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.