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 [1987] N.S.J. 223 and R. v. Harris (1998) 121 C.C.C. (3d) 64.