R v Boudreau, 2010 NSSC 317

This case was heard in the Nova Scotia Supreme Court and was an appeal of the decision in R. v. Boudreau, 2009 NSPC 45.

The respondent, Gordon Andrew Boudreau, had been charged under section 7 of the Aboriginal Communal Fishing Licences Regulations with fishing in a closed area. Mr. Boudreau was also charged under subsection 14(1)(b) of the Atlantic Fishery Regulations with unauthorized fishing for snow crab and possession of snow crab. All offences amounted to violations of section 78 of the Fisheries Act. At trial, the case had been dismissed on all counts. The Aboriginal Communal Fishing Licences Regulations offence required the Crown to prove that the defendant was fishing “under the authority of a communal license”, which could not be proven at trial. For the Atlantic Fishery Regulations offence, Mr. Boudreau had been authorized to fish under subsection 14(2)(d) of the same Aboriginal Communal Fishing Licence Regulations.

On appeal, the issue before the Court was whether, if Mr. Boudreau violated the Aboriginal Communal Fishing Regulations, he could be found guilty of the offence in question under the Atlantic Fishery Regulations, even if he did not violate the latter, as both sets of regulations fell under the Fisheries Act. The Government of Canada argued that the fishing authorization Mr. Boudreau had under subsection 14(2)(d) of Atlantic Fishery Regulations should be ignored to account for the “legislative intent” of the Aboriginal Communal Fishing Licences Regulations.

Mr. Boudreau was found not guilty under the Atlantic Fishery Regulations, even though his actions violated section 7 of the Aboriginal Communal Fishing Licence Regulations, because he did not violate the Atlantic Fishery Regulations under which he was charged. The Crown had charged him under the wrong set of regulations, and the Court found that Mr. Boudreau could not be convicted under the circumstances.

View the Decision on CanLII: www.canlii.org/en/ns/nssc/doc/2010/2010nssc317/2010nssc317.html

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