industry practice must model itself after the prevailing regulation.

In R. v. Rurobolt, a 2008 decision of the Provincial Court of Newfoundland and Labrador, Justice Trahey found that the defendant established due diligence in a Fisheries Act prosecution. In doing so, he relied on R. v. Courtaulds Fibres Canada (1992), 76 C.C.C. (3d) 68, in which the Court stated that:

"Reasonable care and due diligence do not mean superhuman efforts."

Justice Trahey also referred to R. v. British Columbia Hydro and Power Authority (1997), B.C.J. No. 1774 (BCSC) in which the court held that:

"In other words, an accused must take all reasonable steps to avoid harm. However, that does not mean an accused must take all conceivable steps."

Proof of the corporate identity of the defendant, Alltheway Trucking Inc., has been made an issue in these proceedings. The court is satisfied that means of proof other than a corporate profile report can establish the existence of a corporation beyond a reasonable doubt. (R. v. Colgate-Palmolive Ltd., 1972 O.J. No. 1040). These means can include viva voce evidence of a corporate official (R. v. Bantalor Trading Co. Inc. (1983), N.B.J. No. 134) and documentary evidence (P. v. Store Forest Industries Ltd., 1993 N.S.J. No. 330).

In Bantalor, supra, at paragraph 11, the New Brunswick Court of Appeal held that:

"While the prosecutor would have been wise to present documentary evidence, the truth is that the courts have always been quite flexible in what they will accept as evidence to prove incorporation. It is not as if specific powers of the corporation were being disputed where different considerations might apply. The flexibility is not confined to civil cases; it applies to criminal cases as well."

In R. v. Valiant Machine and Tool Inc. (1989), Judge Ebbs of the Provincial Court of Ontario, sitting as an appeal court, considered whether identity had been established with respect to a corporate defendant. He stated as follows:

"The cases would indicate, that were filed by the Respondent, it is possible in certain circumstances to have identity shown or at least establish prima facie by an appearance of counsel in answer to a name being called in court whether it be a corporate identity or for that matter whether it be an individual."

Judge Ebbs acknowledged that none of the cases were from the Ontario Court of Appeal so they would be persuasive rather than binding authority. He suggested that the appearance of counsel in court would carry more weight if the accused was a corporation which tend to have distinct names, or if an individual had a name that was not extremely common, that is, not something like John Smith. He referred to other evidence of identity in the case before him in addition to counsel appearing for the named corporation before ruling that the prosecution had established the identity of the defendant corporation.

In concluding the review of the case law, the court notes that it has considered only the cases put before it by counsel, and acknowledges that authorities from other jurisdictions within Canada can be persuasive rather than binding.

E. Determination of the Facts

The court finds that each of the shipments of fish referred to the commercial warehouse of the Ambassador Bridge for secondary inspection contained some live fish. In light of the videos introduced into evidence, it is fanciful to suggest otherwise. Each of the witnesses who directly observed a sample of the fish in water and testified before the court described some of the sample as displaying movement consistent with life. The court accepts the evidence of Officer Sprague and Dr. Mandrake that the live fish included grass carp on January 25th, 2012, and bighead carp on February 28th, 2012. This is consistent with the identification of the fish by species on the two Canada Customs invoices and the purchase invoice.

F. Application of the Law to the Facts

The court finds that the defendant, Yong-Sheng Zhang, was the driver of the tractor-trailer transporting the fish into Canada on both the dates in question. The court finds that on each occasion included in the load were live specimens of a species classified as invasive pursuant to the Ontario Fishery Regulations. He has led no evidence to show that he was the holder of a licence that allowed him to possess live invasive fish.

It is open to the defendant, Zhang, to establish due diligence on the balance of probabilities. There is no evidence before the court of anything he did before entering Canada that would amount to due diligence. CBSA Officers Langlois and Howe agreed that on first blush upon being taken from the compartments on the tractor-trailer, the fish appeared dead with no signs of movement. Very shortly after placing them in water-filled totes, Officer Sprague was able to determine that some of them were alive. Zhang was given an opportunity to see the live fish in the bin of water on January 25th. That should have served as an alert that a change in his practice was required.

Defence counsel suggested that icing is a way fish come to their deaths. Dr. Mandrake testified that in fact ice would extend the life of fish out of water. Officer Sprague suggested that he had heard from other colleagues that heavy icing will assist in the death of fish but had no direct experience. The court agrees with the submissions of the defence that Officers Sprague and Insley both struggled with how to determine if all of the invasive species in the shipments, thousands of pounds of carp, were dead before they were released. The defendant, Zhang, was subject to an entirely different obligation. Before he brought each of these loads containing invasive species into Canada, he needed to determine if any of the carp were alive.

The test performed by Sprague to establish that was very simple and did not require superhuman efforts. The court finds that the defendant, Zhang, cannot have taken all reasonable steps to avoid possessing live invasive fish when there is no evidence that he took any steps at all. This is particularly true of the second occasion so proximate in time to the first.

The court does not know what the defendant, Zhang, believed to be the condition of the invasive species on the dates of the shipments in question, given that no evidence was put before the court as to his beliefs. The court accepts that the carp appeared to be frozen and without signs of life immediately after being removed from the compartments where they were packed in ice, but does not infer from that, that it is reasonable to believe they were dead. The testimony from Officer Sprague and CBSA Officer Langlois that Zhang's co-driver was splashed by a fish from a sample from the load he drove on January 25th is uncontradicted. The court cannot find a reasonable and honest belief in the existence of facts that if true would render his conduct innocent in these circumstances. Any suggestion that Zhang had a reasonably mistaken belief that the fish were not alive is purely hypothetical without any evidentiary foundation.

The defendant, Zhang, has failed to establish either of the statutory defences available to him pursuant to section 78.6 of the Fisheries Act on the balance of probabilities.

In regards to the issue of corporate identity, there were no corporate registration documents for the court to consider. Counsel for the defendant, Alltheway Trucking Inc., participated in these proceedings. The Canada Customs invoices for each shipment indicated that transportation was provided by Alltheway Trucking with a unique PARS code but no address. A logo on the truck transporting the fish was in the name of "We Go Alltheway Trucking Inc.," but there was no evidence who the licence plate or CVOR certificate was attached to.

Given the totality of the evidence including the presence of counsel and the distinct quality of the name Alltheway Trucking, and in the absence of evidence to the contrary, the court finds that the prosecution has established the corporate identity of the defendant, Alltheway Trucking Inc., beyond a reasonable doubt.

The court finds that Alltheway Trucking Inc. was responsible for the transportation of two loads of invasive species of Asian carp into Canada. Each of the two loads contained live invasive fish. There is no evidence of lack of knowledge or consent of the defendant, Alltheway Trucking Inc., to the actions of Zhang as driver of the two shipments, and it is, therefore, deemed responsible pursuant to section 78.3 of the Fisheries Act.

Verdict

The court finds that the defendants, Yong-Sheng Zhang and Alltheway Trucking Inc., are guilty of both counts.

The court wishes to thank all counsel involved for their courtesy, professionalism, and assistance.

Sentencing Adjournment

Following the verdict, the court adjourned sentencing to October 2, 2013, at 9:30 a.m. in Courtroom Number 9 to allow counsel to prepare sentencing submissions. The Crown indicated it was ready to proceed with sentencing on the date of judgment, but defence counsel required additional time. A Cantonese interpreter was arranged for the defendant, Yong-Sheng Zhang.

Released: September 16, 2013

Justice of the Peace M. Ryan-Brode

Certificate of Transcript

I, Eileen O'Moore, certify that this document is a true and accurate transcript of the recording of R. v. Yong-Sheng Zhang and Alltheway Trucking, in the Ontario Court of Justice, held at 200 Chatham St. East, Windsor, Ontario, taken from Recording Number DRD-0811-PC#7-20130916-091509, which was certified in Form 1.

Transcript Ordered: September 18, 2013

Transcript Completed: November 12, 2013

Ordering Party Notified: November 12, 2013