Whelk harvester’s new trial to focus on due diligence
A fisherman from Garnish could not secure an acquittal for breaching the conditions of his whelk licence.
The Supreme Court of Newfoundland and Labrador Court of Appeal upheld a previous decision to overturn Jamie Rideout’s conviction and order a new trial.
Rideout was charged two years ago after fisheries officers examined six bags of his whelk, of which 21.5 per cent was considered undersized. In such cases, a harvester can present a defence based on due diligence. In this case, Rideout and his crew used a specially built grading table to minimize the likelihood of harvesting undersized whelk.
Justice Garrett Handrigan earlier this year questioned whether the trial judge correctly applied the law and said the standard for reasonable care was too high. Handrigan ordered a new trial. Rideout, who has been fishing for more than 20 years, was originally convicted in January 2013 and fined $1,000.
In his appeal, Rideout argued Handrigan should have ordered an acquittal instead of a new trial because it was shown he took reasonable care to avoid committing a regulatory offence.
Although the Appeal Court ruled against Rideout, not all Supreme Court justices were in agreement. Justice Malcolm Rowe noted the percentage of undersized fish caught was slightly more than 20 per cent.
According to Rowe, inspectors with the Department of Fisheries and Oceans (DFO) do not lay charges unless more than 20 per cent of the catch is undersized.
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“On the day of the inspection, a grading table that Mr. Rideout and others use resulted in (1.5 percentage points) more undersized whelk than DFO calls for,” Rowe wrote in his dissenting reasons. “Mr. Rideout made a genuine effort to adhere to the rules, but on the day in question it did not work out; ill fortune, rather than a want of due diligence, put him slightly over DFO’s rule.”
However, the other judges who heard the appeal said an industry standard for practising due diligence such as a grading table may not necessarily live up to a legal standard.
“Just as a speeder cannot be absolved of responsibility for speeding because most other drivers speed, a whelk fisher is not necessarily absolved of retaining undersized whelk because he uses the same culling method as most other whelk fishers,” Justice Lois Hoegg wrote in the court’s ruling.
The court went on to discuss the need to consider how the grading table is used when sorting whelk.
“Evaluation of this evidence in the context of the whole of the evidence, informs the ultimate question of whether Mr. Rideout took all reasonable steps to avoid retaining undersized whelk.”