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Dispute between Newfoundland and Labrador at-sea observer, fisherman goes to court

Crab pots ready for the fishing season in 2017. -File photo
Crab pots ready for the fishing season in 2017. -File photo

West coast crab harvester acquitted on charge of refusing to allow observer to board his vessel

Frustrations within the inshore fishery do not always play out in public protests or in front of the media — some disputes take place on the wharf and, when serious enough, can end up in court.

A recent case out of provincial court in Corner Brook involved a dispute on the wharf between an inshore fisherman and a fisheries observer.

The fisherman, Kenneth MacDonald, was accused of failing to comply with conditions of his fishing licence, in that he refused to allow designated at-sea observer Thomas Gavin onboard his vessel last year for a fishing trip for snow crab.

Judge Wayne Gorman acquitted MacDonald in a decision handed down April 3.

Gorman wrote that “the overall evidence presented leads me to conclude that Mr. MacDonald probably reacted negatively to Mr. Gavin’s request to go on board his vessel and probably had no intention of allowing Mr. Gavin to do so. However, the overall evidence is not sufficient to prove beyond a reasonable doubt that Mr. MacDonald failed to permit Mr. Gavin to board his vessel or that Mr. MacDonald failed to comply with any direction from Mr. Gavin.”

The facts of the case state that MacDonald’s 2017 snow crab fishing licence required him to permit an at-sea observer on board his vessel when fishing for snow crab.

Gavin, an at-sea observer employed by Seawatch, testified during the trial on March 29 of this year that on Friday, May 26, 2017, he spoke to MacDonald near his fishing shed at Frenchman’s Cove in the Bay of Islands.

Gavin said MacDonald was “ignorant and arrogant” when he suggested he accompany MacDonald on his next snow crab fishing trip. Gavin testified that MacDonald said several times in a raised voice that he “was not taking an observer” onboard his vessel.

Gavin said MacDonald did indicate he would be going crab fishing the upcoming Monday. Gavin said he told MacDonald that he would call him Sunday to arrange a time to go on board his vessel on Monday as an observer. According to Gavin, MacDonald indicated that if Gavin called, he would not answer the phone.

Gavin also said MacDonald wanted him to sign a “document” before going on board his vessel, and Gavin indicated that he did not know what type of document MacDonald was referring to.

In response at trial, MacDonald said that when he spoke to Gavin on Friday, May 26, 2017, Gavin indicated he wanted to arrange a time when he could go on board MacDonald’s vessel as an observer, and did not say “next time.”

MacDonald testified that he told Gavin he intended to check his crab pots on the following Monday or Tuesday, and is aware he had to allow an observer on board when requested and that he had no basis to refuse such a request.

MacDonald testified that he asked Gavin to sign a “waiver.” He denied saying he would not allow Gavin on board if he refused to sign the waiver. MacDonald indicated he had no insurance on his vessel and that is why he wanted a waiver signed.

MacDonald also said he told Gavin to call him on Sunday before 7 p.m. because he turns his telephone off at 7 p.m. each day.

Evidence before the court indicated that on Sunday, May 28, 2017, MacDonald steamed to the fishing grounds and retrieved his crab pots and the crab catch. MacDonald indicated that if Gavin had called him on Saturday evening he would have arranged for him to go on board his vessel the next morning.

The Crown prosecutor in the case submitted that MacDonald’s evidence was “self-serving” and unbelievable, and that Gavin specifically requested to be allowed on board MacDonald’s vessel the “next time” he went fishing for snow crab and that MacDonald made it clear he was not going to allow him on board.

The defence lawyer argued that Gavin was not refused permission to go on board MacDonald’s vessel, but that MacDonald asked Gavin to call him to arrange a time to come on board the vessel, but Gavin did not contact him.

In his analysis, Gorman noted MacDonald testified in a “very clear, direct and calm fashion.

“However, I found his evidence in relation to requesting that Mr. Gavin sign a waiver and that he turned his telephone off as early as 7 p.m., both peculiar and unbelievable,” Gorman stated. “I am unable to accept all of Mr. MacDonald’s evidence as being accurate or reliable.”

Gorman said, in contrast, Gavin described a hostile and combative encounter in which MacDonald reacted irrationally to a simple and usual request.

“It is difficult from the evidence presented to determine what would have caused Mr. MacDonald to react in such a fashion to such a request,” Gorman said. “Mr. MacDonald had received this type of request before and he knew that compliance was mandatory. It makes no logical sense for Mr. MacDonald to react in the manner described by Mr. Gavin. Of course, the Crown need only prove that Mr. MacDonald failed to comply with his licence requirements. It does not have to prove why.”

Gorman stated that Gavin was certain he used the words “next time” when requesting to go on board MacDonald’s vessel. However, the judge noted, the conversation took place nearly a year before and according to Gavin it was heated from the beginning.

“I doubt that Mr. Gavin can recall the details of his conversation with Mr. MacDonald as clearly and precisely as he suggests,” Gorman said.

“The totality of the evidence leaves me with a reasonable doubt as to whether Mr. MacDonald committed the (wrongful act) with which he is charged. This must lead to an acquittal being entered.”

glen.whiffen@thetelegram.com

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