"Dave, while publicly displaying this material you,ve lacked to mention the fact that this court rulling sets presedence for future court cases and applies all individuals that fall under that same exemption. Maybe this is why no enforcment officer is jumping at the oportunity to charge a guide on a regulation that was made, from what I feel, behind closed doors. Your lack to include this important fact leads me to believe that you trying to sell the Idea that only Dave Murphy is leagle and anybody else is indeed comitting an ofence. Are all others guides guilty untill prooven inocent in a court of law? Perhaps this is just the way you've comes across to me."
I'll answer the above first and then we'll move on.
First, the court ruling and the reasons given could be used as a "precedent" in any case relative to the horsepower limitation on the system, which is the law. That's a given and I didn't think I needed to point that out. And I'm not trying to sell anything to anybody other than expressing my opinion based on some intensive study and research a few years back.
The precedent, however, applies only to the circumstances surrounding Dave. If you read the reasons for the judgement given by Judge Joe you cannot escape the fact that his rulings apply to the one individual he was ruling on, Dave Murphy. He did not rule on any other boat user on the sytem and indeed, I seriously doubt any other boat user on the system can claim what Dave did and have it be true.
The Judge also made a very egregious ruling which I think would be easily overturned upon appeal but at the time the Prosecuter wasn't aware of all the facts and didn't bother to appeal it.
Now, to clear that up for you and also to probably answer your Gold River oriented question, here are the three exemptions allowed in the case of both a horsepower limitation and a complete powerboat ban, ala the Gold.
Note: These may not be word-perfect right because I'm doing this off the top of my head, but they are accurate in their meaning.
1...If you live on the waterway and can only get to and from your home via powerboat then you are exempt.
2...If you hold a Provincial Fishing Permit and make your living from fishing then you are exempt.
3...Any bonafide Search and Rescue or government sanctioned research is also exempt.
That's it. Those are the three exemptions and Dave went for #2, for obvious reasons, i.e. he's not exempt under #1 or #3. Neither is anyone else on the SSS or the Gold.
Note the use of the words Provincial Fishing Permit and remember this is a Federal law. The exemptions given were given to cover all the exigencies that may exist anywhere in the country.
There are Provincially managed commercial fisheries in a couple of Provinces, mostly Manitoba and Ontario, wherein the participants have what is called a Provincial Fishing Permit and make their living from fishing.
Now here's where Judge Joe screwed up and where the Prosecutor missed the boat too.
When the Judge was told that there is nothing in BC that is called a Provincial Fishing Permit by the Prosecutor, the Defense claimed that Dave had a valid BC Fishing License and that should be the same thing. The Judge, clearly not grasping the intent behind the wording of that exemption, allowed an ordinary BC Fishing License to sustitute for something that doesn't exist in BC......and the reason it doesn't exist is because there are no Provincially managed commercial fisheries in BC that would require a Provincial Fishing Permit. Ergo, nobody in BC could claim that as an exemption.....until the Judge made that ruling.
Now, it appears, any of the roughly 300,000 or so people who have an ordinary BC fishing license are half exempt already.
That was not and is not the intent of the exemption.
The intent of that exemption is to allow the very few commercial fishermen in the small Provincial fisheries to use whatever boats and/or horsepower they need to do their job. Their job is catching and selling fish to make their living.
Note the second half of the exemption says, "and make their living from fishing."
IMHO a "guide" does not make his living from fishing but rather from guiding sports anglers who are fishing recreationally, not commercially.
Judge Joe ruled, after testimony regarding it, that because Dave kills the odd hatchery fish and eats it, the that fish is providing part of his sustencance or his "living".
Pretty loose and favorable rulings for Dave in both cases but the clincher is the one that basically outlaws everyone else, and that is because Dave testified he had never done anything else in his life since age 13 when he first started guiding professionally using Marilyns license (he was the Assistant Guide) that he knew no other way of making a living etc. etc. and the Judge factored that into his decision. You may have been in the court when the ruling came down but until you carefully read through the reasons for judgement you don't know why the ruling came out the way it did.
The Prosecutor botched a couple of things and the Judge made at least two incorrect decisions.
In the end it appears there is little appetite to charge anyone on the SSS system and personally I couldn't care less, that's why I don't think you have anything to worry about.....over there.
Moving on to this now......
"It maybe news to you but I and my guests gave statements to Gold River R.C.M.P. I've also talked with Campbell River crown council member Tom Bishop at that time and they have chosenF not to press charges. Now with that being said can you please give me your stand point on my legality in this situation? Am I leagle or not.
I ask you Dave, please include these said facts if you are to discuss this matter on this or any other public forum in the future."
Not news to me at all as I also talked with Mr. Bishop at length and gave him a comprehensive analysis of the Dave Murphy case along with where the Judge IMHO erred.
He explained to me that a case such as operating a powerboat illegaly on the Gold doesn't carry much weight and that as he was then the contract Lawyer prosecuting Federal cases in Campbell River he had to weigh out the importance of the infraction vis a vis how much attention he would put to it. At that time he didn't think he was into prosecuting anyone unless it became a problem and lots of noise was made about it.
If you are asking me if you are legal or not regarding operating a powerboat on the Gold I'd say you are not legal. And, given the three exemptions under which you would be legal you don't qualify under any of them, nor does anyone else.
I heard you and maybe Matt G. were taking pictures of any stray hatchery steelies you caught in the Gold to use in any future case. That true??
Anyway, to sum up, I don't care what happens on the SSS system regarding the use of ppowerboats with more than 9.9 HP but I do care about people breaking the law and using powerboats on the Gold.
And I can arrange for lots of noise if need be.
Take care.
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