Whelk harvester gets new trial after being convicted of licence breach
A new trial has been ordered for a fisherman from Garnish for breaching the conditions of his whelk licence, even though it was proven he committed the offence.
Jamie Rideout, owner of the Grand Ride, was charged in Lawn on July 3, 2012, after fisheries officers searched his catch of whelk and discovered some of the mollusks were smaller than the required size of 63 millimetres — a condition of his licence.
The Burin Peninsula man was found guilty in January 2013 and fined $1,000. The trial judge gave Rideout 12 months to pay, but didn’t order the forfeiture of the 24,309 pounds of whelk, worth $15,642.85, as part of the sentence.
The Crown appealed the sentence and Rideout, a 20-year veteran fisherman, appealed the conviction.
Newfoundland Supreme Court Justice Garrett Handrigan heard both appeals on Feb. 21, 2014 and filed his decision Wednesday.
“I agree with Mr. Rideout that his appeal from the trial judge’s decision should be allowed. It is clear to me from his decision, and as the Crown claims, that the trial judge knew the issue he had to decide and the law that he should apply when deciding that issue. It is not so clear to me that the trial judge applied the law correctly,” Handrigan wrote.
According to Handrigan’s decision, breaching a licence condition is a regulatory offence and the Crown only needs to prove the act had been committed. The onus then shifts to the defendant to prove he took reasonable care to avoid committing the offence.
Handrigan said there is no doubt the Crown proved Rideout committed the offence given the evidence from the fisheries officers, who testified that 21.5 per cent of the whelk they examined from the catch was smaller than 63 mm. They examined six bags of whelk in a random sampling — about one per cent of the whelk onboard.
At trial, Rideout testified about the steps he took to ensure he retained no undersized whelk.
Having fished for whelk since 2007, he said he was well aware of the restriction and tried to comply by installing a grading table on the Grand Ride.
He described the table as an
“…open table with a series of bars in the middle. The crew take the whelk and move it around to make sure that it is evenly spread out and the small ones fall through the grate. They go into a box on the bottom of the table and the good ones that stay on top, we keep.”
The undersized whelk go back in the water.
The trial judge rejected Rideout’s method of culling his catch for undersized whelk and found he had not exercised reasonable care to avoid catching it.
But Handrigan said the trial judge set too high a standard for Rideout to meet and “Mr. Rideout need only have shown that he took all reasonable steps to avoid committing the offence.”
Rideout testified he had an experienced crew and told them to be vigilant about undersized whelk and not to retain any they thought were small.
He acknowledged the grading table sorts whelk by girth and not length and conceded it would not necessarily detect whelk shorter than 63 mm.
Rideout said it would be practically impossible to measure each whelk for compliance with the length restriction.
However, the trial judge said Rideout, “having identified the obvious failings of the grading table … ought to have suspended the operation of the whelk fishery until he was able to correctly sieve out the large and small whelk from his catch.”
The trial judge also noted, “The 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 63 mm 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.”
Handrigan noted that when fisheries officers randomly measured about 240 pounds of whelk — one per cent of the catch — it took them almost four hours.
“At that rate, it would take at least 400 hours (16 2/3 days or 10 regular work weeks!) to measure the full catch,” Handrigan noted.
“Mr. Rideout testified that they fished (approximately 96 hours) to catch the whelk. Thus, they would never have had time to measure the entire catch during that voyage, even if they had wanted to do it.
“The trial judge set too high a standard for Mr. Rideout to meet to show that he took reasonable care to avoid retaining undersized whelk. …
“It may result that there is no other method than the one that Mr. Rideout relies on to cull whelk for size. If so, that method should not be rejected as inadequate, or it may result that no method exists to avoid committing the offence.”
A new trial date has not been set.