R v. Pisces Fishery Incorporated

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

This case involved a company that employed a captain to operate its commercial fishing vessel on a lake in Ontario. The Crown planted a covertly installed tracking device on the vessel and then later compared the daily catch reports prepared by the captain to the information provided by the tracking device. As a result, it was discovered that the captain had prepared numerous misleading and false daily catch reports.

At trial the captain admitted providing false information and consequently the main issue of the case became the question of whether the company was duly diligent with respect to the actions of its captain. At first instance, the trial court accepted that the company had established due diligence by meeting with the captain annually and reviewing his duties with him. The Court did not believe it was necessary for the company to compare daily catch reports to the vessel log book.

Upon further appeal, the appeal court set out the following general principals with respect to due diligence defences:

1. The reasonableness of the care taken must be assessed in light of the specific circumstances of the offence(s) before the court;
2. The degree of care warranted in each case is governed by a consideration of and balancing of the gravity of the potential harm, the alternatives available to the defendant, the likelihood of harm, the degree of knowledge or skill expected of the defendant, and the extent to which the underlying causes of the offence are beyond the control of the defendant;
3. Evidence of standard practice in the industry is only one important factor;
4. Those who engage in an activity within a regulated area are taken to be aware of and to have accepted the responsibility of meeting an objective standard of conduct;
5. A defendant will not be held liable for unforeseeable events or activities beyond which they might reasonably be expected to influence or control;
6. The failure of government officials to properly exercise statutory responsibilities to inspect or take preventative action will not provide a defence where the defendant acted negligently;
7. An employer must show that there was a system in place to prevent the prohibited act from occurring and that reasonable steps were taken to ensure the effective operation of that system;
8. A corporate defendant must show there was a system in place to prevent the prohibited act from occurring and that reasonable steps were taken to ensure effective operation of that system. (para. 36).

The court then rejected the due diligence defence and set aside the acquittal for the following reasons:

1) No evidence was adduced by the defendant of industry standards;
2) The trial court never asked what system the defendant could have put into place to avoid the offence;
3) The evidence did not show any formal system was put into place by the corporation to ensure compliance.

With respect to a system to ensure compliance the court suggested the following minimum system:

1. Semi-annual meetings with the captain of the vessel to review in detail the terms and conditions of the licences issued to the licencee;

2. A copy of the terms and conditions in the licence should be maintained in both the office and on the vessel in a prominent location as a reminder;

3. Periodic random reviews of the logbook by the owner for completeness;

4. Periodic random comparisons of the information in the logbook with that on the Daily Catch Report for that date to ensure that the information corresponds;

5. A system for the imposition of warnings and discipline up to and including termination of employment for non-compliance or repeated non-compliance;

6. If necessary, a requirement that another crew-member initial the daily entries in the logbook to verify the information record.

The court rejected a suggestion by the Crown that the company should have
included an audit of all daily catches and possibly the use of a GPS locator by the company for spot checks on the Captain.