This case involved a fisherman who was charged with catching six undersize lobsters out of a total catch of 100 to 150 lbs of lobsters. Despite evidence that he used a properly calibrated measuring device, the trial judge rejected a due diligence defence and apparently a separate defence based upon the maxim de minimus non curat lex (the law does not care for, or take notice of, very small or trifling matters). Upon both summary conviction appeal and upon further appeal to the Nova Scotia Court of Appeal, the decision of the trial judge was upheld. As well, the court rejected a new defence based upon mistaken of fact.
Editor’s note: This case contains a useful review to the tests to be applied in a appeal of a decision of a summary conviction appeal court. With respect to the court’s rejection of the de minimus defence, while technically correct, the de minimus type considerations are usually subsumed into the application of the due diligence test. For example, if the six undersize lobsters were only a millimeter undersize, it would be open to the trial court to find that despite the failure to grade out the undersize lobster the fisherman did everything reasonable under the circumstances to avoid committing the offence.