Ward v. Canada (Attorney General), [2002] 1 S.C.R. 569, 2002
SCC 17
Her Majesty The Queen Appellant
v.
Ford Ward Respondent
and
The Attorney General of Quebec,
the Attorney General for Alberta,
the Attorney General of Newfoundland and
the International Fund for Animal Welfare Inc. Interveners
Indexed as: Ward v. Canada (Attorney General)
Neutral citation: 2002 SCC 17.
File No.: 27717.
2001: October 31; 2002: February 22.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci,
Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for newfoundland
Constitutional law -- Distribution of legislative
powers -- Fisheries -- Federal regulation prohibiting sale of young hooded and
harp seals -- Whether regulation falls within federal fisheries power --
Constitution Act, 1867, ss. 91(12) , 92(13) -- Marine Mammal Regulations,
SOR/93-56, s. 27.
Constitutional law -- Distribution of legislative
powers -- Criminal law -- Federal regulation prohibiting sale of young hooded
and harp seals -- Whether regulation falls within federal criminal law power --
Constitution Act, 1867, s. 91(27) -- Marine Mammal Regulations, SOR/93-56, s.
27.
Section 27 of the Marine Mammal Regulations
prohibits the sale, trade or barter of young harp seals and hooded seals,
referred to respectively as whitecoats and bluebacks. W held a commercial
sealing licence issued under the Fisheries Act which permitted him to
harvest hooded and harp seals. On a seal hunt in 1996, W harvested
approximately 50 seals, including a number of bluebacks. He was charged with
selling blueback pelts contrary to s. 27 of the Regulations. W argued that s.
27 was ultra vires Parliament. Trial proceedings were suspended pending
the outcome of the constitutional challenge. The trial judge upheld s. 27 as a
valid exercise of the federal fisheries power under s. 91(12) of the Constitution
Act, 1867 . The majority of the Court of Appeal allowed W’s appeal.
Held: The appeal
should be allowed.
Section 27 of the Marine Mammal Regulations is intra
vires Parliament under the fisheries power. The purpose of s. 27 is to
control the killing of bluebacks and whitecoats by prohibiting their sale, thus
making it largely pointless to harvest them. Parliament’s object is to
regulate the seal fishery by eliminating the commercial hunting of these seals,
while at the same time allowing for a limited harvesting for non-commercial
purposes. The prohibition exists in the context of a scheme that is concerned
with the overall “management and control” of the marine fisheries resource. It
is not directed at controlling commerce or property but rather is designed to
curtail a hunt that was damaging the economic viability of the sealing industry
and the fisheries resource in general. The method chosen to curtail the
commercial harvest of bluebacks and whitecoats may be imperfect, but efficacy
is not a valid consideration in the pith and substance analysis. Moreover, to
argue that because the legislative measure is a prohibition on sale, it must be
in pith and substance concerned with the regulation of sale, confuses the purpose
of s. 27 with the means chosen to achieve it. Viewed in the context of the
legislation as a whole and the legislative history, there is nothing to suggest
that Parliament was trying to regulate the local market for trade of seals and
seal products. Section 27 is in pith and substance concerned with the
management of the Canadian fishery and falls within the federal fisheries
power. The federal power over fisheries is not confined to conserving fish
stocks, but extends more broadly to maintenance and preservation of the fishery
as a whole, including its economic value.
Although broad, the fisheries power is not unlimited.
Parliament must respect the provincial power over property and civil rights.
Whether a matter best conforms to a subject within federal or provincial
jurisdiction cannot be determined by drawing a line between federal and
provincial powers on the basis of conservation or sale. The activity at stake
must be examined to determine whether the matter regulated is related in pith and
substance to the federal fisheries power or the provincial power over property
and civil rights. Here, since s. 27 is vitally connected to protecting the
economic viability of the Canadian fishery as a whole, it is a valid federal
measure. This result fully respects the provinces’ constitutional right to
control property and civil rights.
Section 27 does not fall within the federal criminal
law jurisdiction. While a prohibited act and a penalty are present, it does
not possess a valid criminal law purpose.
Cases Cited
Referred to: Reference
re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31; Global
Securities Corp. v. British Columbia (Securities Commission), [2000] 1
S.C.R. 494, 2000 SCC 21; R. v. Morgentaler, [1993] 3 S.C.R. 463; Whitbread
v. Walley, [1990] 3 S.C.R. 1273; RJR-MacDonald Inc. v. Canada (Attorney
General), [1995] 3 S.C.R. 199; Hunter v. Southam Inc., [1984] 2
S.C.R. 145; Edwards v. Attorney-General for Canada, [1930] A.C. 124; Reference
re Secession of Quebec, [1998] 2 S.C.R. 217; Reference re Provincial
Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158; Law Society of Upper
Canada v. Skapinker, [1984] 1 S.C.R. 357; Attorney General of British
Columbia v. Canada Trust Co., [1980] 2 S.C.R. 466; R. v. Big M Drug Mart
Ltd., [1985] 1 S.C.R. 295; Northern Telecom Canada Ltd. v. Communication
Workers of Canada, [1983] 1 S.C.R. 733; Reference re Waters and
Water-Powers, [1929] S.C.R. 200; Citizens Insurance Co. of Canada v.
Parsons (1881), 7 App. Cas. 96; Proprietary Articles Trade Association
v. Attorney-General for Canada, [1931] A.C. 310; Canadian Federation of
Agriculture v. Attorney‑General for Quebec, [1951] A.C. 179; The
Queen v. Robertson (1882), 6 S.C.R. 52; Reference re Certain Sections of
the Fisheries Act, 1914, [1928] S.C.R. 457, aff’d [1930] A.C. 111; Mark
Fishing Co. v. United Fishermen & Allied Workers’ Union (1972), 24
D.L.R. (3d) 585; International Fund for Animal Welfare, Inc. v. Canada,
[1987] 1 F.C. 244, aff’d in part [1989] 1 F.C. 335; Interprovincial
Co-Operatives Ltd. v. The Queen, [1976] 1 S.C.R. 477; Northwest Falling
Contractors Ltd. v. The Queen, [1980] 2 S.C.R. 292; Comeau’s Sea Foods
Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12; Gulf
Trollers Assn. v. Canada (Minister of Fisheries and Oceans), [1987] 2 F.C.
93, rev’g [1984] 2 F.C. 398; British Columbia Packers Ltd. v. Canada Labour
Relations Board, [1976] 1 F.C. 375, aff’d on other grounds, [1978] 2 S.C.R.
97; R. v. N.T.C. Smokehouse Ltd. (1993), 80 B.C.L.R. (2d) 158; R. v.
Saul (1984), 10 D.L.R. (4th) 736; R. v. Twin (1985), 23 C.C.C. (3d)
33; Attorney-General for Canada v. Attorney-General for Alberta, [1916]
1 A.C. 588; Barry’s Ltd. v. Fishermen, Food and Allied Workers’ Union
(1993), 104 Nfld. & P.E.I.R. 277; R. v. Hydro-Québec, [1997] 3
S.C.R. 213.
Statutes and Regulations Cited
Constitution
Act, 1867, ss. 91 , 91(12) , 91(27) , 92 , 92(13) .
Criminal Code, R.S.C. 1985, c. C-46 .
Fisheries Act, R.S.C. 1985, c. F-14, ss. 43 , 78 .
Marine Mammal Regulations, SOR/93-56, ss. 2(1) “blueback”, “whitecoat”, 3, 27.
Authors Cited
Canada. Royal Commission on Seals
and the Sealing Industry in Canada. Seals and Sealing in Canada, vol.
1. Ottawa: Minister of Supply and Services Canada, 1986.
Hogg, Peter W. Constitutional
Law of Canada, vol. 1, loose-leaf ed. Scarborough, Ont.: Carswell
(updated 2001, release 1).
Lederman, William R. Continuing
Canadian Constitutional Dilemmas: Essays on the Constitutional History, Public
Law and Federal System of Canada. Toronto: Butterworths, 1981.
APPEAL from a judgment of the Newfoundland Court of
Appeal (1999), 182 D.L.R. (4th) 172, 183 Nfld. & P.E.I.R. 295, 556 A.P.R.
295, [1999] N.J. No. 336 (QL), allowing the respondent’s appeal from a decision
of the Newfoundland Supreme Court, Trial Division (1997), 152 D.L.R. (4th) 363,
155 Nfld. & P.E.I.R. 313, 481 A.P.R. 313, [1997] N.J. No. 208 (QL). Appeal
allowed.
David Meadows and Paul
Adams, for the appellant.
V. Randell J. Earle, Q.C.,
and Stephen Willar, for the respondent.
Alain Gingras, for the
intervener the Attorney General of Quebec.
S. H. Rutwind, for the
intervener the Attorney General for Alberta.
Written submissions only by Harold J. Porter,
for the intervener the Attorney General of Newfoundland.
Clayton C. Ruby, for
the intervener the International Fund for Animal Welfare Inc.
The judgment of the Court was delivered by
The Chief Justice
–
I. Introduction
1
This appeal concerns the federal and provincial division of powers set
out in ss. 91 and 92 of the Constitution Act, 1867 . It focuses on the
constitutionality of a federal regulation prohibiting the sale of young hooded
and harp seals. The issue is whether this prohibition falls under the federal
government’s power to legislate in relation to sea coast and inland fisheries
or the criminal law, in which case it is valid, or whether it falls under the
provincial power over property and civil rights, in which case it is invalid.
2
For the reasons that follow, I conclude that the regulation is valid
federal legislation under the fisheries power. The federal power over
fisheries is not confined to conserving fish stocks, but extends to the
management of the fisheries as a public resource. This resource has many
aspects, one of which is to yield economic benefits to its participants and
more generally to all Canadians. The prohibition on the sale of young hooded
and harp seals was designed to curtail a hunt that was damaging the economic
viability of the sealing industry and the fisheries resource in general. This
brings the regulation within the fisheries power.
II. Facts
3
Ford Ward is a licensed fisherman and sealer who resides in La Scie, a
town on the north coast of Newfoundland. During the period in question, he
held a commercial sealing licence issued under the authority of the Fisheries
Act, R.S.C. 1985, c. F-14 , which permitted him to harvest hooded and harp
seals. During March and April of 1996, Ward engaged in the seal hunt off the
northeast coast of Newfoundland in an area known as “the Front”. On the voyage
in question, Ward harvested approximately 50 seals, a number of which included
hooded “blueback” seals.
4
On November 20, 1996, Ward was charged with selling blueback seal pelts
contrary to s. 27 of the Marine Mammal Regulations, SOR/93-56 (the “Regulations”),
which prohibits the sale, trade or barter of whitecoat and blueback seals.
Ward applied to the Supreme Court of Newfoundland, Trial Division, for a
declaration that s. 27 was ultra vires the Parliament of Canada. The
parties agreed to suspend trial proceedings on the charges pending the outcome
of the constitutional challenge.
5
Young harp and hooded seals, respectively referred to as whitecoats and
bluebacks, are named after the colour of their coats. A harp seal is born with
a yellowish-white coat that it retains until it moults, which can occur up to
three weeks after its birth. Unlike the harp seal, a hooded seal moults its
white fur prior to birth while still in the womb. A hooded seal is thus born
with bluish colour fur which it retains from 16 to 30 months, after which the
seal moults for a second time. After the hooded seal has completely moulted
its blue coat, it is no longer considered to be a blueback.
6
Both hooded and harp seals birth their offspring in a 10-day period in
late March of each year. Births at the Front occur on the pack ice, which in
effect becomes a whelping platform. A harp seal will wean either before or
immediately after the moult, and most of the period that a harp seal is a
whitecoat is spent on the pack ice where it is easily recognizable. In
contrast, a blueback seal is weaned between four and six days after birth, and
does not remain on the ice for very long afterwards. Thus, while the harp seal
is a whitecoat for no more than three weeks, most of which is spent on the ice,
the hooded seal can be a blueback for 16 to 30 months, with only days spent on
the ice.
7
After bluebacks leave the ice and take to water, their identification
becomes difficult. The hunt is largely conducted from boats with small crews,
as sealers are not permitted to harvest in the whelping patches on the ice.
The majority of seals are shot with a rifle while they are in the water. The
identification problem arises from the fact that a blueback is not recognizable
as such once it is in the water; its dark head is not distinguishable in colour
or size from the dark heads of other seals. Thus, the seal hunter does not
know for sure whether the seal head bobbing up and down in the water is a
blueback until it is killed and brought aboard the vessel. However, if sealers
are harvesting in a concentration of bluebacks, this fact should quickly become
apparent in the course of the hunt.
8
The past 30 years have seen vigorous anti-sealing campaigns directed
largely at the killing of seal pups at the Front and in the Gulf of St.
Lawrence. In 1983, the Council of the European Communities issued a directive
banning the import of whitecoat and blueback skins. A second directive in 1985
extended the ban to October 1989. The campaigns all but destroyed the
traditional markets for Canadian seal products and threatened to spread to
other fish products, particularly canned fish. In June of 1984, the federal
government established the Royal Commission on Seals and the Sealing Industry
in Canada, also known as the Malouf Commission. In light of the circumstances
surrounding the campaigns and the market threat to other fish products, the
Malouf Commission recommended in its Report that the large-scale commercial
hunting of whitecoats and bluebacks “should not be permitted”, and
non-commercial hunting, “to the extent that it occurs at all, should be
carefully regulated and strictly limited” (Seals and Sealing in Canada
(1986), vol. 1, at p. 40).
9
The government responded by passing new regulations, including the ban
on the sale, trade or barter of whitecoats and bluebacks here at issue.
III. Judgments
10
Wells J. of the Supreme Court of Newfoundland, Trial Division upheld s.
27 of the Regulations as a valid exercise of the federal government’s
fisheries power: (1997), 155 Nfld. & P.E.I.R. 313. He held that the
federal fisheries power extended beyond conservation to more general
socio-economic goals. Curtailing the excessive killing of young seals to
“achieve national objectives” (para. 41) fell within this power. Section 27
was in pith and substance directed at this purpose. The Regulations do
not prohibit the killing of bluebacks because of the difficulty of their
identification in the water. As a practical solution, the federal government
chose to control the killing of the bluebacks and whitecoats by prohibiting
their sale, thus making it largely pointless to harvest them. While
acknowledging that a prohibition on sale may be an imperfect method of
regulation, Wells J. found on the evidence that a prohibition on the killing of
bluebacks would simply not work.
11
The majority of the Newfoundland Court of Appeal, per Marshall
J.A., reversed Wells J. and held s. 27 of the Regulations invalid:
(1999), 183 Nfld. & P.E.I.R. 295. Marshall J.A. rejected the argument that
the purpose of banning the trade in bluebacks is to prevent the killing of baby
seals for their pelts, which is inherently cruel, morally wrong and hence a
proper subject of criminal control. He also rejected the argument that the
prohibition fell under the federal fisheries power. In his view, the fisheries
power was confined to issues of conservation, and legislation enacted for
“socio-economic” reasons was simply too broad a description for division of
powers purposes. The prohibition was the antithesis of conservation, since it
would result in leaving dead seals in the water. Hence it did not fall under
the fisheries power.
12
O’Neill J.A. dissented, holding like Wells J. that the fisheries power
was broad enough to extend beyond conservation to the general regulation of the
fisheries resource for the common good, and that prohibiting sale virtually
eliminated the harvest of young seals. He concluded that the purpose of s. 27
“is not to control the sale of seal pelts for its own sake” (para. 120),
but to discourage commercial taking of bluebacks and whitecoats. In his view,
s. 27 was in pith and substance in relation to the federal fisheries power, and
it was unnecessary to consider whether s. 27 could be classified in relation to
the criminal law power.
IV. Legislation
13
The federal and provincial division of powers is set out in ss. 91 and
92 of the Constitution Act, 1867 . Section 91 grants exclusive
legislative authority to the Parliament of Canada for all matters in relation
to sea coast and inland fisheries (s. 91(12) ), and the criminal law (s.
91(27) ). Section 92 specifies that the legislature in each province may
exclusively make laws in relation to property and civil rights in the province
(s. 92(13) ).
14
The relevant portions of the Regulations made under the authority of s. 43 of the Fisheries
Act are as follows:
2. (1) . . .
“blueback” means a hooded seal that has not moulted its blue
coat;
“whitecoat” means a harp seal that has not begun to moult its
white coat.
. . .
27. No person other than a beneficiary
shall sell, trade or barter a whitecoat or blueback.
V. Issue
15
The issue on this appeal is
whether the federal regulation prohibiting the sale, trade or barter of
blueback seals is a valid exercise of the federal fisheries power or the
federal criminal law power.
VI. Analysis
16
In order to resolve the issue posed by this appeal, we must determine
whether s. 27, in pith and substance, falls under the federal power over
fisheries or the criminal law. The pith and substance analysis asks two
questions: first, what is the essential character of the law? Second, does that
character relate to an enumerated head of power granted to the legislature in
question by the Constitution Act, 1867 ? See Reference re Firearms
Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31; Global Securities Corp. v.
British Columbia (Securities Commission), [2000] 1 S.C.R. 494, 2000 SCC 21;
see also R. v. Morgentaler, [1993] 3 S.C.R. 463; Whitbread v. Walley,
[1990] 3 S.C.R. 1273. We must address these questions first with respect to
the federal fisheries power, second with respect to the federal criminal law
power.
A.
The Pith and Substance of Section 27 of the Regulations in
Relation to the Fisheries Power
(1) The Essential Character of the Law
17
The first task in the pith and substance analysis is to determine the
pith and substance or essential character of the law. What is the true meaning
or dominant feature of the impugned legislation? This is resolved by looking
at the purpose and the legal effect of the regulation or law: see Reference
re Firearms Act, supra, at para. 16. The purpose refers to what the
legislature wanted to accomplish. Purpose is relevant to determine whether, in
this case, Parliament was regulating the fishery, or venturing into the
provincial area of property and civil rights. The legal effect refers to how
the law will affect rights and liabilities, and is also helpful in illuminating
the core meaning of the law: see Reference re Firearms Act, supra,
at paras. 17-18; Morgentaler, supra, at pp. 482-83. The effects
can also reveal whether a law is “colourable”, i.e. does the law in form appear
to address something within the legislature’s jurisdiction, but in substance
deal with a matter outside that jurisdiction?: see Morgentaler, supra,
at p. 496. In oral argument, Ward expressly made clear that he is not
challenging the law on the basis of colourability.
18
The pith and substance analysis is not technical or formalistic: see P.
W. Hogg, Constitutional Law of Canada (loose-leaf ed.), vol. 1, at p.
15-12. It is essentially a matter of interpretation. The court looks at the
words used in the impugned legislation as well as the background and
circumstances surrounding its enactment: see Morgentaler, supra,
at p. 483 ; Reference re Firearms Act, supra, at para. 17. In
conducting this analysis, the court should not be concerned with the efficacy
of the law or whether it achieves the legislature’s goals: see RJR-MacDonald
Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 44, per
La Forest J.; Reference re Firearms Act, supra, at para. 18.
19
Section 27 of the Regulations, read alone, is simply a prohibition
of sale, trade or barter, suggesting it might fall within the provincial rather
than federal domain. However, we cannot stop at this point. We must go
further. What is the purpose of s. 27, and what is its effect? How does it
fit into the regulatory scheme as a whole? The question is not whether
the Regulations prohibit the sale so much as why it is
prohibited.
20
To answer this question, we need go no further than the findings of the
trial judge. Wells J. found that the purpose of s. 27 of the Regulations
was to control the killing of bluebacks and whitecoats by prohibiting their
sale, thus making it largely pointless to harvest them. In other words, the
prohibition on sale, trade or barter is directed not to controlling commerce, but
to preventing the harvesting of these seals.
21
This purpose is clear from both the Regulations as a whole and
the legislative history. As discussed, s. 27 of the Regulations was
adopted in response to the Malouf Commission, which recommended that the commercial
harvest of bluebacks and whitecoats be curtailed. The reaction to this harvest
destroyed the traditional seal markets and was threatening the markets for
Canadian fish products abroad.
22
The method the government chose to curtail the commercial harvest of
bluebacks and whitecoats was a prohibition on their sale, trade or barter.
This, as Wells J. found, was because prohibiting the killing of bluebacks
simply would not have worked. The seals are harvested while in the sea by
hunters on boats. It is impossible to distinguish bluebacks from other seals
in the water. Not until a blueback is brought aboard the boat does the seal
hunter know that he has taken one. When this happens, the seal hunter knows
that the seals in the area are bluebacks. Since he cannot sell, trade or
barter bluebacks, he will stop killing them. This will tend to stop the
commercial harvest of bluebacks, as recommended by the Malouf Commission. As
Wells J. conceded, the method chosen may be imperfect. However, it is the only
practical method for curtailing the commercial taking of bluebacks. In any
event, as noted, the efficacy of the law is not a valid consideration in the
pith and substance analysis.
23
Situating s. 27 in its context supports the view that it is neither
directed at property nor at trade, but at curtailing the commercial hunting of
bluebacks and whitecoats. The Regulations are enacted under the
authority of s. 43 of the Fisheries Act , which permits the government to
make regulations “for the proper management and control of the sea‑coast
and inland fisheries” and “respecting the conservation and protection of
fish” (emphasis added). This notion of “management and control” of the
fisheries is again reflected in s. 3 of the Regulations. The Regulations
as a whole are concerned not with property, but with generally regulating the
fishery, including details as to who may kill (with exemptions for Indians,
Inuk and “beneficiaries” under certain aboriginal claim settlements), methods
of killing, quotas and seasons for killing, allowable fishing areas, reporting
duties, and provisions for observation of the seal fishery. Included are
restrictions on the disposition of the edible parts of cetaceans or walruses,
narwhal tusks and the prohibition on the sale, trade or barter of whitecoats
and bluebacks at issue here. In short, the prohibition we are concerned with
exists in the context of a scheme that is concerned with the overall
“management and control” of the marine fisheries resource.
24
I conclude that Parliament’s object was to regulate the seal fishery by
eliminating the commercial hunting of whitecoats and bluebacks through a
prohibition on sale, while at the same time allowing for limited harvesting of
these animals for non-commercial purposes. Stated another way, the “mischief”
that Parliament sought to remedy was the large-scale commercial hunting of
whitecoats and bluebacks. This was done to preserve the economic viability of
not only the seal fishery, but the Canadian fisheries in general.
25
Turning to the effects of the legislation, s. 27 affects the legal
rights of its subjects by prohibiting the sale of whitecoats and bluebacks that
have otherwise been legally harvested. Ward submits that the legal effect of
s. 27 is to regulate the property and processing of a harvested seal product.
The argument amounts to saying that because the legislative measure is a
prohibition on sale, it must be in pith and substance concerned with the
regulation of sale. This confuses the purpose of the legislation with the
means used to carry out that purpose. Viewed in the context of the legislation
as a whole and the legislative history, there is nothing to suggest that
Parliament was trying to regulate the local market for trade of seals and seal
products. Ward’s argument that s. 27 is directed at regulating an already
processed product because the seals are skinned and the meat preserved on the
vessel similarly confuses the purpose of s. 27 with the means chosen to achieve
it.
26
Ward also argues that the “close time” variation method would better
avoid newborn seals being killed on the ice and the negative reaction the
government was seeking to avoid than a prohibition on sale. This argument also
fails. As previously mentioned, an inquiry into efficacy does not advance the
pith and substance inquiry. The purpose of legislation cannot be challenged by
proposing an alternate, allegedly better, method for achieving that purpose.
27
Finally, Ward submits that the purpose of s. 27 -- saving Canada’s
markets for seal products -- had already eroded by the time it was introduced
in 1993, citing the Malouf Commission in support. This is a variant on the
efficacy argument. It was for the government to determine if a problem existed
and if the means chosen would address it. Moreover, the evidence shows that
the danger of damage to other sea products, like canned fish, continued to
exist at the time the Regulations were adopted.
28
I conclude that the s. 27 prohibition on sale is essentially concerned
with curtailing the commercial hunting of whitecoats and bluebacks for the
economic protection of the fisheries resource. As such, it is in pith and
substance concerned with the management of the Canadian fishery.
(2) Does the Pith and Substance of Section 27
of the Regulations Fall within the Federal Fisheries Power?
29
Having determined the pith and substance of s. 27 , we must ask whether
it fits within the federal fisheries power. This requires us to consider the
scope of the fisheries power and its relationship to the provincial power over
property and civil rights. More precisely, does the fisheries power extend
beyond measures relating to conservation to the management of the resource to preserve
its economic viability?
30
Before examining the scope of the federal fisheries power in relation to
property and civil rights, it may be useful to consider the principles that
guide the exercise. They are well known and I content myself with briefly
summarizing them.
1. The Constitution must be
interpreted flexibly over time to meet new social, political and historic
realities: see Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p.
155-56; see also Edwards v. Attorney-General for Canada, [1930] A.C. 124
(P.C.); Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para.
52; Reference re Provincial Electoral Boundaries (Sask.), [1991] 2
S.C.R. 158, at p. 180; Law Society of Upper Canada v. Skapinker, [1984]
1 S.C.R. 357, at p. 365; Attorney General of British Columbia v. Canada
Trust Co., [1980] 2 S.C.R. 466, at p. 478; R. v. Big M Drug Mart Ltd.,
[1985] 1 S.C.R. 295, at pp. 343-44; Hogg, supra, at p. 15-45.
2.
The principle of federalism must be respected: see Reference re Secession
of Quebec, supra, at para. 55. Power is shared by two orders of
government, each autonomous in developing policies and laws within their own
jurisdiction subject to the courts which “control the limits of the respective
sovereignties”: see Northern Telecom Canada Ltd. v. Communication Workers of
Canada, [1983] 1 S.C.R. 733, at p. 741. Classes of subjects should be
construed in relation to one another: see Reference re Waters and
Water-Powers, [1929] S.C.R. 200, at p. 216, per Duff J. In
cases where federal and provincial classes of subjects contemplate overlapping
concepts, meaning may be given to both through the process of “mutual
modification”: see Citizens Insurance Co. of Canada v. Parsons (1881), 7
App. Cas. 96 (P.C.); see also W. R. Lederman, Continuing Canadian
Constitutional Dilemmas (1981), at p. 274. Classes of subjects should not
be construed so broadly as to expand jurisdiction indefinitely: see Hogg, supra,
at p. 18-4, in the criminal law context; compare Proprietary Articles Trade
Association v. Attorney‑General for Canada, [1931] A.C. 310 (P.C.),
with Canadian Federation of Agriculture v. Attorney‑General for Quebec,
[1951] A.C. 179 (P.C.) (the “Margarine Reference”).
31
With these principles in mind – flexibility and respect for the proper
powers of both the federal government and the provinces – I approach the
question at hand, the scope of the federal fisheries power.
32
Three different views on the scope of the federal fisheries power are
presented:
1. The federal fisheries power
extends only to conservation measures directed to preserving numbers (the
conservation theory, espoused by the majority of the Newfoundland Court of
Appeal).
2. The fisheries power extends only
to the management of the fisheries resource in its natural state to the point
of harvest and sale. This would include setting the permissible times and
methods of extracting the resource, but it would not extend to the regulation
of sale, processing and “markets” (the “point of sale” theory, espoused by
Ward).
3. The fisheries power extends
beyond conservation to measures intended to carry out economic goals and
policies associated with the fisheries as a resource (the economic policy
theory, advanced by the federal Crown).
33
Only the last theory is capable of supporting a regulation directed in
pith and substance at curtailing the commercial hunting of young seals to
protect the economic viability of the resource from retaliatory boycotts. The
issue is therefore whether this theory of the fisheries power is valid. The
jurisprudence suggests that it is.
34
First, the preponderance of authority suggests that the fisheries power
is not confined to conservation, nor to pre-sale activities, but extends more
broadly to maintenance and preservation of the fishery as a whole, including
its economic value. In The Queen v. Robertson (1882), 6 S.C.R. 52,
Ritchie C.J. described the fisheries power as extending “to subjects affecting
the fisheries generally, tending to their regulation, protection and
preservation”. Accordingly, Parliament’s power extended to “all such general
laws as enure as well to the benefit of the owners of the fisheries as to the
public at large, who are interested in the fisheries as a source of national or
provincial wealth” (pp. 120-21).
35
In Reference re Certain Sections of the Fisheries Act, 1914,
[1928] S.C.R. 457 (aff’d [1930] A.C. 111 (P.C.)), Newcombe J. cited, at p. 472,
the definition of a fishery given in Patterson on the Fishery Laws
(1863), at p. 1, as “the right of catching fish in the sea, or in a particular
stream of water”. But he went on to cite the broader “leading definition” from
J. A. H. Murray’s A New English Dictionary (1888), defining fishery in
terms of the “business, occupation or industry of catching fish or of taking
other products of the sea or rivers from the water”. Davey C.J.B.C., in Mark
Fishing Co. v. United Fishermen & Allied Workers’ Union (1972), 24
D.L.R. (3d) 585 (B.C.C.A.), said of this: “The point of Patterson’s definition
is the natural resource, and the right to exploit it, and the place where the
resource is found, and the right is exercised” (p. 592). See also International
Fund for Animal Welfare, Inc. v. Canada, [1987] 1 F.C. 244 (T.D.) (division
of powers issue aff’d [1989] 1 F.C. 335 (C.A.)).
36
The theme that the fisheries power refers to the resource was affirmed
by this Court, per Laskin C.J. (dissenting, but not on this point) in Interprovincial
Co-Operatives Ltd. v. The Queen, [1976] 1 S.C.R. 477, who wrote, at p. 495,
that the federal fisheries power “is concerned with the protection and
preservation of fisheries as a public resource”, extending even to the
“suppression of an owner’s right of utilization”.
37
Again, in Northwest Falling Contractors Ltd. v. The Queen, [1980]
2 S.C.R. 292, Martland J., speaking for the Court, recognized that the
fisheries power involved legislating in relation to fisheries as a resource (at
p. 298):
. . . federal legislative jurisdiction under s. 91.12 of the British
North America Act is not a mere authority to legislate in relation to
“fish” in the technical sense of the word. The judgments in this Court and in
the Privy Council have construed “fisheries” as meaning something in the nature
of a resource.
38
More recently, in Comeau’s Sea Foods Ltd. v. Canada (Minister of
Fisheries and Oceans), [1997] 1 S.C.R. 12, Major J. noted that the
Minister’s duty under the Fisheries Act extends beyond
conservation to management and development of the fishery for the benefit of
the public, stating (at para. 37):
Canada’s fisheries are a “common property resource”, belonging to all
the people of Canada. Under the Fisheries Act , it is the Minister’s
duty to manage, conserve and develop the fishery on behalf of Canadians in the
public interest (s. 43 ).
39
In Gulf Trollers Assn. v. Canada (Minister of Fisheries and Oceans),
[1987] 2 F.C. 93 (rev’g [1984] 2 F.C. 398 (T.D.)), the Federal Court of Appeal
directly confronted whether the federal fisheries power is confined to
conservation of the fish stock. At issue were federal regulations for closing
times that favoured sports fishers over commercial fishers. At trial, Collier
J. held that the fisheries power did not extend to the general management and
control of the fisheries for the benefit of Canadians beyond mere protection
and preservation of the resource. The Federal Court of Appeal reversed the
decision. Marceau J.A. expressed the view that “Parliament may manage the
fishery on social, economic or other grounds, either in conjunction with steps
taken to conserve, protect, harvest the reserve or simply to carry out social,
cultural or economic goals and policies” (p. 106).
40
Moreover, the courts have rejected the view that the federal power
extends only to management of fisheries in their natural state and terminates
prior to the point of sale. In British Columbia Packers Ltd. v. Canada
Labour Relations Board, [1976] 1 F.C. 375 (C.A.) (appeal to S.C.C.
dismissed on other grounds, [1978] 2 S.C.R. 97), Jackett C.J. remarked that the
fisheries power does not extend to the “making of laws in relation to things
reasonably incidental to carrying on a fishing business, such as labour
relations and disposition of the products of the business, when such things do
not in themselves fall within the concept of ‘fisheries’” (p. 385 (emphasis
deleted)). However, it is clear that aspects of sale that are necessarily
incidental to the exercise of the fisheries power fall within federal
jurisdiction: see R. v. N.T.C. Smokehouse Ltd. (1993), 80 B.C.L.R. (2d)
158 (C.A.); R. v. Saul (1984), 10 D.L.R. (4th) 736 (B.C.S.C.); R. v.
Twin (1985), 23 C.C.C. (3d) 33 (Alta. C.A.). The rationale is that the
federal government may limit sales in order to prevent injurious exploitation
of the resource. It therefore appears that no bright line can be drawn at the
point of sale for the purposes of defining the scope of the federal fisheries
power.
41
These cases put beyond doubt that the fisheries power includes not only
conservation and protection, but also the general “regulation” of the
fisheries, including their management and control. They recognize that
“fisheries” under s. 91(12) of the Constitution Act, 1867 refers to the
fisheries as a resource; “a source of national or provincial wealth” (Robertson,
supra, at p. 121); a “common property resource” to be managed for the good
of all Canadians (Comeau’s Sea Foods, supra, at para. 37). The
fisheries resource includes the animals that inhabit the seas. But it also
embraces commercial and economic interests, aboriginal rights and interests,
and the public interest in sport and recreation.
42
Although broad, the fisheries power is not unlimited. The same cases
that establish its broad parameters also hold that the fisheries power must be
construed to respect the provinces’ power over property and civil rights under
s. 92(13) of the Constitution Act, 1867 . This too is a broad,
multi-faceted power, difficult to summarize concisely. For our purposes, it
suffices to note that the regulation of trade and industry within the province
generally (with certain exceptions) falls within the province’s jurisdiction
over property and civil rights: see Citizens Insurance, supra;
see also Attorney-General for Canada v. Attorney-General for Alberta,
[1916] 1 A.C. 588 (P.C.).
43
Thus we have before us two broad powers, one federal, one provincial.
In such cases, bright jurisdictional lines are elusive. Whether a matter best
conforms to a subject within federal jurisdiction on the one hand, or
provincial jurisdiction on the other, can only be determined by examining the
activity at stake. Measures that in pith and substance go to the maintenance
and preservation of fisheries fall under federal power. By contrast, measures
that in pith and substance relate to trade and industry within the province
have been held to be outside the federal fisheries power and within the
provincial power over property and civil rights.
44
The cases bear this out. Measures whose essence went to the regulation
of fish processing and labour relations in the fishery have been held to fall
outside the federal power. On the other hand, measures primarily related to
the regulation of the fisheries resource but incidentally touching the sale of
fish have been upheld as valid federal legislation.
45
In Reference re Certain Sections of the Fisheries Act, supra,
this Court held that the federal power to regulate the fisheries does not
extend to the licensing of fish canneries or to the regulation of trade
processes once the resource had been extracted and converted into a commodity.
Newcombe J. noted that the power to control the sale or storage of fish, or the
manufacture and sale of fishing equipment might be used to manage the resource,
but on the facts of the case there was an insufficient link between the
impugned legislation and the fisheries power (p. 472).
46
Similarly, labour relations in the fisheries were held to be matters
essentially falling within the provincial power to regulate business in the
province and outside the federal fisheries power: see British Columbia
Packers and Mark Fishing, supra; see also Barry’s Ltd. v.
Fishermen, Food and Allied Workers’ Union (1993), 104 Nfld. & P.E.I.R.
277 (Nfld. C.A.).
47
These cases suggest that measures essentially directed to regulating
fish processing and labour relations fall under the provincial power over property
and civil rights, and outside the federal fisheries power. If the activity is
in pith and substance a matter of trade and industry within the province, it
will not fall under the federal fisheries power merely because some aspects of
the activity touch upon the fishery. Conversely, measures that are in pith and
substance directed to the fishery fall within the federal fisheries power even
though they possess aspects relating to property and civil rights.
48
It follows that the federal fisheries power is not confined to measures
directed at conserving the resource, nor limited by the distinction between
control of the resource in its natural state and at “point of sale”. While
Parliament must respect the provincial power over property and civil rights,
the approach to be adopted is not simply drawing a line between federal and
provincial powers on the basis of conservation or sale. The issue is rather
whether the matter regulated is essentially connected -- related in pith and
substance -- to the federal fisheries power, or to the provincial power over
property and civil rights.
49
We earlier established that the regulation here at issue, while on its
face a simple ban on sale, trade or barter, is in pith and substance concerned
with curtailing commercial hunting of young seals to preserve the fisheries as
an economic resource, vitally connected to protecting the economic viability of
the Canadian fishery as a whole. It follows that s. 27 is a valid federal
measure. This result fully respects the constitutional right of the provinces
to control property and civil rights. If the essential character of the
measure was directed toward regulating business or property within the
province, it would be in pith and substance a matter of property and civil
rights and outside federal jurisdiction. However, that is not the case.
Section 27 of the Regulations is thus a valid exercise of the federal
fisheries power.
B. Whether Section 27 of the
Regulations Is in Relation to the Criminal Law
50
Having concluded that the challenged legislation is constitutionally
valid under the federal fisheries power, we need not consider whether it might
also be valid under the criminal law power. However, in view of the fact that
the issue was fully argued, I comment briefly on it.
51
Although the criminal law power is broad, it is not unlimited: see Reference
re Firearms Act, supra, at para. 30. Legislation may amount to
criminal law if it possesses three components: a prohibited act, a penalty and
a valid criminal law purpose: see Reference re Firearms Act,
RJR-MacDonald and Margarine Reference, supra; see also R.
v. Hydro-Québec, [1997] 3 S.C.R. 213. Examples of a criminal law purpose
include public peace, order, security, health and morality: see Margarine
Reference, supra. Courts also look to whether the particular law
has traditionally been held to be criminal law: see Morgentaler,
supra.
52
In this case, a prohibited act (i.e. the sale of bluebacks and
whitecoats) and a penalty (contained in s. 78 of the Fisheries Act ), are
present. However, no valid criminal law purpose has been established.
53
Two points arise for consideration: first, is the protection of animals
against killing in the circumstances here disclosed capable of constituting a criminal
purpose? Second, if so, then is the impugned legislation directed to this
purpose? The Criminal Code, R.S.C. 1985, c. C-46 , contains prohibitions
against cruelty to animals, and I am prepared to assume without deciding that
the federal criminal law powers could extend to prohibitions on the killing and
manner of killing of animals like seals as a matter of public peace, order,
security, health or morality. However, I see nothing in the record that
supports the view that s. 27 in fact possesses such a criminal law purpose.
54
The record indicates that there was public disapproval towards the
commercial hunting of baby seals in general and the clubbing of baby seals in
particular. It was this disapproval that manifested itself during the
anti-sealing campaign, leading to the European Community import ban, market
boycotts and the establishment of the Malouf Commission to study the sealing
industry.
55
However, nothing indicates that it was ethical considerations that led
to the s. 27 prohibition. Public peace, order, security and morality played no
direct role in its adoption. Indeed, the Malouf Commission suggested that the
killing of young seals through clubbing and shooting was not inhumane. It is
also of note that s. 27 prohibits the sale of whitecoats and bluebacks, not
their killing. If the mischief Parliament sought to remedy was the killing of
young seals on ethical grounds, one would expect to find an outright
prohibition on killing.
56
Without suggesting that measures related to the treatment or killing of
animals could not have a valid criminal law purpose, it is simply not made out
in this particular case. The wording of the legislation along with the
legislative history suggest that the legislation was enacted to manage the fisheries
by eliminating the large-scale killing and commercial hunting of whitecoats and
bluebacks, and not to criminalize their killing or sale.
VII. Conclusion
and Disposition
57
I conclude that s. 27 of the Regulations, prohibiting the sale,
trade or barter of whitecoat and blueback seals, is a valid measure under the
federal fisheries power. I would therefore allow the appeal, restore the
decision of the trial judge, and find that s. 27 of the Regulations is a
valid exercise of Parliament’s jurisdiction under sea coast and inland
fisheries contained in s. 91(12) of the Constitution Act, 1867 .
58
I would answer the constitutional questions as follows:
1. Is
s. 27 of the Marine Mammal Regulations, SOR/93-56, within the legislative
authority of the Parliament of Canada as being legislation pertaining to the
sea coast and inland fisheries under s. 91(12) of the Constitution Act, 1867 ?
Yes.
2. Is
s. 27 of the Marine Mammal Regulations within the legislative authority
of the Parliament of Canada as being legislation pertaining to the criminal law
under s. 91(27) of the Constitution Act, 1867 ?
No.
Appeal allowed.
Solicitor for the appellant: The Attorney General
of Canada, Halifax.
Solicitors for the respondent: O’Dea, Earle, St.
John’s.
Solicitor for the intervener the Attorney General
of Quebec: The Department of Justice, Sainte-Foy.
Solicitor for the intervener the Attorney General
for Alberta: Alberta Justice, Edmonton.
Solicitor for the intervener the Attorney General
of Newfoundland: The Attorney General of Newfoundland, St. John’s.
Solicitors for the intervener the International
Fund for Animal Welfare Inc.: Ruby & Edwardh, Toronto.