T-457-95
OTTAWA, ONTARIO,
OCTOBER 4, 1996
PRESENT: THE
HONOURABLE MR. JUSTICE J.E. DUBÉ
BETWEEN:
CHARLES-AIMÉ
DUGUAY,
Applicant,
-
and -
THE
DIRECTOR GENERAL, QUEBEC REGION,
Department
of Fisheries and Oceans Canada,
attention
of Mr. Bernard A. Leblanc,
Respondent,
-
and -
ATTORNEY
GENERAL OF CANADA,
Mis
en cause.
O
R D E R
For
the reasons set out in Denis Duguay and The Director General, Quebec Region
and Attorney General of Canada, T-779-94 (copy attached hereto), this
application for judicial review is allowed.
J.
Certified true
translation
Christiane Delon
T-268-95
OTTAWA, ONTARIO,
OCTOBER 4, 1996
PRESENT: THE
HONOURABLE MR. JUSTICE J.E. DUBÉ
BETWEEN:
JACQUES
COLLIN,
Applicant,
-
and -
THE
DIRECTOR GENERAL, QUEBEC REGION,
Department
of Fisheries and Oceans Canada,
attention
of Mr. Bernard A. Leblanc,
Respondent,
-
and -
ATTORNEY
GENERAL OF CANADA,
Mis
en cause.
O
R D E R
For
the reasons set out in in Denis Duguay and The Director General, Quebec
Region and Attorney General of Canada, T-779-94 (copy attached hereto),
this application for judicial review is allowed.
J.
T-779-94
BETWEEN:
DENIS
DUGUAY,
Applicant,
-
and -
THE
DIRECTOR GENERAL, QUEBEC REGION,
Department
of Fisheries and Oceans Canada,
attention of Mr. Denis Martin,
Respondent,
-
and -
ATTORNEY
GENERAL OF CANADA,
Mis
en cause.
REASONS
FOR ORDER
DUBÉ J.:
Through
this application for judicial review the applicant is asking that the decision
of the respondent (“the director general”) dated March 7, 1994, issuing a crab
fishing licence to the applicant with a decrease of two metric tonnes, be quashed
and declared null and of no effect.
The
applicant is a fisherman by profession and captain of the fishing boat “Meltem”.
In 1993 he held a licence authorizing him to fish for snow crab. On June 18,
1993, while he was landing his cargo of crabs, an observer employed by the
respondent contended that he and two of his employees had failed to weigh three
trays of snow crabs weighing, she said, between 180 and 200 pounds. In the wake
of this statement, an offence report was written up by an officer of the
Department of Fisheries and Oceans Canada (“the Department”) alleging that the
applicant had failed to comply with the conditions of his fishing licence by
concealing part of his catch, thereby contravening paragraphs 22(1)(n) and
22(1)(p) of the Fisheries Regulations (“the Regulations”).
On
March 7, 1994 the applicant was notified of the aforesaid decision by a letter
from the director general. He alleges that notwithstanding his consistent
denials of the offences alleged against him, and his customary compliance with
the Act and the regulations, he was never given a meaningful hearing or
opportunity to call his own witnesses or cross-examine the respondent’s
witnesses.
The
applicant’s argument is based on five questions that he raises in relation to the
Minister’s powers and the enforcement process established by the Department.
The questions are the following:
1.Is the Minister of Fisheries and Oceans empowered under
the Fisheries Act and the Fisheries Regulations (SOR/93-52) to
impose penalties in relation to a fishing licence?
2.If the Minister of Fisheries and Oceans is empowered to
exercise such authority in relation to a fishing licence, may this authority be
exercised by officials under the Act and the Regulations?
3.Does the enforcement process established by the
Department of Fisheries and Oceans infringe the applicant’s constitutional
rights as guaranteed by section 7 of the Canadian Charter of Rights and
Freedoms?
4.Is the enforcement process established by the
Department of Fisheries and Oceans in breach of subsection 2(e) of the Canadian
Bill of Rights?
5.Finally, if this enforcement process is based on some
discretionary authority, is the exercise of such authority unreasonable in the
case at bar?
In
relation to the first question, which in my opinion is the fundamental basis of
this application, the applicant submits that the Fisheries Act (“the
Act”) and Regulations thereunder grant the Minister certain powers to issue,
suspend or cancel fishing licences but do not assign him any authority to issue
a penalty. The relevant provisions are sections 7 and 9 of the Act and sections
22 and 24 of the Regulations:
7. (1) Subject to subsection (2), the Minister may, in his absolute
discretion, wherever the exclusive right of fishing does not already exist by
law, issue or authorize to be issued leases and licences for fisheries or
fishing, wherever situated or carried on.
(2) Except as otherwise provided in this Act, leases or licences for any
term exceeding nine years shall be issued only under the authority of the
Governor in Council....
9. The Minister may suspend or cancel any lease or licence issued under
the authority of this Act, if
(a) the Minister has ascertained that the operations under the lease or
licence were not conducted in conformity with its provisions; and
(b) no proceedings under this Act have been commenced with respect to
the operations under the lease or licence....
22. (1) For the proper management and control of fisheries and the
conservation and protection of fish, the Minister may specify in a licence any
condition that is not inconsistent with these Regulations or any of the
Regulations listed in subsection 3(4) and in particular, but not restricting
the generality of the foregoing, may specify conditions respecting any of the
following matters:
(a) the species of fish and quantities thereof that are permitted to be
taken or transported;...
(n) verification by an observer of the weight and species of any fish
caught and retained;
24. (1) Where considering suspending or cancelling a lease or licence
under section 9 of the Act, the Minister shall notify the holder thereof in
writing by
(a) sending a notice by registered mail to the holder; or
(b) having a fishery officer personally deliver a notice to the holder
or, if the holder cannot conveniently be found, leave a notice for the holder
at the holder's last known place of abode with any person who resides therein
who appears to be at least 16 years of age....
Under
section 7 of the Act, the Minister may therefore, at his absolute discretion,
issue leases. Under section 9 of the Act, he may suspend or cancel leases
previously issued, but on two conditions: that he has ascertained a breach of
their provisions and that no proceedings have been commenced in this regard. In
the case at bar, no proceedings were commenced and the Minister ascertained a
breach of the lease provisions.
It should be noted
at the outset that the director general’s decision that was sent to the
applicant relies on “[Translation]
the powers conferred on my by section 7 of the Act”. But section 7 of the Act
allows leases to be issued or not issued but does not authorize penalties. This
means, therefore, that the Minister, in this instance, used the issuing of the
licence for the 1994 season as a pretext for imposing a reduction in the catch.
This reduction is characterized in the decision as a “sanction”.
The
respondent, for its part, replies that under section 7 of the Act the Minister
has absolute discretion to issue licences and fishing permits and that this
authority includes the power to attach conditions that the Minister considers
appropriate. He also relies on section 9 of the Act, which allows the Minister
to cancel leases, and section 43 of the Act, which authorizes the Governor in
Council to make regulations under the Act, in particular with respect to the
landing of fish and the conditions attached to leases. Section 22 of the
Regulations allows the Minister to specify in a licence any conditions that are
not inconsistent with the Regulations in respect to the quantities of fish that
may be taken and the verification by an observer of the weight and species of
any fish caught and retained. Section 10 of the Regulations provides that a
licence ordinarily expires at the expiration of the year for which it was
issued.
The
respondent therefore urges the Court to find that these provisions as a whole
authorize the Minister to issue or not issue a fishing licence on the
conditions he considers appropriate, to alter the licence conditions to ensure
the conservation of fish, and to suspend a licence where there has been a
breach of a condition of the licence. Where a condition has been breached, the
Minister may, at his discretion, commence criminal proceedings in the courts of
criminal law, as provided by the Act, or issue a new licence on such conditions
as he considers appropriate.
My
colleague MacKay J., in a recent decision dated August 13, 1996, Douglas
Lloyd Matthews v. Attorney General of Canada, T-945-95, discussed the
Minister’s authority under section 7 of the Act to impose a penalty for
violating the conditions of a lease. The penalty in question was to refuse to
issue a licence for the first three weeks of the 1995 fishing season and to
reduce the quota for snow crab catches by 50 per cent. The judge held that the
Minister had exceeded his jurisdiction under section 7 of the Act by imposing
the penalty in question, given that the purpose of this penalty was to punish
the applicant for violations of the Act committed by him in 1994. It is worth
reproducing the highly relevant paragraph in his decision:
Aside from any question of procedural fairness, in my view, the Minister
here exceeded the jurisdiction granted under s. 7 of the Act by refusing
to grant the applicant a snow crab fishing licence for the first three weeks
and reducing his quota by 50% for the 1995 season when the purpose of those
limitations was to impose a penalty for violations of the Act committed
by the applicant in 1994. There can be no doubt in this case that the purpose
of the limitations was to impose a penalty.
If the
Minister wished to impose a penalty for an offence by the applicant, he had an
obligation to proceed in a Provincial Court under sections 78 et seq. of
the Act. That is no doubt what Parliament intended by providing in section 9(b)
of the Act that the Minister may not suspend or cancel any lease or licence if
a proceeding under this Act has already been commenced. In other words, the
Minister may issue a licence under section 7 of the Act and suspend it under
section 9 of the Act. If he wants to impose a penalty, he must proceed in
accordance with the precise code stipulated by Parliament.
It is
true that the Governor in Council has provided in section 22 of the Regulations
a range of conditions that the Minister may specify on a licence (from
paragraph (a) to paragraph (z.1)). But it did not provide in that
section penalties for breaches of these provisions. On the other hand,
Parliament stipulated penalties for offences in sections 78 et seq. of
the Act.
MacKay
J. distinguished Matthews from the Federal Court of Appeal’s decision in
Everett v. Canada (Minister of Fisheries and Oceans) in the following words:
In light of that stated purpose, in my view, this case is
distinguishable from the circumstances in Everett v. Canada (Minister of
Fisheries and Oceans) (1994), 169 N.R. 100 (F.C.A.), upon which the
respondent here relies. In that case the Minister had refused to grant the
applicant a fishing licence in 1993 because of violation of his licence, said
to have occurred in 1990 when his actual landings, not properly reported, were
found to have exceeded his quota by more than 100%. In Everett, the
issue of whether the Minister had jurisdiction pursuant to s. 7 of the Act
to refuse to issue a licence in order to impose a penalty was not directly
before the Court, at least as I read the decisions of my colleague Mr. Justice
Denault, the motions judge, at (1993), 63 F.T.R. 279, and of the Court of
Appeal, supra. In that case the Minister's decision was said to be made
in light of the record before him which indicated serious disregard for
conservation principles, and for “the reason that the misreporting of catches
and the exceeding of quotas were very serious conservation and control offenses.”
Madame Justice Desjardins, in Everett, stated (at 169 N.R. 104)
that the proceedings before the Minister, i.e. considering a departmental
recommendation that a license not be issued, were “not penal in character.”
The Minister was entitled to decide the matter on a balance of probabilities
and no evidence was there tendered by the applicant. In that case Mr. Justice
MacGuigan pointed out that there was no argument before the Court contesting
the DFO report of very substantial overfishing, well in excess of his quota, by
the applicant, which the Minister was entitled to take into account in a
licensing decision. In this case, however, while it may be argued that the
decision on behalf of the Minister was similar in general effect, though
somewhat less drastic than that in Everett, it is clear from the letter
of April 12, 1995, that the decision on behalf of the Minister in this case was
intended to be penal in nature.
In Everett,
the Minister refused to issue a licence under section 7 of the Act. His
jurisdiction to do so as a penalty was not raised. It is clear that in the case
tried before MacKay J., as well as in the instant case, what the director
general was pronouncing in his decision was a penal sanction. In his letter to
the applicant Duguay he told him he had violated the Regulations by concealing
from the observer part of his crab catch and that accordingly he would be
penalized for the following season (1994) by a decrease in quota of two metric
tonnes. It is common ground that such a penalty would inflict a financial loss
of several thousand dollars on the applicant.
In a pamphlet
entitled “[Translation] Change in
the Fisheries Act”, the Department of Fisheries and Oceans offers a
“modernization proposal”. The following passage, entitled “[Translation] Appeals pertaining to
administrative sanctions and licences”, illustrates quite clearly the
Department’s intentions:
[Translation] In the past,
fishing offences (violations of the Fisheries Act, the regulations
thereunder and the conditions governing licences) have always been penalized
through the courts of criminal law. This is a slow and costly process that does
not meet the needs of the DFO or the industry. In recent years, the Department
has resorted increasingly to departmental sanctions in relation to licences.
Although these sanctions are a strong disincentive to illegal fishing, some
components of the industry have criticized this process because of the lack of
hearings and the alleged inability of the Department to be completely impartial.
It
should be noted that the applicant in the case at bar is specifically
complaining that he was sentenced to the aforesaid penalty, a very expensive
one for him, without having had an opportunity to confront his accusers, a
right he would have been able to insist on in a court of criminal law.
It is
clear on the face of the passage cited above that the Department is using
ministerial sanctions to usurp the role of the courts of criminal law, in
violation of the provisions of the Act. In doing so, it is relying on section 7
of the Act, which allows the Minister to issue leases but not to impose
sanctions.
Accordingly,
since I would follow my colleague’s decision that the Minister is not empowered
under the Act to impose penal sanctions in relation to fishing licences, it is
unnecessary to consider the other grounds in support of the application.
The application is
allowed. The respondent’s decision of March 7, 1994 is quashed and declared
void and of no effect.
O T T A W A
October 4, 1996
J.
Certified true
translation
Christiane Delon
Email this Content