It remains to be seen whether or not revamped Marine Mammal Regulations, brought into force this past summer, clarify what has to be proved to prosecute for alleged disturbance of whales.
It was certainly not clear prior to the changes, as noted in a recently-published August judgment of the Provincial Court of Newfoundland and Labrador in R. v. Reddick. The regulation’s prohibition was simply “unlawfully disturb a marine mammal”.
A tour boat captain was charged with having disturbed a humpback whale contrary to the Fisheries Act’s Marine Mammal Regulations. The Court acquitted on reasonable doubt, noting that the regulations’ (then-)prohibition against disturbing marine mammals lacked any kind of definition of how to assess whether or not the mammal had been “disturbed”.
There was mixed and (the Court found) less than entirely reliable or consistent testimony from persons on other boats in the vicinity that the tour boat had been in very close proximity to the whale, and manoeuvering constantly so as to maintain that proximity. Witnesses said the whale was changing direction and breathing frequently, which was said to be a sign of distress.
The Court was not able to determine, despite the testimony, and video taken by news crew, just how close the tour boat came to the whale. There were indications that the tour boat had come very close to another boat in an effort to get closer to the whale, but the point was not whether the two boats were acting improperly toward each other, but rather whether the tour boat disturbed the whale.
The Court equally found that it could not interpret whether directional changes and frequent respirations, etc., indicated disturbance so far as the whale was concerned. The Court declined to follow other cases which interpreted “disturb” as “tending to disturb”; actual disturbance had to be proved. In the final result, there was at least reasonable doubt and the Court acquitted.
The end of the trial overlapped with the coming into force of the new regulations in late June 2018. “Disturb” is now defined in greater detail as including approaching to (or to attempt to) feed the mammal, swim or interact with it, move it or entice or cause it to move, separate it from its group or trap it between vessel/shore or between vessels, etc. There are also specified seasonal approach distances.