This case involved a summary conviction appeal of an acquittal from charges of catching and retaining undersize clams. This case involved two fishermen who were in the water fishing for clams with a rake like tool at the time of apprehension. They had floating containers holding freshly picked clams, some of which were undersized. Despite the fact that the accuseds called no evidence, the trial court acquitted on the grounds that the crown failed to prove the clams had been “retained”.
After reviewing a number of authorities along with section 33 of the Fishery (General) Regulations, the summary conviction appeal court set aside the acquittal on the following grounds:
There is no evidence before the court on which a conclusion could be made that the clams, the possession and retention of which were prohibited were forthwith returned to the place from which they were taken or that the accused persons did not have the opportunity because of circumstances to reasonably comply wit the requirement for returning the claims forthwith to the place from which they were taken.