R. v. Roman

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] 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.