This case involved a charge under s. 44 of the Atlantic Fisheries Regulations for possession of undersize herring that was incidental catch.
S. 44 of the Atlantic Fishery Regulations provided:
44. (1) Subject to subsections (2) and (4), no person shall fish for, buy, sell or have in his possession any herring that is less than 26.5 cm in length.
2) Subsection (1) does not apply with respect to herring that are less than 26.5 cm in length where:
(a) the catching of the herring was incidental to the catching of longer herring; and
(b) the number of herring less than 26.5 cm in length retained during any one fishing trip does not exceed 10% of the number of longer herring that were caught and retained during that fishing trip.
3) For the purposes of subsection (2), the percentage shall be determined on the basis of four or more samples taken from the catch, with each sample containing 50 or more herring.
A variation order changed the minimum length of herring set out in S. 44 (1) to 23.5 cm. Section 44 (2) was varied to prohibit incidental catch of herring of less than 23.5 cm in length of an amount greater than 50% of the longer herring caught.
At issue in this summary conviction appeal was who had the onus of proving that the undersize incidentally caught herring were not in an amount in excess of 50 per cent of the catch.
Without a great deal of analysis, the court followed R. v. Neary, 2010 NSSC 466 (digested herein) to hold that subsections 44(2)& (3) are due diligence provisions that must be proved by the accused. As a result the court set aside the acquittal of the trial judge and entered a verdict of guilty.
As discussed with respect to R. v. Neary, the correctness of this decision is suspect for the following reasons:
1) The Appeal Court failed to take into consideration that the due diligence provisions of s. 78.6 of the Fisheries Act have a specific reverse onus provision that is not contained in s. 44 (2) and (3) of the Regulations; and
2) Under the due diligence provisions of s. 78.6 of the Act and under common law, the accused would only be acquitted if he could show that the incidental catch could not reasonably be avoided whereas s. 44(2) provides for an automatic acquittal.
In addition, as a practical matter when a fishing vessel is being inspected for compliance with s. 44 and fish are being seized in anticipation of charges, it would be quite difficult for an accused to take samples as anticipated by subsection (3).