This case involved a charge of failing to comply with a licence condition requiring fish harvesters to return to the water any lobster that have previously been marked with a V notch so as to show that they are capable of spawning. At a pre-trial application, the licence conditions were challenged as (1) being ultra virus and (2) being so broad and vague as to violate the principals of fundamental justice as guaranteed by s. 7 of the Charter.
In rejecting the first argument the Court noted that since s. 22(1)(b) of the Fisheries Act allows licence conditions to restrict the gender of fish taking of fish by gender, "it follows logically that the Minister has the legal authority to prohibit the taking of one fifth of those female lobster . . ." (para. 49).
In rejecting the second argument, the court applied the gross disproportionality test from R. v. Clay, 2003 SCC 75 to find that:
It is difficult to conclude, on the evidence before this Court, that the requirement, by licence condition, that lobster fishers return ten percent of the lobster catch (being marked breeders) to the sea to encourage conservation, as part of a demonstrated and admittedly successful conservation program, is “grossly disproportionate”. On the contrary, it accords with the DFO mandate of conservation of the fishery. [para. 54]