This case involved a crab fishing vessel that was required under its licence to have the licence holder or a designated operator on board the fishing vessel at all times when fishing and offloading. When the licence holder could not be on board the fishing vessel because of health reasons, she and her son attempted to have a new crew member designated by the Department of Fisheries ("DFO") as a designated operator. The licence holder was advised by DFO that before the new crew member could be designated as the operator, he would have to be registered with the Professional Fish Harvesters Certification Board. The new crew member filed an application with the Association and then proceeded to go fishing approximately one month later without having received a reply. Shortly thereafter, he and the licence holder’s son were caught fishing with a substantial amount of crab on board and the son was charged for fishing without authorization and possession of illegal fish.
At trial the son admitted committing the offence, but argued due diligence on the grounds that reasonable attempts had been made to have a designated operator appointed and no one had advised him that he new crew member had not been approved.
The court summarized the law of due diligence as follows:
1. the onus of establishing the defence rests with the accused;
2. the applicable standard of proof in one of a balance of probabilities;
3.the accused must establish that she or he took all reasonable care to avoid committing the actus reus of the offence;
4. an objective standard is applied in which the acts or conduct of the accused are assessed against that of a reasonable person in similar circumstances;
5. the acts or conduct said to illustrate due diligence must relate to the external elements of the specific offence that is charged. Acting reasonably in the abstract or taking care in a general sense will not suffice;
6. due diligence does not require "superhuman efforts" or exposing oneself to unreasonable danger. The defence requires "a high standard of awareness and decisive, prompt, and continuing action"; and
7. the Court must be careful not to set a standard of care in the context of a particular offence so high so as to effectively create an absolute liability offence or to effectively prohibit individuals from participating in the regulated activity.
After reviewing all of the evidence, the court rejected the due diligence defence because the son neglected follow up and see if the new crew member had been registered with the Professional Fish Harvesters Certification Board and designated by DFO as an operator before he went fishing with him.