Moore v. Johnson et al., [1982] 1 SCR 115

Supreme Court of Canada

Moore v. Johnson et al., [1982] 1 S.C.R. 115

Date: 1982-01-26

Patrick Moore (Third Defendant) Appellant;

and

Morrissey Johnson (Plaintiff) Respondent;

and

Gordon W. Seabright and Arthur E. Cramm (First Defendants) Respondents;

and

The Attorney General for the Province of Newfoundland (Second Defendant) Respondent;

and

The Attorney General of Canada (Intervener).

and between

Patrick Moore (Respondent) Appellant;

and

Ulf Snarby, John Lundrigan and James Gillett (Respondents) Respondents.

File No.: 15971.

1981: October 7; 1982: January 26.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR NEWFOUNDLAND

Constitutional law—Newfoundland Terms of Union—Continuing pre-Confederation Newfoundland legislation in federal sphere—Federal regulation in force—Prosecution pursuant to provincial Act—Whether or not provincial Act made ineffective by federal legislation—British North America Act, 1949, R.S.C 1970, Appendix II, Terms 3, 18(1),(2)—The Seal Fishery Act, R.S.Nfld. 1970, c. 347, s. 15—Seal Protection Regulations, SOR/66‑235, as amended, s. 24.

This was an appeal from the Newfoundland Court of Appeal’s dismissal of appeals from orders for the issuance of writs of prohibition directed to certain provincial court magistrates prohibiting the prosecution of

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respondents from breaches of s. 15 of The Seal Fishery Act, (a pre-Confederation Newfoundland statute), on the ground that the provincial courts were without jurisdiction justifying the prosecutions. At issue was whether or not s. 15 of The Seal Fishery Act had been repealed, abolished or altered by the Parliament of Canada, acting according to its exclusive legislative authority over “Sea Coast and Inland Fisheries” and s. 18(1) of the B.N.A. Act, 1949, by making Regulation 24 of the Seal Protection Regulations.

Held: The appeal should be dismissed.

Section 15 of The Seal Fishery Act is not within Newfoundland’s legislative authority under s. 92 of the B.N.A. Act. While some sections of the Act could be construed as being primarily directed towards the regulation of a trade or calling, the Act generally, and s. 15 regulating the killing of seals, fell within Parliament’s exclusive legislative competence under s. 91(12) of the B.N.A. Act—Sea Coast and Inland Fisheries. Regulation 24 of the Seal Protection Regulations expressed the particular law under consideration, and, while not expressly repealing s. 15 of The Seal Fishery Act, altered it so as to make it ineffective as part of the pre-Confederation law of Newfoundland continuing in force pursuant to s. 18(1) of the B.N.A. Act, 1949.

Re Bowater’s Newfoundland Pulp and Paper Mills, Limited, [1950] S.C.R. 608, referred to.

APPEAL from a judgment of the Newfoundland Court of Appeal (1979), 107 D.L.R. (3d) 749, 24 Nfld. & P.E.I.R. 227, 65 A.P.R. 227, dismissing appeals from orders for the issuance of writs of prohibition directed to certain provincial court magistrates prohibiting the prosecution of respondents. Appeal dismissed.

Thomas G. Heintzman, Q.C., for the appellant.

Philip J. Lewis, Q.C., and John R. Sinnott, for the respondent Morrissey Johnson.

Edward Roberts, Q.C., and James Oakley, for the respondents Ulf Snarby, John Lundrigan and James Gillett.

James A. Nesbitt, Q.C., for the respondent the Attorney General of Newfoundland.

W.I.C. Binnie, Q.C., for the intervener the Attorney General of Canada.

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The judgment of the Court was delivered by

RITCHIE J.—This is an appeal brought by leave of this Court from a judgment of the Court of Appeal of Newfoundland dismissing the appeals asserted from orders granted by Mahoney J. of the Trial Division of that province whereby he had ordered that writs of prohibition should issue directed to certain magistrates of the provincial court prohibiting the prosecution of the respondents herein for breaches of s. 15 of The Seal Fishery Act, R.S.Nfld. 1970, c. 347, on the ground that there was no jurisdiction in the provincial courts to justify such prosecutions.

The information in question alleged of the respondents:

(1) That they, on or about the 12th day of March 1978 at approximately 50 miles north of Cartwright, Labrador, in this Province, did kill seals on a Sunday, contrary to Section 15 of the Seal Fishery Act, Chapter 347, R.S.N. 1970 and;

(2) That they (other than the respondent Lundrigan) between the 5th day of March A.D., 1978, and the 15th day of April A.D., 1978 did bring into the Port of Dildo, Province of Newfoundland, seals killed on Sunday the 12th day of March A.D. 1978, contrary to Section 15 of the Seal Fishery Act, Chapter 347, Revised Statutes of Newfoundland and amendments thereto.

It is the question of the effect, if any to be given to the said s. 15 which lies at the heart of this appeal and that section reads as follows:

15. No seals shall be killed by the crew of any steamer or sailing vessel, or by any member thereof, on any Sunday (that is to say from twelve o’clock on Saturday night until twelve o’clock on Sunday night), in any year, nor shall seals, so killed, be brought into any port in this province in any year under a penalty of two thousand dollars, to be recovered in a summary manner by any person who shall sue for the same before a stipendiary. magistrate, from the master or such of the crew of the said steamer or sailing vessel as have violated the provisions of this section.

This section had been a part of the law of Newfoundland since its enactment as s. 16 of chapter 162 of the Consolidated Statutes of Newfoundland in 1916 and was accordingly in force at the time when the Terms of Union of Newfound-

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land and Canada were given the force of law by the British North America Act, 1949, which provided, inter alia, by Terms 3, 18(1) and 18(2) as follows:

3. The British North America Acts, 1867 to 1946, shall apply to the Province of Newfoundland in the same way, and to the like extent as they apply to the provinces heretofore comprised in Canada, as if the Province of Newfoundland had been one of the provinces originally united, except in so far as varied by these Terms and except such provisions as are in terms made or by reasonable intendment may be held to be specially applicable to or only to affect one or more and not all of the provinces originally united.

18. (1) Subject to these Terms, all laws in force in Newfoundland at or immediately prior to the date of Union shall continue therein as if the Union had not been made, subject nevertheless to be repealed, abolished, or altered by the Parliament of Canada or by the Legislature of the Province of Newfoundland according to the authority of the Parliament or of the Legislature under the British North America Acts, 1867 to 1946, and all orders, rules, and regulations made under any such laws shall likewise continue, subject to be revoked or amended by the body or person that has power to make such orders, rules, or regulations after the date of Union, according to their respective authority under the British North America Acts, 1867 to 1946. [The italics are my own.]

(2) Statutes of the Parliament of Canada in force at the date of Union, or any part thereof, shall come into force in the Province of Newfoundland on a day or days to be fixed by Act of the Parliament of Canada or by proclamation of the Governor-General in Council issued from time to time, and any such proclamation may provide for the repeal of any of the laws of Newfoundland that

(a) are of general application;

(b) relate to the same subject-matter as the statute or part thereof so proclaimed; and

(c) could be repealed by the Parliament of Canada under paragraph one of this Term.

It was contended on behalf of the respondents that the said s. 15 ceased to have any force and effect in the Province of Newfoundland at least

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since the enactment of the Seal Protection Regulations (P.C. 1966-904) made under the authority of the Fisheries Act, R.S.C. 1970, c. F-14, which was not brought into effect itself in Newfoundland until the proclamation of May 1, 1958 made pursuant to s. 18(2) of the British North America Act, 1949 (see SOR/58-189).

This contention was supported on the assumption that Regulation 24 of the Seal Protection Regulations having been made under The Fisheries Act by P.C. 1966-904 [SOR/66-235, as amended] was to be treated as part of an Act of the Parliament of Canada and that it had the effect of altering the terms of s. 15 of The Seal Fishery Act in such fashion as to make that section ineffective. It will be seen that this last contention is also founded upon the provisions of s. 18 of the Terms of Union and that it depends upon the acceptance of the proposition that the Seal Protection Regulations, and particularly s. 24 thereof, were validly enacted in the exercise of the legislative authority accorded to the Parliament of Canada over the subject of Sea Coast and Inland Fisheries by s. 91(12) of the British North America Act.

Regulation 24 of the Seal Protection Regulations, at all times relevant hereto, read as follows:

24. No person shall hunt for or kill a seal during any day

(a) in the Gulf Area, during any period before 0600 hours or after 1800 hours, Atlantic Standard Time; or

(b) in the Front Area,

(i) during the period from March 10 to March 31 inclusive before 05:30 hours or after 18:30 hours, Newfoundland Standard Time, or

(ii) during the period from April 1 to April 24 inclusive, before 0530 hours or after 2030 hours, Newfoundland Standard Time.

It has not been suggested that the area referred to in the charges herein was other than within the sea coast of Newfoundland and I am satisfied that the areas specified in Regulation 24 cover the location where the offences are alleged to have taken place.

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In the course of his reasons for judgment in the Trial Division, Mr. Justice Mahoney reproduced the said s. 15 and Regulation 24 side by side, and I agree with his conclusion that if it is accepted that the Seal Protection Regulations (SOR/49-417, R.R.C. c. 833) became part of the law of Newfoundland at and after the bringing into force of the Fisheries Act in Newfoundland by royal proclamation on May 1, 1958, there can be no doubt that a conflict exists between Regulation 24 of those Regulations and s. 15 of The Seal Fishery Act of Newfoundland and it is the question of which enactment is to take priority in relation to the protection of seals which really lies at the heart of this appeal.

Having regard to the provisions of s. 18(1) of the British North America Act, it must, I think, be accepted that s. 15 of The Seal Fishery Act of Newfoundland was a part of the “laws in force in Newfoundland at or immediately prior to the date of Union” and it continued as such subject nevertheless to being repealed, abolished or altered by the Parliament of Canada according to the exclusive legislative authority over “Sea Coast and Inland Fisheries” assigned to Parliament under s. 91(12) of the British North America Acts 1867 to 1946.

The “authority” referred to in Term 18(1) is described by Rinfret C.J. in Re Bowater’s Newfoundland Pulp and Paper Mills, Limited, [1950] S.C.R. 608 at p. 620 as giving

…jurisdiction on the respective subject-matters enumerated in Sections 91 and 92 of the British North America Act, that is to say, that by force of Term 18(1) the Parliament of Canada is thereby given the authority to repeal, abolish or alter any and all laws in force in Newfoundland at or immediately prior to the date of union, which deal with the subject-matters in Section 91, and the Legislature of the Province of Newfoundland is given authority to repeal, abolish or alter all laws in force in Newfoundland at or immediately prior to the date of union which deal with the subject-matters in Section 92 of the Act.

It is however contended on behalf of the appellant that The Seal Fishery Act as re-enacted by R.S.Nfld. 1970, c. 34, never ceased to be in force

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in Newfoundland and that its provisions were not at any time subject to “repeal, abolition or alteration” by regulations passed by the Governor General of Canada under the authority of the Fisheries Act.

As I have indicated; the provisions of s. 18 of the British North America Act in my opinion constitute clear authority empowering the Parliament of Canada to repeal, alter or abolish pre‑Confederation laws of Newfoundland such as The Seal Fishery Act in so far as those laws relate to matters over which Parliament is accorded “authority under the British North America Acts 1867 to 1946” which undoubtedly include “Sea Coast and Inland Fisheries” by virtue of s. 91(12) of the Act.

As I have pointed out, the area where the offences herein are alleged to have occurred is within the sea coast of Newfoundland and as such was subject to the exclusive authority of Parliament for the reasons which I have stated. Regulation 24 of the Seal Protection Regulations is therefore, in my view, a part of the law which was in force in Newfoundland at the dates referred to in the charges laid against the respondents herein.

In my opinion, as was stated by Mr. Justice Gushue in the passage from his reasons to which reference is hereinafter made, subs. 18(1) did not make The Seal Fishery Act a part of federal legislation; it merely continued existing Newfoundland law in effect, but subject to repeal or alteration by legislation enacted by the appropriate authority, either federal or provincial depending on the subject matter. Regulation 24 of the Seal Protection Regulations is valid federal legislation enacted pursuant to the express statutory authority vested in the Governor in Council under s. 34 of the Fisheries Act which provides:

34. The Governor in Council may make regulations for carrying out the purposes and provisions of this Act and in particular, but without restricting the generality of the foregoing, may make regulations

…

(b) respecting the conservation and protection of fish;

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(c) respecting the catching, loading, handling, transporting, possession and disposal of fish;

The word “fish” is defined in s. 2 of the Act as including “marine animals” and the Regulation is therefore clearly applicable to the “catching” of seals.

It was, however, also contended by the appellant that The Seal Fishery Act was competent provincial legislation under s. 92(13) of the British North America Act, (i.e. property and civil rights) and that the Fisheries Act of Canada is accordingly not within the legislative authority of Parliament and Regulation 24 thereof is accordingly without any application to the circumstances here disclosed.

It may be that there are some sections of The Seal Fishery Act which could be construed as primarily directed towards the regulation of a trade or calling, but the issue here is limited to the effect of s. 15 of that statute which is exclusively concerned with the catching and handling of fish and is therefore undoubtedly within the jurisdiction of the Parliament of Canada under s. 91(12) of the British North America Act.

I do not find it necessary to explore further the constitutional effect of the transitional provisions of the Terms of Union or s. 18 of the British North America Act, 1949 which gave those terms the force of law in Newfoundland. In this regard I am content to adopt the views expressed by Mr. Justice Gushue in the course of his reasons for judgment in the Court of Appeal where he said:

…even if Section 15 could be termed Federal law, it is certainly not a Federal statute. Thus, the various authorities cited to support the above well-known propositions are of no assistance. More importantly, it is my view that to classify Section 15, and other such valid Newfoundland legislation which carried on after April 1, 1949, until repealed, abolished or altered, as being either Federal or Provincial legislation is a misnomer. It is Newfoundland law placed in a special (and presumably, temporary) category from the point of view of its continuing enforceability by a special provision of the B.N A. Act—namely, Term 18(1). Further, in my view,

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the only relevant consideration for this Court is that the particular law with which we are here concerned can only be dealt with by way of repeal, abolition or alteration by the Parliament of Canada and whether such occurred.

In my opinion the particular law with which we are here concerned is expressed in Regulation 24 of the Seal Protection Regulations and while that Regulation does not expressly repeal s. 15 of The Seal Fishery Act, the provisions of the former enactment so alter the provisions of the latter as to make it ineffective as part of the law of Newfoundland.

In this Court, upon application of counsel for the appellant, the Chief Justice stated the following constitutional question:

Is Section 15 of The Seal Fishery Act of the Province of Newfoundland, R.S. Nfld. 1970, c. 347 (formerly section 16 of The Seal Fishery Act, C.S. Nfld. 1916) within the legislative authority of the Province of Newfoundland under Section 92 of the British North America Act, 1867 and if so, has it been altered or rendered ineffective by virtue of:

(a) the bringing into force in the Province of Newfoundland of the Fisheries Act of Canada, R.S.C. 1952, c. 119, except for section 13 thereof, by the Proclamation of the Governor in Council dated May 5, 1958, S.O.R./58-189; and/or

(b) the promulgation of section 24 of the Seal Protection Regulations, S.O.R./67-52 as amended by S.O.R./76-172, S.O.R./77-181 and S.O.R./78-167, made pursuant to the Fisheries Act of Canada.

It will be seen from these reasons that I would answer the first part of the question in the negative as I am of opinion that s. 15 of The Seal Fishery Act is confined to the regulation of the killing of seals, a matter to which the exclusive legislative authority of Parliament extends under s. 91(12) of the British North America Act, “Sea Coast and Inland Fisheries”. In view of this answer it becomes unnecessary to deal with parts (a) and (b) of the question. It should be noted that the Attorney General of Newfoundland intervened in this appeal and accepted the conclusion reached in the Trial Division and the Court of Appeal.

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Having regard to all the above, I would dismiss this appeal with costs.

Appeal dismissed with costs.

Solicitor for the appellant: Thomas G. Heintzman, Toronto.

Solicitors for the respondent Morrissey Johnson: Lewis and Sinnott, St. John’s.

Solicitor for the respondent the Attorney General of Newfoundland: James A. Nesbitt, St. Johns.

Solicitors for the respondents Snarby, Lundrigan and Gillett: Halley and Hunt, St. Johns.