R v. Kinghorne

In Due Diligence, Fish Cases, Offences, Search and Seizure on (Updated )

This case involved a charge of having on board a fishing vessel scallops having more than the permitted average count of 45 meats per 500 grams. At trial a number of defences were raised including (1) illegal search, (2) due diligence, and (3) mistake of fact.

With respect to the due diligence and mistake of fact defences, the accused unsuccessfully argued at trial that he was duly diligent by employing the "milk can" method of measurement recommended by a local fisheries officer. After a lengthy review of the jurisprudence and the facts, the summary conviction appeal court upheld the trial court’s rejection of the due diligence defence. In doing so, it note that the accused did not produce the milk cans at trial for inspection by the court. In addition, there was no evidence of the qualifications of the designer of the system, there was no evidence that the system put in place by the accused was the same as the system recommended, and there was no evidence of any satisfactory measures taken to verify the accuracy of the system.