This case involved a fish harvester who was charged with violating a licence condition that prohibited him from retaining whelk that were less than 63 mm in overall length. At trial the fish harvester gave evidence that his primary method of grading the whelk for size was by using a grading table that that was an open table with a series of bars in the middle. The crew dumped the shell fish on the table and spread them out evenly causing the small ones to fall through the grate. Although the table measured the girth rather than the length, his evidence was that this was the industry standard and no other measurement method was available. Given the small size of the fish and size of the catch (24,309 pounds), this was the only practical method of measurement available.
At the first instance the provincial court trial judge rejected a due diligence defence on the grounds that "[t]he reality is that measuring every single whelk would be time consuming, and, therefore, expensive. It would not, however, be impossible. Here I hasten to add that while measuring every single whelk to ensure that it was less than 63mm long might have been expensive, it is incumbent on the fishers to conduct the fishery so as to comply with the conditions of their licences. In other words, the requirement to comply with the licence condition is not waived just because it might impinge on the profit margin of the fishery [para. 26]".
Upon summary conviction appeal, the decision of the trial judge was set aside on the grounds that he set to high a standard. The Appeal Court noted that the Crown had not led any evidence that there was any other method of measuring the catch other than measuring each whelk. It noted that based upon the time it took the Crown to measure six bags of whelk, it would have taken 10 regular work weeks to measure a three day catch.
The matter was remitted for a new trial before a different trial judge.