R. v. Roman, [1989] 1 S.C.R. 230

Manuel Lavadores Roman and Juan Francisco Alonso Appellants

v.

Her Majesty The Queen Respondent

indexed as: r. v. roman

File No.: 20627.

1989: January 31; 1989: February 23.

Present: Dickson C.J. and McIntyre, Lamer, Wilson, La Forest, L'Heureux-Dubé and Sopinka JJ.

on appeal from the court of appeal for newfoundland

Courts -- Appellate court jurisdiction -- Crown appeal -- Jurisdiction of Court of Appeal to interfere in a judgment below restricted to where trial judge found to have erred on a question of law alone -- No error at trial involving a question of law alone -- Acquittals restored -- Criminal Code, R.S.C. 1970, c. C-34, s. 605(1)(a).

Appellants, masters of two Spanish fishing vessels, were charged with illegally entering Canadian fisheries waters on June 5 and 18, 1985. Both were also charged with illegally fishing within these waters on the first occasion and the appellant Roman was charged with wilful obstruction of a fisheries protection officer on the second. The charges proceeded by way of indictment in the Newfoundland Provincial Court and were dismissed. The Court of Appeal allowed the Crown's appeal, set aside the acquittals and entered convictions on all charges.

Held: The appeal should be allowed.

Cases Cited

Applied: Schuldt v. The Queen, 1985 CanLII 20 (SCC), [1985] 2 S.C.R. 592.

Statutes and Regulations Cited

Coastal Fisheries Protection Regulations, C.R.C. 1978, c. 413, s. 15(1) [rep. & subs. SOR/81-193; rep. & subs. SOR/85-527], (2).

Criminal Code, R.S.C. 1970, c. C-34, s. 605(1)(a).

APPEAL from a judgment of the Newfoundland Court of Appeal (1987), 1987 CanLII 119 (NL CA), 66 Nfld. & P.E.I.R. 319, 204 A.P.R. 319, allowing the Crown's appeal from the appellants' acquittals on charges of illegally entering Canadian fisheries waters, illegally fishing within these waters and obstructing a fisheries protection officer. Appeal allowed.

John R. Sinnott, for the appellants.

William H. Corbett, Q.C., for the respondent.

//The Court//

The following is the judgment delivered by

THE COURT -- With respect to the charges relative to the June 5, 1985 events, the trial judge had a reasonable doubt as to whether the accused had or had not entered the Canadian fishing zone. The disposition of the appeal in those charges is governed by this Court's decision in Schuldt v. The Queen, 1985 CanLII 20 (SCC), [1985] 2 S.C.R. 592. On a Crown appeal (s. 605(1)(a) of the Criminal Code, R.S.C. 1970, c. C-34), the Court of Appeal will have jurisdiction to interfere with the judgment below only if it finds that the trial court erred "on a question of law alone". The Crown has not satisfied us that it should have succeeded on any ground that it raised in the Court of Appeal involving a question of law alone. The appeal as regards those charges is accordingly allowed, the convictions entered by the Court of Appeal are quashed, and the acquittals entered by the trial judge are restored.

As regards the charges relating to the June 18 events, there is evidence and there are findings of fact made by the trial judge that bring the accused within s. 15(1) and (2) of the Coastal Fisheries Protection Regulations, C.R.C. 1978, c. 413. Leaving those findings of fact undisturbed, we find that the acquittal entered by the trial judge would not have raised an error of law alone had he rested his acquittal on that regulation. We accordingly allow the appeal with respect to those June 18 charges, quash the conviction and restore the acquittals entered by the trial judge.

With regard to the charge of wilfully obstructing a Fisheries Protection Officer, we agree with the trial judge that the conduct of the appellant Roman did not constitute obstruction. Furthermore, the conclusion of the trial judge must be taken to have negatived the existence of the intent to obstruct. This is a finding of fact which cannot be reviewed on an appeal by the Crown. We accordingly allow the appeal with respect to the charge of wilful obstruction against the appellant Roman, quash the conviction on that charge and restore the acquittal entered by the trial judge.

Since the constitutional issue was not considered in the courts below and the case was argued on the agreed basis that the offense was one of strict liability and not absolute liability, this Court will not deal with these issues.

Appeal allowed.

Solicitors for the appellants: Lewis, Sinnott & Heneghan, St. John's.

Solicitor for the respondent: Frank Iacobucci, Ottawa.