Due Diligence Is Established By Actions Before Incident–not Afterwards


Because due diligence is a defence to environmental offences as well as safety violations, we run an annual Due Diligence Scorecard in the Environmental Compliance Insider similar to the one we run in the Safety Compliance Insider. Of the six cases in this year’s environmental Due Diligence Scorecard, in only one, the Boyd case from Nova Scotia, did the defendant’s due diligence defence succeed. (There was, however, a case from BC in which one defendant lost, while two others won.) Unfortunately for the defendant in Boyd, that victory was short-lived. An appeals court recently ruled that the defendant didn’t exercise due diligence and convicted him of violating the Fisheries Act. Here’s what happened.

The Facts

A section of a crab fishing area, called a “buffer zone,” was closed for fishing on May 2. That day, a crab fisherman and his brother went out crabbing. The brother manually programmed in the coordinates for the buffer zone. But he entered the wrong information. As a result, they ended up setting 39 traps in the buffer zone. On May 3, the fisherman discovered the mistake. He immediately called the Department of Fisheries (DFO) and followed the DFO’s instructions. He was charged with violating the Atlantic Fishery Regulations under the Fisheries Act by illegally crabbing in a closed area on May 2.

The Trial Court’s Ruling

In acquitting the fisherman, the Nova Scotia Provincial Court answered three questions:

  1. Did the fisherman exercise due diligence on May 2 before setting his traps? The trial court ruled that the fisherman didn’t exercise due diligence when he set his traps on May 2. There was no system in place to prevent the mistake made by the brother when entering the coordinates. For example, the fisherman didn’t take any reasonable steps before setting the traps to verify their location and the location of the buffer zone.
  2. Did he make a reasonable mistake of fact? The court also concluded that the fisherman didn’t make a reasonable mistake of fact. It did acknowledge that the fisherman and his brother honestly believed that they were outside of the buffer zone when they set the traps. But that belief wasn’t reasonable given the lack of any system to ensure that they didn’t set traps in closed areas.
  3. Did he exercise due diligence in “all the circumstances”? The court found that although the fisherman didn’t exercise due diligence before setting the traps, he did exercise due diligence in “all the circumstances” of the case. For example, when he realized the traps were in the buffer zone, he immediately notified DFO and didn’t unload the crabs in those traps. In fact, he released them. So there was no harm done, the law’s goals weren’t undermined and he didn’t profit from the offence. Thus, the court concluded that the fisherman had exercised due diligence before the act of illegal fishing was completed [R. v. Boyd, [2010] NSPC 5 (CanLII), Feb. 1, 2010].

The Appeals Court’s Ruling

The appeals court noted that the fisherman was charged with environmental violations based on his conduct on May 2. Thus, once the trial court concluded that, on May 2, the fisherman hadn’t exercised due diligence to ensure that the traps weren’t set in the buffer zone, the inquiry should’ve stopped there and the fisherman been convicted. Instead, the trial court decided to look beyond the date of the offence and apply “some broader notion of acting reasonably,” said the appeals court. In ultimately acquitting the fisherman, the trial court put undue emphasis and reliance on his actions on May 3, the day after the violation occurred. The appeals court agreed that the fisherman acted “admirably” once he discovered the misplaced traps. But these acts of “diligence” on May 3 don’t relate to the violation committed on May 2 and thus can’t form the basis of a due diligence defence, said the appeals court. Thus, it entered a guilty verdict against the fisherman [R v. Boyd, [2010] NSSC 417 (CanLII), Nov. 10, 2010].

Bottom Line

The appeals court didn’t disagree with the notion that due diligence should be evaluated based on all the circumstances of a particular case. It simply took exception to the trial court’s  consideration of actions after the date of the violation. Thus, when courts evaluate a due diligence defence, they should consider all the circumstances of the violation, including the defendant’s actions before and during the events in question. But they shouldn’t consider the defendant’s actions after an environmental violation has already occurred.