R v. Kavanagh

In Due Diligence, Fish Cases, Offences on (Updated )

This case involved a charge against a crab fisherman under s. 63(3) of the Fisheries Act of producing a fishing log with a misleading or false estimate of the size of his catch.

Evidence was lead at trial that although discrepancy of 5 to 10 per cent was not uncommon, the actual catch of the fisherman was 33.6 per cent higher than his estimate. Given the fact that the accused was an experienced captain and crab fisherman who was also familiar with his vessel and its capacity, the court relied upon R. v. Petten (1995) 129 Nfld and P.E.I.R. 37 (Nfld. S.C.T.D.) and R.v. Vanbuskirk (2000) 143 C.C.C. (3d) 274 (N.S.C.A.) (digested herein) to convict.

In rejecting a due diligence defence, the court did concede that “an estimate does not require absolute precision and I believe any court would be inclined to offer a degree of latitude, particularly in view of the fact that the evidence supports a variation on practice of between five and ten percent. It is not, for example expected that the captain personally weigh the crab that was caught before arriving at the estimate.” (para. 15)