This case involved charges against a fisherman of landing halibut contrary to his commercial trawl licence on three different occasions. This licence provided that the fisherman could land an unlimited amount of turbot but only a set quota of other species caught as a by-catch. When these quotas are reached the vessel must stop fishing. The vessel is not allowed to catch any halibut. If caught, the halibut must be returned to the sea. Once a pre-defined limit of halibut deaths has been reached, the vessel must stop fishing.
Even though the Department of Fisheries and Oceans (“D.F.O.”) purports to have a zero tolerance for landing halibut, in actual fact D.F.O. approved a practice whereby landed halibut were donated to local charities. D.F.O. appeared to allow its individual enforcement officers to decide when the amount of landed halibut was sufficient to justify laying charges.
With respect to the defence of due diligence, the fisherman lead the following evidence:
The tally sheets from other vessels that were not charged showed overages ranging from .1% to .35%;
The accused fisherman’s overages were .2%, .3% and .1%; and
D.F.O. observers aboard the boat said that they saw no halibut go into the hold, the defendant made short tows to avoid killing any halibut that were caught; the crew were well trained and well supervised, crew were observed going down onto their bellies to retrieve halibut from the holds that had accidentally slipped in.
Although D.F.O. argued that the vessel should not go out in bad weather, the court appeared to reject this argument and dismissed the case based upon a due diligence defence.