This case involved a charge of fishing with a herring gillnet having a mesh size of less than 57 mm contrary to s. 42(1)(d) of the Pacific Fishery Regulations. Evidence was led by the Crown that the net in question was measured by two different fisheries officers one of whom measured the net vertically while the other measured it horizontally. The accused was aquitted at trial and the Crown appealed on the grounds that the trial judge made the following errors:
1. Erred in fact and in law in finding a reasonable doubt existed as to the mesh size;
2. Erred in law in his interpretation of the definition of mesh size as set out in the regulations; and
3. Erred in law in allowing the accused to call opinion evidence with respect to the proper method for measuring mesh size and in accepting such evidence.
With respect to reasonable doubt, the summary conviction appeal court found that there was evidence upon which the court could find reasonable doubt including:
1. Evidence that some net mesh may be different;
2. Evidence that a three per cent error is often allowed;
3. Evidence that the net material performs differently when wet and dry; and
4. Evidence that one fishery officer measured the net vertically while another measured it horizontally.
With respect to the definition of mesh size, appeal court agreed with the trial court that the definition of mesh size in the regulation did not say how the measurement is to be done. However, it found that contrary to the assertion of the Crown, the court did not decide as to what was the proper method of measurement.
With respect to reliance on opinion evidence, given the lack of judicial decisions as to how to properly measure nets mesh (and the uncertainty in the regulations), the court was correct in admitting opinion evidence. The court was also correct in finding that the opinion evidence did not assist it, given the lack of a long standing consistent practice in measurement methodology.