Four vessel operators were charged with gill net fishing for salmon in a closed area after drifting from an open area into a closed area. The open area was open to fishing for a number of different species of salmon but closed for chum salmon because there was a run of chum salmon in the vicinity that was endangered. The commercial fish harvesters in the area had been warned that if they wanted to continue fishing the area they would have to take great care to release any incidentally caught chum without injuring them. This involved carefully picking them out of their nets without injuring them and, if necessary, resuscitating them in a revival tank. On the day the fish harvesters were charged they had made three previous sets whereby they set their nets 3/4 of a mile from the area boundary and drifted with tide and wind until they were 1/4 mile from the boundary. At that point, they started pulling in their nets and were able to pick their nets before they reached the boundary.
On the fourth set, when they pulled their nets 1/4 of a mile from the boundary, the number of chum and other salmon in their nets had multiplied dramatically. If they had not caught any endangered chum, they could have wrapped their net with fish attached around their drum and sorted it later on in the open area. However, because they had a large number of endangered chum in their net that option was not available because it would killed the chum.
The fact that all four fisherman found themselves in the same predicament added credibility to their assertions that this offence could not reasonably have been avoided. Accordingly, the Court allowed a due diligence defence and acquitted them all.