Due Diligence - Case Summaries
The database contains 42 case summaries relating to Due Diligence. The summaries are sorted in reverse date order with 20 summaries per page. If there are more than 20 summaries, use the navigation links at the bottom of the page.
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Offences - Due Diligence - Not necessary for captain to check accuracy of crew measurements of crabs when crabs inaccessible at bottom of live tanks.
R v. Chandler , No. 23728 Prince Rupert Registry) (B.C.S.C)
This case involved the captain of a crab fishing vessel who was charged with possession of undersize crabs. In upholding the trial judges finding of due diligence, the summary conviction appeal court distinguished two lobster cases (R. v. Cameron  N.S.J. 83 and R. v. Morrison) because unlike the lobster cases, after the initial measuring by the crew member the crabs were not accessible to be checked until they were off loaded at the end of the trip. In applying the test set out in R. v. Gulf of Georgia Towing Ltd. 10 B.C.L.R. 134 (BCCA), the court said, "in the present case, it could not be said that the consequences of possessing undersized crabs has the same consequential environmental impact as an oil spill, particularly given the ability to mitigate the possession of crags by returning the crabs to the sea when sorted by the buyers" (para 43).
Offences - Due diligence - Unlawfully releasing fish back into water
R v. Tremblett , 2007 CanLII 69301
This case involved a fishing vessel fishing with an otter trawl. Although a "fish finder" did not indicated many fish in the area and the first four trawls caught few fish, on the fifth trawl a very large number of fish were caught. An attempt was made to winch the net aboard, but it was discovered that the vessel could not take any more fish, the equipment could not complete the hoist, there was only about 12 inches of freeboard at the stern and large waves were posing a safety hazard and the net was beginning to tear. Consequently the net was released allowing the fish in the net to escape.
Upon being charged under s. 33 of the Fishery (General) Regulations with returning fish to the water without authorization to do so, the Court acquitted for the following reasons:
Based upon the definition of "fishing" set out in the case law, the fish had not yet been caught because they had not been removed from the water;
With respect to a few fish that were knocked overboard while releasing the net, given the circumstances the captain exercised due diligence; and
With respect to the failure to record a discard reported to him by a fisheries officer, but not seen by him, the accused was found to have failed to exercise due diligence.
Offences - closed area - due diligence - Def'n of "Fishing" - Proof beyond a Reasonable Doubt
R v. Biggin , 2007 CanLII 13690
This case involved a commercial crab fisher whose marked crab traps were found well within a closed area. After a useful review of the law regarding due diligence, mistake of fact, the definition of "fishing" and the onus of proof, the court rejected a due diligence defence on the following basis:
In this case, the crab pots were well within the closed area and this is an area that Mr. Biggin is very familiar with. When Mr. Biggin set his crab pots in this area, he must have known, or ought to have known, regardless of how he read or interpreted his GPS system, that he had entered into area 13. To set crab pots outside of the area described in your licence indicates a degree of carelessness or negligence on Mr. Biggin’s behalf that refutes any suggestion of having acted reasonably or diligently. Thus, Mr. Biggin has failed to establish that he acted with all due diligence or by reason of a mistake of fact. (para 41)
Offences - Due Diligence - burden of proof - s. 25(3) proof of permission to allow gear to remain in water after closure
R v. Keough , 2006 NLTD 142
This case involved a charge of fishing for crab during a closed time. The accused ran a defence based upon evidence that he had been unable to retrieve his crab traps prior to the end of the season because of bad weather. He gave evidence that he contacted someone named "Tony" at the St. John's office who advised that "they were allowed 'as in previous years' , to remove their pots from the water and could keep the crabs that were removed. Notwithstanding the fact that he disbelieved this evidence, the trial judge applied the R. v. S.(W.D.) (1994), 119 D.L.R. (4th) 464 (SCC) test and acquitted because "it's possible that it's true".
Upon summary conviction appeal, the appeal court found that the court erred in applying the R. v. S.(W.D.) to the question of whether or not the accused exercised due diligence to avoid committing the defence. Accordingly, it set aside the acquittal and entered a conviction.
Editor's note: S. 25(3) of the Fisheries Act provides that:
A fishery officer may permit fishing gear or apparatus to remain in the water . . . after the . . . close time for any period the fishery officer considers necessary to permit the removal of the gear or apparatus.
Based upon this section, if permission was was actually given to have gear remain in the water, then it could be argued that the actus reus of the offence of fishing during a closed time did not occur as the close time was effectively extended under s. 25(3). If so, the trial judge was correct in applying the W.D. test instead of the proof on a balance of probabilities under the second branch of the Saulte St. Marie test. Unfortunately the oral reasons appear to be have been rather fragmented and in any event were not produced in their entirety in the judgment.
Offences - Due Diligence - Failure to maintain proper distance from lobster traps
R v. Raymond ,  NBPC 27
This case involved a trawl vessel that commenced fishing in a area where a lobster vessel had already set a string of traps. After entangling its trawl gear in the string of lobster traps, charges were laid under s. 37(1) of the Atlantic Fishery Regulations for failing to maintain a distance of at least one-half nautical mile between the trawl vessel and a previously set lobster trap.
After an interesting review of the law relating to the due diligence defence and the overlapping nature of the mistake of fact defence, the court rejected the trawler's due diligence defence on grounds that the vessel failed to attempt to contact the Lobster vessel on either of the two radio channels which the lobster vessels were known to use.
Offences – Due Diligence Defence – By-catch of Halibut
R v. Puratich , Port Alberni Registry No. 30568(B.C. Prov. Ct.)
This case involved charges against a fisherman of landing halibut contrary to his commercial trawl licence on three different occasions. This licence provided that the fisherman could land an unlimited amount of turbot but only a set quota of other species caught as a by-catch. When these quotas are reached the vessel must stop fishing. The vessel is not allowed to catch any halibut. If caught, the halibut must be returned to the sea. Once a pre-defined limit of halibut deaths has been reached, the vessel must stop fishing.
Even though the Department of Fisheries and Oceans (“D.F.O.”) purports to have a zero tolerance for landing halibut, in actual fact D.F.O. approved a practice whereby landed halibut were donated to local charities. D.F.O. appeared to allow its individual enforcement officers to decide when the amount of landed halibut was sufficient to justify laying charges.
With respect to the defence of due diligence, the fisherman lead the following evidence:
The tally sheets from other vessels that were not charged showed overages ranging from .1% to .35%;
The accused fisherman’s overages were .2%, .3% and .1%; and
D.F.O. observers aboard the boat said that they saw no halibut go into the hold, the defendant made short tows to avoid killing any halibut that were caught; the crew were well trained and well supervised, crew were observed going down onto their bellies to retrieve halibut from the holds that had accidentally slipped in.
Although D.F.O. argued that the vessel should not go out in bad weather, the court appeared to reject this argument and dismissed the case based upon a due diligence defence.
Offences - failure to sink bait Gillnet one meter beneath Surface - Due Diligence
R v. Doody , 2005 CanLII 6039
This case involved charges against a lobster fish harvester who had a bait fishing licence to catch herring by gillnet. It was a condition of the bait licence that the head rope of the net be at lease one meter below the surface of the water so as to allow Atlantic salmon to swim over the net. After finding the net on the surface with three Atlantic salmon in it, the owner was charged. Given the evidence that these nets were sometimes tampered with, the fact that the knots shortening the buoy lines appeared to have been tied in a hurry and the credible evidence of the accused that he checked the net the night before it was found, the court ruled that a defence of due diligence had been established.
Offences - Due Diligence - Catching and retaining undersize oysters - Failing to return to water "forthwith"
R v. Gallant , 2005 PESCTD 6
This case involved an oyster fisherman who collected 7 tubs of oysters in his boat over a period of two hours and forty minutes and then moved to a more sheltered area adjacent to his oyster lease to sort the oysters and discard the undersize. Of 5,306 oysters, 4,480 were undersize. While acknowledging that under some circumstances the need to sort the oysters in a sheltered location might amount to a due diligence defence, on the facts of the case no such defence was established. After reviewing the authorities, including R.v Symmonds (1994), 138 Nfld & P.E.I.R. 109 and s. 33 of the Fishery (General) Regulations, the court ruled that since the accused failed to return the oysters to the water "forthwith," he was guilty of retaining undersize oysters.
Offences - Due Diligence - Processing at Sea
R v. Croft , 2004 NLSCTD 46
Not yet available.
Offences - Exceeding Permitted Count of Scallop Meat - Due Diligence - Mistake of Fact - Search and Seizure - second search after arrival at home port
R v. Kinghorne , 2003 NBQB 341
This case involved a charge of having on board a fishing vessel scallops having more than the permitted average count of 45 meats per 500 grams. At trial a number of defences were raised including (1) illegal search, (2) due diligence, and (3) mistake of fact.
With respect to the due diligence and mistake of fact defences, the accused unsuccessfully argued at trial that he was duly diligent by employing the "milk can" method of measurement recommended by a local fisheries officer. After a lengthy review of the jurisprudence and the facts, the summary conviction appeal court upheld the trial court's rejection of the due diligence defence. In doing so, it note that the accused did not produce the milk cans at trial for inspection by the court. In addition, there was no evidence of the qualifications of the designer of the system, there was no evidence that the system put in place by the accused was the same as the system recommended, and there was no evidence of any satisfactory measures taken to verify the accuracy of the system.
Offences – Due diligence defence (Fishing in Excess of quota) - Improper delegation defence
R v. Cox, 2003 NLSCTD 56
This was a summary conviction appeal of a case that involved a charge against the owner of a ground fish vessel for continuing to fish for a species (cod, plaice and halibut) after his allowable by-catch had been exceeded.
Upon appeal, the following issues were raised:
Correct interpretation the licence condition regarding when one must stop fishing because of incidental catch;
Due diligence; and
Proper delegation of authority to attach terms and conditions to fishing licences.
With respect to the first issue, the court rejected the accused’s interpretation, which would have allowed him to keep fishing “to see whether the by-catch levels could be offset by higher catches of the directed species”.
The court also rejected both a due diligence and a mistake of fact defence. In rejecting the mistake of fact defence, it applied R. v. Tavares (1996) 144 Nfld. & P.I.I.R. 154 (Nfld. C.A.) for the proposition that for a strict liability offence a mistake of fact must reasonable based upon an objective standard, not the subjective standard of the accused.
With respect to delegation, the accused argued that the delegation of the power to impose terms and conditions on licences pursuant to s. 22(1) of the Fishery (General) Regulations was improper because such a power was a legislative act. After reviewing some conflicting authorities, the court adopted a functional and pragmatic approach to hold that such powers could be delegated.
Editor’s note: For an interesting discussion of the issues surrounding the delegation of licence conditions see the Sixth Report (Report No. 71) of the Standing Joint Committee for the Scrutiny of Regulations 30 May 2002. It appears that some of the arguments raised by the accused in this case may have come from this report.
See also the companion cases of R. v. Forsey 2003 NLSCTD 57 (digested herein) and R. v. Rideout 2003 NLSCTD 58 (digested herein).
Offences – Due Diligence – Wrong area - Mistake of Fact – Officially Induced Error
R v. Rideout , 2003 NSPC 5
This case involved a crab fisherman who was charged with contravening a condition of his licence that only allowed him to fish in sub-area 23d. At trial it was established that the accused was fishing outside sub-area 23d based upon a mistaken but honest belief that he was inside sub-area 23d. At issue in the case was the application of the due diligence and/or officially induced error defence.
The evidence was that the conditions of the licence of the accused only described a portion of sub-area 23d making it necessary for the accused to either obtain a copy of the regulation or contact D.F.O. in order to obtain the co-ordinates of the boundaries of area 23.
After an interesting discussion of the overlapping nature of these defences, the court concluded as follows:
Since the Crown was able to satisfy the court of the boundaries of area 23d for the purposes of proving the actus reus of the offence, it could not be said the licence conditions were vague and misleading;
Since the accused did not take the time to chart the boundaries of area 23d before starting to fish (which may have involved contacting D.F.O. to ascertain the boundaries of area 23) he cannot be said to have taken all reasonable steps to avoid committing the offence; and
Since the boundaries were ascertainable by reference to the licence conditions and regulations, it cannot be said that the wording of the conditions induced the accused into making an error.
Postscript: For a decision of the Supreme Court of Canada on officially induced error see Levis (City) v. Tetrea 2006 SCC 12 (reasons)
Offences - Due Diligence - Mistake of Fact
R v. Croft, 2003 NSCA 368
This case involved a fisherman who was charged with catching six undersize lobsters out of a total catch of 100 to 150 lbs of lobsters. Despite evidence that he used a properly calibrated measuring device, the trial judge rejected a due diligence defence and apparently a separate defence based upon the maxim de minimus non curat lex (the law does not care for, or take notice of, very small or trifling matters). Upon both summary conviction appeal and upon further appeal to the Nova Scotia Court of Appeal, the decision of the trial judge was upheld. As well, the court rejected a new defence based upon mistaken of fact.
Editor's note: This case contains a useful review to the tests to be applied in a appeal of a decision of a summary conviction appeal court. With respect to the court's rejection of the de minimus defence, while technically correct, the de minimus type considerations are usually subsumed into the application of the due diligence test. For example, if the six undersize lobsters were only a millimeter undersize, it would be open to the trial court to find that despite the failure to grade out the undersize lobster the fisherman did everything reasonable under the circumstances to avoid committing the offence.
Offences – Due Diligence - misleading or false estimate of catch
R v. Kavanagh ,  N.J. No. 124
This case involved a charge against a crab fisherman under s. 63(3) of the Fisheries Act of producing a fishing log with a misleading or false estimate of the size of his catch.
Evidence was lead at trial that although discrepancy of 5 to 10 per cent was not uncommon, the actual catch of the fisherman was 33.6 per cent higher than his estimate. Given the fact that the accused was an experienced captain and crab fisherman who was also familiar with his vessel and its capacity, the court relied upon R. v. Petten (1995) 129 Nfld and P.E.I.R. 37 (Nfld. S.C.T.D.) and R.v. Vanbuskirk (2000) 143 C.C.C. (3d) 274 (N.S.C.A.) (digested herein) to convict.
In rejecting a due diligence defence, the court did concede that “an estimate does not require absolute precision and I believe any court would be inclined to offer a degree of latitude, particularly in view of the fact that the evidence supports a variation on practice of between five and ten percent. It is not, for example expected that the captain personally weigh the crab that was caught before arriving at the estimate.” (para. 15)
Offences – Due Diligence –Incidental Catch of Swordfish
R v. Hennebery , 2001 NSPC 25
This case involved the Atlantic Tuna fishery. As a result of an excessive swordfish by catch, D.F.O. negotiated a deal to get extra swordfish quota from Nova Scotia Swordfish Association. This allowed 12 vessels to continue fishing tuna, each with a swordfish by catch allowance of 1.2 tonnes.
After being caught exceeding his quota, the accused attempted a due diligence defence based upon the following:
It was too dangerous to weight the tuna in round weights as required by his licence; and
He thought that he could exceed his by catch allowance and simply have it deducted from his allowance in the following year.
In rejecting this defence, the court that “because of his experience and awareness of his responsibility under the licence it is difficult to conclude that he could have held a reasonable and honest belief that his way of doing things was the correct way . . . (para. 19).
Postscript: Upheld on appeal at 2009 NSCA 112 (link)
Offences – Due Diligence – Fishing in U.S. Waters
R v. Chung Hoa Truong and Ca Lun Ung, (Surrey Registry No. 106791-01)
This cased involved a charge of fishing for crabs in waters which were other than Canadian waters. At trial, expert evidence was lead with respect to the difficulty of determining one’s precise position in relation to the border because of such factors as the unreliability of range markers and global positioning systems and the difficulty of precise navigation in rough seas while having to avoid running over the large number of marker buoys in the area. Despite accepting a good deal of this evidence, the court rejected a due diligence defence on the following basis:
Given all the potential difficulties in using the ranges to run along the border, the margin of error built in to the GPS, and the potential difficulties in steering a boat with precision in water occupied by other vessels and thousands of crab traps, it is clear that it is foolhardy to attempt to set a line of traps right along the border. A fisher doing so makes no allowance for any of the factors which might cause a vessel to stray into American waters, and is not exercising due diligence.
In rejecting the defence, the court distinguished the cases of R. v. Starvish  N.S.J. 223 and R. v. Harris (1998) 121 C.C.C. (3d) 64.
Offences – Due diligence – accurate hail
R v. Vanbuskirk, 1999 CanLII 2346
This case was a summary conviction appeal by a fisherman who was convicted of failing to provide an accurate hail of the round weight of his catch. In setting aside his conviction and ordering a new trial, the court relied upon the following test as set out in R. v. Doucette (24 November 1998) No. 745660 (N.S.Prov. Ct.):
"Has the Crown proven beyond reasonable doubt that the defendant ‘failed to hail the round weight of cod and haddock, or, in other words, that the defendant failed to use his best skills and judgment in preparing the estimates on which his hail was based?"
Offences - Undersize Lobster - Due Diligence
R v. LeBlanc, 1998 CanLII 17596
This was a summary conviction appeal of an acquittal of a fish boat Captain upon evidence that his son had been "sneaky enough" to hide under the floor without the knowledge of his father.
The court upheld the acquittal without a great deal of analysis. It said "the judge did not want to convict the accused for being deceived by a sneak".
Editor's Note: This can probably best be classified as a due diligence case. That is, a reasonable person in the Captain's position would not be expected to have avoided committing the offence.
Counsel for the Crown: William C. Kean
Counsel for the Accused: J. Anderson Ritchie
Offences - Due Diligence - Exceeding by-catch - Reliance on crew member
R v. Harris , 1997 CanLII 990
This case involved a charge against a fisher for failing to comply with a term of his fishing licence, namely exceeding the amount of by catch of Hake as allowed by his licence. At trial he gave evidence that he relied upon an experienced crew member to follow his instructions. The crew member had been doing the job properly for 1 ½ years prior to the offence.
At the trial level, the trial court judge acquitted the accused on the basis of due diligence. On a summary conviction appeal, the acquittal was overturned. On appeal, Mr. Justice Roscoe giving a unanimous decision for the court overturned the appeal and restored the acquittal.
Editors Note: For a similar case in British Columbia see R. v. Smith (30 Oct. 96) digested herein.
Offences - Undersize - continuity - Defences - Due Diligence
R v. Roy , N.S.J. No. 135;C642720;C642719
This case involved a charge of possession of undersize lobsters. After the lobsters were seized, they were put in a bucket and carried by a fisheries officer to his truck. He then put the lobsters in a bag and marked it with a black marker. The bag was put into a freezer where it was stored until the evening before the trial. At trial, the Accused claimed that he measured the lobsters on the day they were seized and they were all legal according to his measurement. At trial, the lobsters were measured and found to be undersize. The trial judge found that the Crown had established continuity beyond a reasonable doubt.
The trial judge also rejected a due diligence defence based upon 8 undersize lobsters out of "a small catch of less than 150 pounds."
Counsel for the Crown: James P. DiPersio
Counsel for the Accused: Russell W. Cushing