R v. Neary

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

This case involved charges under s. 48 of the Atlantic Fisheries Regulations for possessing undersize mackeral that were incidental catch.

Section 48 of the Regulations provides as follows:

(1)Subject to ss. (2) and (4), no person shall fish for, buy, sell or have in his possession any mackerel that is less than 25 cm in length.

(2) Subsection (1) does not apply with respect to mackerel that are less than 25 cm in length where (a) the catching of the mackerel was incidental to the catching of longer mackerel; and (b) the number of mackerel less than 25 cm in length retained during any one fishing trip does not exceed 10 % of the number of longer mackerel caught and retained during the fishing trip.

The main issue in this summary conviction appeal was who had the onus of establishing that the undersize mackeral were within the 10 per cent allowable incidental limit set out in s. 48(2).

The appeal court ruled that s. 48(2) was akin to the due diligence section set out in s. 78.6 of the Fisheries Act. Accordingly, the accused had the onus of establishing his incidental catch. Since he failed to do so, he was guilty.

Editor’s note: The correctness of this oral decision is suspect for the following reasons:

1) the Appeal Court failed to take into consideration that s. 78.6 of the Act includes a reverse onus provision while s. 48(2) of the Regulations does not;

2) under the due diligence provisions, the accused would not have been allowed to retain 10 per cent of the catch if he could reasonabley have avoided it.