Court Information

Ontario Court of Justice

Date: June 13, 2018

Court File No.: Cobourg, Northumberland County - 3360-999-17-0303-01/02

Parties

Between:

Her Majesty the Queen

— And —

Ruslan Mandeleew and Michael Korin

Before: Justice of the Peace M. Coopersmith

Heard: April 12, 2018

Reasons for Judgment Released: June 13, 2018

Counsel

For the Prosecution: C. Gruner

For the Defendants: Ruslan Mandeleew and Michael Korin (on their own behalf)

Judgment

Justice of the Peace Coopersmith:

I. Charges

[1] On September 16, 2017, at the Ganaraska River, in the Town of Port Hope in Northumberland County, both Ruslan Mandeleew and Michael Korin were charged with:

"fishing with a hook so as to pierce or hook a fish in any part of the body other than the mouth, contrary to s.9(1)(a) of the Ontario Fishing Regulations, 2007, made pursuant to the Fisheries Act, R.S.C. 1986, c. F-14, as amended".

[2] As well, Mr. Mandeleew was charged with:

"sport fishing by a means other than by angling for a species of fish not set out in column 1 of Part 1, Schedule 6, to wit: pacific salmon, contrary to s.35(2)(e) of Ontario Fishing Regulation, 2007, made pursuant to the Fisheries Act, R.S.C. 1985, c. F-14, as amended".

[3] The trial took place on April 12, 2018. Conservation and Fisheries Officer Jay Downey, from the Ministry of Natural Resources and Forestry, and Port Hope Police Officer Stephen Rines provided evidence for the prosecution. Both defendants gave evidence.

[4] For the reasons that follow, I am satisfied that Mr. Mandeleew and Mr. Korin are guilty of the charges against them.

II. Issues

[5] The charges in this proceeding provide the basis for the issues, as follows:

1. On September 16, 2017, were both Ruslan Mandeleew and Michael Korin fishing with a hook so as to pierce or hook a fish in any part of the body other than the mouth, contrary to s.9(1)(a) of the Ontario Fishing Regulations, 2007, made pursuant to the Canada Fisheries Act?

2. On September 16, 2017, was Ruslan Mandeleew fishing by a means other than by angling for a species of fish not set out in column 1 of Part 1, Schedule 6, to wit: pacific salmon, contrary to s.35(2)(e) of Ontario Fishing Regulation, 2007, made pursuant to the Canada Fisheries Act?

III. Evidence

(a) Evidence of Conservation Officer Jay Downey

[6] Conservation and Fisheries Officer Jay Downey works for the Ministry of Natural Resources and Forestry. He started his shift on September 15, 2017, with a focus on patrols within the Town of Port Hope in Northumberland County. He was working with Port Hope Police Officer Rines. It was not raining and visibility was clear.

[7] At 12:55 a.m. on September 16, 2017, he observed some lights in the area along the Ganaraska River in the Town of Port Hope near Old Cavan Road, just south of the bridge at Jocelyn Street. He and Officer Rines walked closer along the riverbank. Officer Downey was not sure of the exact distance, but began making observations from about thirty or forty feet away using binoculars. He stood close to the cedar trees, behind some bushes and saw two men engaged in some sort of fishing activity.

[8] At this time of the year Pacific salmon are spawning in the Ganaraska River. This section of the river consisted of shallow riffle areas where the salmon can be seen quite clearly. Many times Officer Downey observed the backs of the salmon sticking out of the shallow waters, as they splashed their way upstream. The water was fairly clear and mostly shallow – no deeper than knee-high, except for some pool areas where the water was deeper and where the salmon would rest during their swim upstream. The river current was moderate and the rocky bottom might have been somewhat slippery.

[9] At different times, both men who were fishing were observed using flashlights or headlamps, illuminating the water in front of them. As a light turned on, Officer Downey would observe the activity of the two men. They were never out of the officer's view. Although Officer Downey could plainly see the equipment and both men's hands in front of them, he often used his binoculars for detailed observations.

[10] One of the men, who was later identified by Officer Downey from a photo Ontario driver's licence as Michael Korin, was standing in the water, using a typical, somewhat heavier, spin-style rod and reel. There appeared to be a large weight at or towards the end of the line. The first of two large hooks was a short distance up from the weight and a second large hook was a short distance further up the line. There was no bait observed on these hooks, nor was there any floating equipment or bobbers. The officer saw no attempts by this defendant to attach bait to the hooks. Mr. Korin was using a bright headlamp and was walking up and down a short section of river. He appeared to be scanning, using the bright light as he looked from side to side in the water.

[11] Mr. Korin was not casting or retrieving into any of the pools in the river, which is a place that an angler might attempt to catch the salmon by casting bait or lures. Instead, he would cast near a salmon as it swam by in the shallow waters and then immediately use a sharp jerking or sweeping motion. There was no bait left resting in the water for a period of time to entice a fish to bite it. Instead, immediately sweeping or jerking the heavy rod after casting with the weighted line, would have the effect of pulling the hooks towards the body of the fish. Officer Downey clearly observed Mr. Korin hook one salmon in the body using this technique. After playing the fish for a short time, the salmon was able to get off of the hook.

[12] It was the officer's testimony that any attempt to hook the fish in the body is an illegal method and an unethical practice. Adding a weight to the line would assist in more accurately casting towards the intended target and would help ensure the hooks dropped down and, with the line essentially across the back of the fish and perpendicular to it as it swam upstream, this would ensure the hooks came close to or directly across the body of the fish as the line was jerked or pulled. This is consistent with a technique described as "snagging" and what Officer Downey observed Mr. Korin use continuously, off and on depending on whether a salmon was present in the shallow waters, over almost an hour that Officer Downey was observing.

[13] Officer Downey described a typical technique that an angler would use in the recreational sport of fishing. This was to place bait in the water column ahead or upstream of the fish and drift the line and baited hook using a bobber and light tackle, such as a light-weight, small hook. The light weight would allow the bait to get below the surface of the water, but in the current, not reach the bottom of the river. The float would help keep the bait suspended as it floated towards the fish. Given that the fish are almost always facing upstream, the bait would be presented in front of the face of the fish and the fish could choose to bite or not bite.

[14] There is no regulation about how long one needs to wait after casting a line, before pulling out the rod, so to preclude making any snap judgment about their fishing technique, Officer Downey took his time and observed the defendants for about an hour. He satisfied himself of the technique they used as he observed the repeated manner in which they fished.

[15] Officer Downey observed the second man, later identified by a photo Ontario driver's licence as Ruslan Mandeleew, standing in the water and holding a large landing net. He did not have a fishing rod at this time. However, later he did exit the water and walk to a vehicle in the parking area to retrieve a rod and reel.

[16] When Mr. Mandeleew was in the water holding the large net, he used a headlamp to illuminate the water in front of him. He would use a scooping technique to follow and chase fish with the net, attempting to scoop them with the net. Although a landing net can be used to help land a fish that had been hooked, at no time did Mr. Mandeleew use his net for that purpose.

[17] After a short period of time, Mr. Mandeleew left the river and walked up to a car. He appeared to be threading a line, preparing a fishing rod. After about ten minutes, he returned to the water with the fishing equipment. He had a weight and several hooks fastened to the line. At no time did Officer Downey observe this defendant attempt to attach bait to any of the hooks. Mr. Mandeleew would cast his line beyond the fish and use a dragging or sweeping motion as the tackle swept over the back of the fish. He repeated this technique multiple times, but failed in his efforts to snag the fish.

[18] At 1:55 a.m., after observing for almost an hour, Officer Downey and Officer Rines approached the two defendants and identified themselves. They immediately seized the fishing rods and landing net. Once the defendants were out of the water, they seized the defendants' headlamps and waders. There was no bait on any of the hooks, which was consistent with what the officer had viewed using binoculars and plain vision when the defendants were fishing. Mr. Korin showed Officer Downey some bait he had in his pocket. However, Officer Downey never observed either defendant ever use bait.

[19] Officer Downey was clear that there was nothing illegal about the fishing equipment itself. The issue was the technique that the men used to fish with their tackle.

(b) Evidence of Police Officer Stephen Rines

[20] Officer Rines is with the Port Hope Police Services. He began his patrol with Conservation Officer Downey in the vicinity of Old Caven Road on the Ganaraska River in Northumberland County on September 15, 2017 and continued into the morning of September 16, 2017. At approximately 12:35 a.m., he observed a vehicle parked along Old Cavan Road and saw the headlamps of two people fishing in the river. He and Officer Downey approached on foot to about twenty or thirty yards, in order to get a closer look and observed two men in the river wearing chest waders. The river was shallow at this location. The river bottom was rocky and somewhat slippery. One of the men had a fishing rod, while the other had a large dip-style net. It was dark, with ambient light from street lights on Cavan Street and Jocelyn Street. The headlamps used by the two men illuminated their gear and Officer Rines could see and hear the fish. Pacific salmon ran in the river at this time of the year.

[21] Officer Rines identified the person with the rod as Michael Korin. The defendant used his headlamp to locate fish. Mr. Korin used a large fishing rod with a sizeable reel. He used a heavily weighted line, with two relatively large hooks spaced a short distance apart and above the weight, to cast beyond the fish and retrieve the line either in a very fast reeling fashion or by sweeping the line quickly through the water. No bait was seen on the hooks, although Officer Rines did not have binoculars to get a closer look. At one point, the officer observed Mr. Korin hook a fish in the side. As a fisherman himself, Officer Rines explained that fish hooked by the mouth make certain movements and ones hooked in other parts of the body move in a clumsier and more erratic fashion. It was clear to Officer Rines, based on the way the fish was moving in the water, that Mr. Korin had hooked the fish in the body and not in the mouth.

[22] The other man, identified later as Ruslan Mandeleew, had no fishing pole, but was carrying a large dip-style net. On occasion, he would dip the net, attempting to scoop the fish out of the river. On another occasion, Mr. Korin travelled downriver, located a fish and tried to herd it upriver where Mr. Mandeleew unsuccessfully attempted to dip his net at the fish. At one point, Mr. Mandeleew left the river for about twenty minutes and retrieved a fishing rod from the motor vehicle. It was tied with two relatively large hooks and a heavier weight and no bait was seen on the hooks. Upon his return to the river, he would cast or toss the line beyond the fish and then retrieve it quickly by either sweeping or reeling.

[23] Officer Rines testified that using a lead weight was an uncommon presentation for salmon fishing in the fast-moving section of the river. Generally, floats or fishing spoons are used and a small baited hook is suspended underneath a bobber-type object. The line is cast such that the current carries it down the river. Once it has reached its terminal destination or the length of the line, the fisherman usually picks it up and puts it back at the start. It was not the defendants' hooks or weights themselves that were illegal, but rather the manner in which they were fishing, which is called snagging and which is most effectively done with heavier weights and larger hooks.

(c) Evidence of the Defendant, Michael Korin

[24] Prior to their fishing trip, Mr. Korin and Mr. Mandeleew stopped at a Canadian Tire store and purchased some equipment for salmon fishing. Based on recommendations from Canadian Tire associates, they purchased fishing rods, tackle boxes, the hook, weights and the bait. The defendants looked at the fishing regulations – where they were allowed to fish, the method of fishing, the number of fish they could catch and what they could catch.

[25] When the defendants entered the water, they realized the bottom was rocky and very slippery. They decided that one of them would hold the rod and the other would hold the landing net in case a fish was hooked.

[26] Mr. Korin expressed his lack of experience in salmon fishing in a river environment. He was not familiar with the most common techniques that the officers had described. He used a weight and two hooks, spaced apart from each other. When he cast the line, the hooks would be higher than the weight, with one hook falling about half the water depth and the other about one quarter depth below the surface. The weight would get stuck between the rocks, especially with the river current, making it feel as though something was pulling on the line. His first action was to jerk the rod to try to set the hook. Other times he would pull his rod just to reposition the hooks.

[27] Mr. Korin used his headlight to illuminate the area around him, but would turn it off frequently to preserve the battery life. Mr. Korin found it very difficult to see the salmon. He was not chasing the salmon, but when he did see a fish, he would approach and it would run away from him. Mr. Korin periodically put bait on the hooks, as it would get washed off frequently.

[28] He testified that at no time did he try to snag the fish as described by the officers, nor did he throw the line over the fish. Instead, he always would try to cast the line in front of the fish so that the bait was in front, not behind it. His intention was to catch the fish properly, in a legal way. He and Mr. Mandeleew fish together a few times a year and he has never seen Mr. Mandeleew do anything illegal in trying to catch the fish in an illegal way.

(d) Evidence of the Defendant, Ruslan Mandeleew

[29] Mr. Mandeleew testified that he and Mr. Korin purchased a few items as recommended by the staff in the Canadian Tire store. When he arrived at the river, he entered the water and felt the slippery bottom. Consequently, the defendants agreed it would be safer for one of them to fish with a fishing rod and the other to hold the net to help in case a fish was caught. Mr. Mandeleew often used the landing net for support by positioning it against the bottom of the river. He was not attempting to catch fish by doing that. He explained that he could not see the fish, as he has poor eyesight (minus 4) and did not wear his glasses for fear of losing them in the river.

[30] After some time had passed and Mr. Korin had not caught any fish, Mr. Mandeleew went to the car and prepared his own fishing gear, spending at least 30 minutes tying the fishing line. Shortly after returning into the water, without an opportunity to bait the hooks or cast a line, the officers called to him and Mr. Korin.

[31] Mr. Mandeleew had no intention or plans to snag a fish or catch it in an illegal way. He did not hook or land fish using his rod or the landing net. As stated by Mr. Korin, this defendant advised that they fish together a couple of times a year and before they go anywhere they always research any regulations for that area. He never saw Mr. Korin break the rules and regulations. And as a big supporter of animal rights, he had no intention of injuring any fish or animals.

IV. Submissions

(a) Crown's Submissions

[32] For the offence of fishing with a hook so as to pierce or hook a fish in any part of the body other than the mouth, contrary to s.9(1)(a) of Ontario Fishing Regulation, 2007, the prosecution submits that attempting or the action of fishing itself constitutes the offence. There is no dispute regarding the date, location, identity of the defendants or the fact that they were fishing. The Crown must show that the defendants were using a hook in a manner to hook the fish not in the mouth. The technique, itself, rather than any intent, is key to proving this offence, as it is a strict liability offence [See R. v. City of Sault Ste. Marie, [1978] 2. S.C.R. 1299]. As a quasi-criminal, public welfare offence, the mens rea or intent need not be proven. A lack of experience fishing salmon or a lack of intent to hook in the body is not, itself, a defence. If the defendants fished in a manner which would hook the salmon in the body and not in the mouth, whether they ended up doing so or not, would meet the elements of the offence, even if they were doing so because they were fishing poorly or because they were used to other types of fishing.

[33] To avoid liability, it is open to the defendants to prove, on a balance of probabilities, they took all reasonable care, considering what a reasonable person would have done in the circumstances. In these circumstances, the test would be that of a reasonable fisherperson or a person possessing a fishing licence with the knowledge, skill and ability of an informed fisherperson. The Crown submits that this defence has not been made out.

[34] The Crown reviewed the evidence of the officers. As a conservation and fishery officer with ten years of experience, the Crown submits that Officer Downey is quite able to recognize the action that constitutes snagging. And, indeed, Mr. Korin agreed that he jerked his line on a number of occasions. Officer Downey observed that the hooks were never baited and, after the officers made contact with the defendants, Officer Rines noted the hooks were bare. During the hour of observation, neither officer observed the defendants attach bait to the hooks. The bare hooks support the officers' conclusions that the defendants were snagging, rather than trying to attract the fish to bite the bait on the hooks. The use of a weight on each of the defendant's lines is not consistent with regular salmon river fishing practices where the hook would be floating, but rather is consistent with snagging and throwing the line with accuracy and then jerking hard with the line into the intended fish.

[35] The equipment used by the defendants is not illegal, but along with the observed method of fishing, it is consistent with an attempt to hook a fish in the part of the body that is not the mouth. Mr. Korin was observed by the officers to have hooked a fish and Officer Rines described its clumsy movements as inconsistent with the movement that a fish makes when hooked in the mouth.

[36] For the offence of fishing other than angling for a species of fish not set out in column 1 or Part 1, Schedule 6, contrary to s.35(2)(e) of Ontario Fishing Regulation, 2007, this section prohibits fishing for certain fish that are not listed in the chart by any means other than angling. Angling means using a line held in the hand or a rod. Salmon is not a species listed in Schedule 6 and, hence, angling with a line is the only permitted means of fishing. The officers observed Mr. Mandeleew, without a fishing rod, using a large landing net and chasing and scooping at the fish, in an attempt to catch them.

(b) Mr. Korin's Submissions

[37] Mr. Korin submits that the officers were not observing for one hour, but only periodically during that time. And during only a few moments did Officer Downey use binoculars. The officers were as far as 60 feet away from the defendants, it was complete darkness, with only light from the defendants' headlamps. Mr. Korin questions how, without binoculars, the officer could see a hook with bait about the size of a corn kernel. And because the officers did not see Mr. Korin put bait on the hook, does not mean that he was not putting the bait on the hook.

[38] Both officers described a common practice of fishing, but neither said the defendants' equipment was illegal. Mr. Korin was charged with fishing with a hook used in such a manner as to pierce or hook a fish in any part of the body other than the mouth, but he did not catch any fish and the officers are speculating about what they think might have happened under the water when a fish was hooked. It was not Mr. Korin's intention to hook the fish not by its mouth.

(c) Mr. Mandeleew's Submissions

[39] Mr. Mandeleew submits that he did not fish so as to pierce the fish in other than its mouth, as he had just returned from the car and had not yet cast his line when the officers made contact with them.

[40] There are a lot of inconsistencies in the officers' evidence – they mentioned they were beside each other the entire time, yet the distance each of them stood from the defendants was doubled (30 feet and 60 feet); the time was different; the duration and the conditions that existed were different; one officer said Mr. Mandeleew was at the car 10 minutes, the other officer said 20 minutes.

[41] He submits that he was not attempting to catch a fish with the landing net, but was using it simply as support. He could not have been running and chasing fish, as it was difficult to even walk on the slippery river rocks.

V. Relevant Legislation

[42] The following sections of the Ontario Fishery Regulations, 2007, SOR/2007-237, made under the Fisheries Act, R.S.C. 1985, c. F-14, as amended, are relevant to the issues before this Court:

9 (1) No person shall fish with

(a) a hook used in such a manner as to pierce or hook a fish in any part of the body other than the mouth;

35 (2) No person who is sport fishing by a means other than by angling shall

(e) fish for, or catch and retain, any species of fish other than the species set out in column 1 of Parts 1 and 2 of Schedule 6.

[43] Also applicable to these matters are the following definitions found in s 1(1) of this regulation:

angling means fishing with a line that is held in the hand or attached to a rod that is held in the hand or closely attended.

sport fishing means the catching of fish for non-commercial purposes.

[44] The following species of fish are set out in column 1 of Parts 1 and 2 of Schedule 6:

• Bowfin
• Common Carp
• Lake Herring
• Lake whitefish
• Rainbow Smelt
• White sucker
• Crayfish
• Baitfish

VI. Findings and Analysis

[45] I have carefully reviewed and considered all of the evidence and submissions in this matter. Below, are my findings and analysis.

(a) Strict Liability Offences

[46] In R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299, Justice Dickson writes:

I conclude, for the reasons which I have sought to express, that there are compelling grounds for the recognition of three categories of offences rather than the traditional two:

1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.

2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; 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. Mr. Justice Estey so referred to them in Hickey's case.

3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.

Offences which are criminal in the true sense fall in the first category. Public welfare offences would prima facie be in the second category. They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if such words as "wilfully," "with intent," "knowingly," or "intentionally" are contained in the statutory provision creating the offence. On the other hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act. The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations in determining whether the offence falls into the third category.

[47] I am satisfied that there was nothing illegal about the equipment the defendants used. Whether or not the defendants intended to snag a fish or catch it in an illegal manner is irrelevant, as I am satisfied, in light of R. v. Sault Ste. Marie (City), supra, that the charges against the defendants are strict liability offences and not mens rea offences.

(b) Applying R. v. W.(D.)

[48] There is no dispute that it was September 16, 2016, in the early hours of the morning. The location was the Ganaraska River, in the vicinity of Old Cavan Road, just south of the bridge at Jocelyn Street, in the Town of Port Hope in Northumberland County. The defendants have been satisfactorily identified as Ruslan Mandeleew and Michael Korin. At that time of the year, Pacific salmon run in the river. At that location, the river is fairly clear and relatively shallow, with a rocky, somewhat slippery river bed. There also are deeper pools where the salmon can rest during their swim upstream to spawn. Both Officer Downey and Officer Rines observed the two defendants for almost an hour as they fished in the river. Mr. Mandeleew and Mr. Korin were not involved in commercial fishing, but rather were sport fishing, something they do together a couple of times each year.

[49] At first, Mr. Mandeleew was using a large landing net, while Mr. Korin held a fishing rod and line, at the end of which was a weight and above the weight was a hook, followed by another hook a short distance above that. Later, Mr. Mandeleew retrieved a fishing rod with a weight and hooks tied in a fashion similar to Mr. Korin's fishing equipment. Both defendants are charged under s.9(1)(a) of the Ontario Fishing Regulation, 2007. There is nothing illegal about the equipment being used by the defendants. The issue is the manner in which such equipment was being used.

[50] The officers described the defendants' fishing techniques as consistent with 'snagging'. It is their testimony that both defendants were fishing with a hook, in such a manner as to pierce or hook the fish in any part of the body other than the mouth. Both defendants stated that was not the case. Mr. Mandeleew also denied using a landing net in his attempts to catch fish.

[51] As issues of credibility have arisen, I have considered the general guideline regarding credibility as set out by Justice Cory, writing for the majority in R. v. W.(D.), [1991] 1 S.C.R. 742. It provides:

(1) If I accept the evidence of the defendant as it is a complete denial of an essential element of the offence, I would dismiss the charges;

(2) Further, even if I did not accept the defence evidence, I would have to go on to consider whether or not it raised a reasonable doubt and, if so, again, I would dismiss the charges;

(3) It would be only if I rejected the defence evidence as there was convincing credible evidence that it was untruthful or unreliable, that I would go on to the third step in R. v. W.(D.) and consider all of the un-rejected evidence in this matter, to ensure there was evidence that I did accept that established the defendant's guilt on the charges before the Court beyond a reasonable doubt.

[52] These are applications of our basic principles that everyone is presumed innocent until their guilt has been proven beyond a reasonable doubt, that the burden rests on the prosecution throughout to prove that guilt, and that there is a very high burden to establish the defendant's guilt. I am also cognizant of the prohibition against turning this into a credibility contest between the officers and the defendants and simply accepting the evidence of the officers, thereby necessarily rejecting that of the defendants. I have given all of the evidence fair consideration.

[53] I have applied the principles in R. v. W.(D.), supra. With respect to the charge against both defendants for "fishing with a hook so as to pierce or hook a fish in any part of the body other than the mouth", I accept the evidence of the officers and reject that of the defendants for the following reasons. Both officers are trained to make observations such as the ones they made. They spent almost an hour observing the manner in which the defendants were fishing. I accept that they were not able to observe every move each of the defendants made throughout this time period; however, the officers saw the repeated actions of the defendants whenever they were observing them. Mr. Korin stated that the weight repeatedly caught in the rocks on the river bed and that is why he jerked sharply on his line. However, he did not take all reasonable care, as he failed to make any changes to his fishing gear so as to keep the tackle from getting caught, nor did he adjust the manner in which he was fishing. The defendants claim they used bait on their hooks. However, at no time did Officer Downey see any bait as he observed through his binoculars. More telling is the fact that all of the hooks on both of the defendants' lines were bare when the officers made contact with Mr. Korin and Mr. Mandeleew. Although it is circumstantial evidence, Officer Rines has described the movement of the fish that Mr. Korin did hook as that which is consistent with a fish hooked, not in the mouth, but in the body. I am giving some weight to that evidence. Although Mr. Mandeleew denies even casting his line after returning from the car, both officers observed him casting and then quickly use a reeling or sweeping motion as the line with hooks attached passed over the fish. I accept the officers' evidence, as they did not make immediate contact with the defendants right after Mr. Mandeleew returned from the car, providing him with more than sufficient time to begin his fishing using the rod and line he had tied. Both officers testified to these observations.

[54] I do find that the defendants' use of weights and bare hooks, their casting beyond the fish and immediately using a jerking, sweeping or reeling motion to cause the line with the hooks attached to pass over the body of the fish are the ingredients that are consistent with "snagging", as described by Officer Downey. The manner of fishing, and not whether any fish are caught, is what is germane to the offence both defendants are facing. There is no evidence that the defendants used due diligence or took all reasonable care so as not to pierce or hook a fish in any part of the body other than the mouth.

[55] With respect to the charge against Mr. Mandeleew, of sport fishing by a means other than by angling for a species of fish not set out in column 1 of Part 1, Schedule 6 of the Ontario fishing regulation, 2007, there is no dispute that Pacific salmon were running in the Ganaraska River on September 16, 2017. This species of fish is not listed in column 1 of Part 1, Schedule 6 of this regulation. Consequently, angling is the only acceptable means of sport fishing. Mr. Mandeleew spent a considerable amount of time using a large landing net, as he stood in the water. He carried the net with him into the water from the very beginning of his fishing activities, perhaps even prior to determining that the river bed was rocky and slippery, claiming he needed the net to steady himself on the slippery rocks on the bottom of the river. Yet at no time did I hear any evidence that Mr. Korin had any difficulties walking along the rocky bottom of the river. Both officers observed Mr. Mandeleew use the large landing net in a scooping fashion. For these reasons, I do not accept Mr. Mandeleew's description of his use of the net simply to steady himself on the slippery rocks. I accept the evidence of the officers, that this defendant was observed using a scooping motion towards the fish in an attempt to capture them in the net.

VII. Conclusion

[56] Based on the evidence that I do accept and for the reasons I have provided, I find that, in the early hours of the morning on September 16, 2017, Ruslan Mandeleew and Michael Korin were sport fishing in the Ganaraska River, in the Town of Port Hope in Northumberland County. The manner of their technique was consistent with that of fishing with a hook so as to pierce or hook a fish in any part of the body other than the mouth. I find each of them guilty of committing this offence, contrary to s.9(1)(a) of the Ontario Fishing Regulation, 2007, made under the Canada Fisheries Act.

[57] I also find that prior to retrieving a rod and reel from the car and tying a weight and hooks to the line, Ruslan Mandeleew initially used a net, in attempts to catch the Pacific salmon. Hence, he is guilty of sport fishing by a means other than by angling for a species of fish not set out in column 1 of Part 1, Schedule 6, to wit: Pacific salmon, contrary to s.35(2)(e) of the Ontario Fishing Regulation, 2007.

[58] Convictions will be registered and I will hear penalty submissions from the parties.

Released: June 13, 2018

Signed: Justice of the Peace M. Coopersmith