R v. Keough

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

This case involved a charge of fishing for crab during a closed time. The accused ran a defence based upon evidence that he had been unable to retrieve his crab traps prior to the end of the season because of bad weather. He gave evidence that he contacted someone named "Tony" at the St. John’s office who advised that "they were allowed ‘as in previous years’ , to remove their pots from the water and could keep the crabs that were removed. Notwithstanding the fact that he disbelieved this evidence, the trial judge applied the R. v. S.(W.D.) (1994), 119 D.L.R. (4th) 464 (SCC) test and acquitted because "it’s possible that it’s true".

Upon summary conviction appeal, the appeal court found that the court erred in applying the R. v. S.(W.D.) to the question of whether or not the accused exercised due diligence to avoid committing the defence. Accordingly, it set aside the acquittal and entered a conviction.

Editor’s note: S. 25(3) of the Fisheries Act provides that:

A fishery officer may permit fishing gear or apparatus to remain in the water . . . after the . . . close time for any period the fishery officer considers necessary to permit the removal of the gear or apparatus.

Based upon this section, if permission was was actually given to have gear remain in the water, then it could be argued that the actus reus of the offence of fishing during a closed time did not occur as the close time was effectively extended under s. 25(3). If so, the trial judge was correct in applying the W.D. test instead of the proof on a balance of probabilities under the second branch of the Saulte St. Marie test. Unfortunately the oral reasons appear to be have been rather fragmented and in any event were not produced in their entirety in the judgment.