'Short Lobster' crime in Nova Scotia

Debbie MacKenzie
 March 12, 2008

An open letter to lobster fishermen from Debbie MacKenzie (not a lawyer) regarding my concern that some of you may have been dealt short by the justice system, and suggesting a possible remedy. This is not legal advice, but merely the opinion of a non-lawyer who lost a trial trying to do the apparently impossible, defend a Nova Scotia fisherman charged with "possession" of "short" lobsters by the Department of Fisheries and Oceans (DFO).

Canada's Fisheries Act grants absolute discretion to DFO fishery officers to determine fishermen's "strict liability" for the "possession" of "short" or "undersize" lobsters. Courts are imposing large fines. When fishery officers determine that a lobster is "short" and/or that the number of "short" lobsters found in a batch shall be deemed an offence, they are currently under no obligation to grant the fisherman the legal protections enjoyed by other citizens under the Weights and Measures Act. I want this changed, as I have had friends hurt by this injustice. Can the Fisheries Act withstand a challenge under the Canadian Charter of Rights and Freedoms that holding fishermen to strict liability in measurement constitutes a breach of their equality rights as citizens?

(click on photo to enlarge)

This is a frozen exhibit, that was entered at my friend's trial as evidence a lobster was "short." This photo was taken one week before trial, when the allegedly "short" lobster was compared to a vernier caliper, an adjustable measuring device, that was set at 82.5mm. The capacity of the caliper to measure accurately is at best +/- 0.1mm. No matter what tool is used, measurement can never be known with perfect accuracy. The length of an object can only be determined within the limits of error of the measuring device. DFO fishery officers are not trained to use vernier calipers, nor to determine the actual length of any lobster they believe is "short." They make this decision using nothing but the same size grading measures used by the fishermen. As in the photo below, the lobster grading "measure" is marked 82.5mm and sold by traders such as Vernon D'Eon. What would happen if a fisherman incurred a "short" lobster fine and then tried to complain that it was D'Eon's fault because he sold a lobster measure that was a wee smidge too small? D'Eon's defense would be found in the Weights and Measures Act. Why can a lobster fishermen not also use this law as his defense of small human error plus inherent uncertainty in measurement?

Obviously, he should be able to, as lobster fishermen are entitled to equal protection under the law in a free and democratic society. Therefore, I believe a "Charter" challenge is in order.

(click to enlarge)

A lobster grading "measure" applied to a live lobster. While they have the right to be set free unharmed if the 'carapace' shell is found to be smaller than 82.5mm in length, Her Majesty's lobsters do not always cooperate with the size screening procedure that can save their lives. The silly bugger in this photo vigorously flapped its tail rather than hold still. Many others likewise resist, even when they find themselves on a moving boat in the dark, exposed to winter weather and being handled by a fisherman with cold hands wearing bulky gloves. Her Majesty obliges a fisherman to provide this screening service to her ignorant lobsters who choose to place themselves in his possession. I think Her Majesty should then owe the fisherman the normal protection that has been available to other innocent humans for over a century under the Weights and Measures Act. Under this law citizens are protected against prosecution based on trivial degrees of error in measurement.

Elements of the "short lobster" offence that the Crown must establish:
"Possession" - how is this established? Easily.
"under 82.5 mm in length" - how is this established? Currently, this is established on the basis of the opinion of fishery officers who
(1) have been given no training in making accurate measurements of length,
(2) who are not required to record the lengths of lobsters, and
(3) who have the discretion to grant zero leeway to fishermen while failing to understand the limited accuracy of the lobster grading measure.

Possible defenses allowed under the Fisheries Act:
"due diligence" - essentially ruled out by caselaw in Nova Scotia (currently)
"reasonable and honest belief" - essentially ruled out by caselaw in Nova Scotia

2006: My unsuccessful attempt to challenge the accuracy of measurement by fisheries officers after a friend was charged with possession of "short" lobsters.
Trial evidence from qualified expert at Measurement Canada (lobster grading "measures" used by DFO are "adequate" for use in "trade")
Trial evidence about the size of allegedly "short" lobsters from DFO fishery officers (it must be "a snug fit" or a lobster is "illegal," and possession of even one of these constitutes a "strict liability" offence)
Statement of defense from my friend ("I am human.")
Opinion of the judge (no authority to question the discretion of the fisheries officers)

Applying the Weights and Measures Act as a defense under the Fisheries Act - how much leeway would this law give fishermen as protection against trivial short lobster charges arising from honest human error? Is it reasonable?
The way I read the Weights and Measures Regulations, this law would allow fishermen to be in limited possession of lobsters that are less than 82.5mm in length. If this legal protection was extended to fishermen, individual lobsters could be "short" by either 2% of the stated length, or by 0.4mm, depending on the interpretation chosen to classify the measuring "device" and for considering lobsters a "commodity." Under the Weights and Measures Act, this is called "the prescribed limit of error." In either case, lobsters could fail to meet the "snug fit" test currently applied by fishery officers while fishermen continued to meet compliance requirements under the Weights and Measures Act. Beyond that, a small percentage of lobsters could be a bit shorter than the prescribed limit of error, as long as they were not over twice the prescribed limit of error. By my interpretation of this section, 7 or 8% of the catch could be found to be up to 4% shorter than 82.5mm and the fishermen would still be within compliance requirements under the law and immune from prosecution. I find this to be reasonable. I believe that if this law had been applied, my friend would have been acquitted of the "short lobster" charge. As it was, he had less than 1% "illegal" lobsters scattered throughout his holding crates as determined by the opinion of fisheries officers. For this my friend was found guilty and punished with a huge fine and a 4 day license suspension at the beginning of the season. At the trial, I tried to show that the fishery officers did not meet the Crown's burden of proof because they did not understand the science of measurement, and I tried to show that their "short lobster" allegations were therefore unreasonable. However, I failed to make the point. At the time, I did not think to present this argument to the court as a challenge of strict liability in measurement under the Fisheries Act as unconstitutional. However, if I had it to do over again, that is what I would do.

What is "strict liability?" What is that designation of offence intended for?
Essentially, strict liability is imposed for offences that pose grave threats to society, such as drunk driving and possession of heroin. It is rather over the top for the justice system to apply the same standard to possession of extremely few and marginally "short" lobsters.

Does DFO mistakenly assume that the word "adequate," as used by a trained Measurement Canada expert, somehow confers flawless "accuracy" in "measurement" by fisheries officers? ...Have their lawyers not read the Weights and Measures Act? This is one of Canada's oldest laws, in which Parliament laid out what is considered "due diligence" in measurement. Why has this never been applied to fishermen, as should be their right?

The Constitutional challenge, to the enforcement under the Fisheries Act of "strict liability" to undersize lobster possession, should be made under section 15 of the Canadian Charter of Rights and Freedoms, which guarantees "equality rights":

"15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law...'

All the best,

Debbie MacKenzie
email:  Codmother@bellaliant.net
(Disclaimer: Again, I am not a lawyer and this information is not to be taken as legal advice.)

At trial, the fishery officers testified that they gave my friend something they believed to be "the benefit of the doubt." They explained that their only point of "doubt" was whether or not their lobster grading measure, if hooked into the back of the eye socket, cleared the back edge of the shell with "no resistance." The fishery officers' "doubt" was focused on whether or not they personally could feel any resistance, i.e. did it feel "snug." If this is the standard applied, fishermen can be fined for errors made by fishery officers. Rather than giving my friend this vague alleged benefit, of the fishery officers' "doubt" regarding their perception of friction, the Courts should instead give him and other fishermen the benefit of protection under the Weights and Measures Act.


Photographic evidence used by DFO

Canadian Charter of Rights and Freedoms
Weights and Measures Act
Weights and Measures Regulations

Measurement Canada Federal Government Department with the motto "Fair Measure for All"
R v. Croft Nova Scotia case law establishing that duly diligent fishermen cannot successfully plead "due diligence"
October 2007: Nova Scotia Court of Appeal upheld my friend's conviction and sentence (but at no level did the Nova Scotia courts consider the possible application of the Weights and Measures Act in his defense.)




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