Northwest Falling Contractors Ltd. v. The Queen, [1980] 2 SCR 292

Supreme Court of Canada

Northwest Falling Contractors Ltd. v. The Queen, [1980] 2 S.C.R. 292

Date: 1980-07-18

Northwest Falling Contractors Ltd. Appellant;

and

Her Majesty The Queen Respondent;

and

The Attorney General of New Brunswick and the Attorney General of Newfoundland Interveners.

1979: December 5; 1980: July 18.

Present: Martland, Ritchie, Pigeon, Dickson, Beetz, McIntyre and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Constitutional law—Fisheries—Whether s. 33(2) of Fisheries Act ultra vires—Deposit of deleterious substance in water frequented by fish—Whether legislation in relation to fisheries or pollution—Whether information multiplicitous—Fisheries Act, R.S.C. 1970, c. F-14, ss. 2, 33(2), 33(3) and 33(11)—B.N.A. Act, s. 91.12.

The appellant was charged with violating subs. 33(2) of the Fisheries Act under which “no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish…”. Diesel fuel had been delivered to tanks owned by the appellant. The tanks were resting on an old rotten log. The log had broken causing a pipe to break on the bottom of one tank, spilling 3,000 gallons of diesel fuel into the tidal waters at Cooper Reach, Head of Loughborough Inlet. Before any plea had been entered, the appellant applied to the Supreme Court of British Columbia for an order of prohibition. The order was sought upon three grounds only, two of which were argued before this Court, i.e., that subs. 33(2) was ultra vires of Parliament to enact, and that the information was multiplicitous. The application was dismissed and this decision was confirmed by the Court of Appeal.

Held: The appeal should be dismissed.

The validity of subs. 33(2) was challenged on the grounds that it is not legislation in relation to “Sea Coast and Inland Fisheries” (B.N.A. Act, s. 91.12), but that it is legislation in relation to the pollution of water generally, or is legislation for the protection of all animal life in the water. Federal legislative jurisdiction under s. 91.12 of the B.N.A. Act is not a mere authority

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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 and the federal legislative power as being concerned with the protection and preservation of fisheries as a public resource. The power to control and regulate that resource must include the authority to protect all those creatures which form a part of that system. The task of the Court in determining the constitutional validity of subs. 33(2) is to ascertain the true nature and character of the legislation. It is necessary to decide whether the subsection is aimed at the protection and preservation of fisheries or at the prevention of pollution. Basically, that subsection is concerned with the deposit of deleterious substances in water frequented by fish, or in a place where the deleterious substances may enter such water. The definition of a deleterious substance is related to the substance being deleterious to fish. In essence, the subsection seeks to protect fisheries by preventing substances deleterious to fish entering into waters frequented by fish. This is a proper concern of legislation under the heading of “Sea Coast and Inland Fisheries”, for the definition of “deleterious substance” ensures that the scope of subs. 33(2), contrary to that of subs. 33(3) which was declared ultra vires in Fowler v. The Queen, is restricted to a prohibition of deposits that threaten fish, fish habitat or the use of fish by man.

With respect to the ground that the charges contained in the information were multiplicitous, the primary test should be a practical one: is the accused prejudiced in the preparation of his defence by ambiguity in the charge? The fact that there are several counts, each alleging a different mode of commission of an offence, does not make it any more difficult for the accused to know what case he has to meet or to prepare his defence.

R. v. Robertson (1882), 6 S.C.R. 52; Attorney General for Canada v. Attorney General for Quebec, [1921] 1 A.C. 413; Reference as to the Constitutional Validity of Certain Sections of the Fisheries Act, 1914, [1928] S.C.R. 457; Mark Fishing Co. v. United Fishermen & Allied Workers Union (1972), 24 D.L.R. (3d) 585; Interprovincial Co-Operatives Limited et al. v. The Queen, [1976] 1 S.C.R. 477; Fowler v. The Queen, S.C.C. June 17, 1980; R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299; Kienapple v. The Queen, [1975] 1 S.C.R. 729.

APPEAL from a judgment of the Court of Appeal for British Columbia, dismissing an appeal

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from a decision of the Supreme Court of British Columbia. Appeal dismissed.

Brian A. Crane, Q.C., for the appellant.

T.B. Smith, Q.C., and H.J. Wruck, for the respondent.

Alan Reid, for the intervener, the Attorney General of New Brunswick.

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

The judgment of the Court was delivered by

MARTLAND J.—The main issue which is to be determined in this appeal is as to whether it was within the legislative competence of the Parliament of Canada to enact subs. 33(2) of the Fisheries Act, R.S.C. 1970, c. F-14, as amended.

Subsection (2) is one of a number of provisions appearing in the section which comes under the heading “Injury to Fishing Grounds and Pollution of Waters”. The following are the relevant subsections of s. 33:

33. (1) No one shall throw overboard ballast, coal ashes, stones, or other prejudicial or deleterious substances in any river, harbour or roadstead, or in any water where fishing is carried on, or leave or deposit or cause to be thrown, left or deposited, upon the shore, beach or bank of any water or upon the beach between high and low water mark, remains or offal of fish, or of marine animals, or leave decayed or decaying fish in any net or other fishing apparatus; such remains or offal may be buried ashore, above high water mark.

(2) Subject to subsection (4), no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish or in any place under any conditions where such deleterious substance or any other deleterious substance that results from the deposit of such deleterious substance may enter any such water.

(3) No person engaged in logging, lumbering, land clearing or other operations, shall put or knowingly permit to be put, any slash, stumps or other debris into any water frequented by fish or that flows into such water, or on the ice over either such water, or at a place

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from which it is likely to be carried into either such water.

(4) No person contravenes subsection (2) by depositing or permitting the deposit in any water or place

(a) of waste or pollutant of a type, in a quantity and under conditions authorized by regulations applicable to that water or place made by the Governor in Council under any Act other than this Act; or

(b) of a deleterious substance of a class, in a quantity or concentration and under conditions authorized by or pursuant to regulations applicable to that water or place or to any work or undertaking or class thereof, made by the Governor in Council under subsection (13).

(5) Any person who contravenes any provision of

(a) subsection (1) or (3) is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars for a first offence, and not exceeding ten thousand dollars for each subsequent offence; or

(b) subsection (2) is guilty of an offence and liable on summary conviction to a fine not exceeding fifty thousand dollars for a first offence, and not exceeding one hundred thousand dollars for each subsequent offence.

(6) Where an offence under subsection (5) is committed on more than one day or is continued for more than one day, it shall be deemed to be a separate offence for each day on which the offence is committed or continued.

…

(11) For the purposes of this section and sections 33.1 and 33.2,

“deleterious substance” means

(a) any substance that, if added to any water, would degrade or alter or form part of a process of degradation or alteration of the quality of that water so that it is rendered or is likely to be rendered deleterious to fish or fish habitat or to the use by man of fish that frequent that water, or

(b) any water that contains a substance in such quantity or concentration, or that has been so treated, processed or changed, by heat or other means, from a natural state that it would, if added to any other water, degrade or alter or form part of a process of degradation or alteration of the quality of that water

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so that it is rendered or is likely to be rendered deleterious to fish or fish habitat or to the use by man of fish that frequent that water,

and without limiting the generality of the foregoing includes

(c) any substance or class of substances prescribed pursuant to paragraph (12)(a),

(d) any water that contains any substance or class of substances in a quantity or concentration that is equal to or in excess of a quantity or concentration prescribed in respect of that substance or class of substances pursuant to paragraph (12)(b), and

(e) any water that has been subjected to a treatment, process or change prescribed pursuant to paragraph (12)(c);

“deposit” means by discharging, spraying, releasing, spilling, leaking, seeping, pouring, emitting, emptying, throwing, dumping or placing;

“water frequented by fish” means Canadian fisheries waters.

(12) The Governor in Council may make regulations prescribing

(a) substances and classes of substances,

(b) quantities or concentrations of substances and classes of substances in water, and

(c) treatments, processes and changes of water

for the purpose of paragraphs (c) to (e) of the definition “deleterious substance” in subsection (11).

Section 2 of the Act contains the following definitions:

“Canadian fisheries waters” means all waters in the fishing zones of Canada, all waters in the territorial sea of Canada and all internal waters of Canada.

“fish” includes shellfish, crustaceans and marine animals and the eggs, spawn, spat and juvenile stages of fish, shellfish, crustaceans and marine animals.

The information setting out the charges against the appellant is as follows:

The informant says that he has reasonable and probable grounds to believe and does believe that Northwest Falling Contractors Ltd., and Gulf Oil Canada Limited, on or about the 4th day of April, 1978, A.D., in the County of Vancouver, in the Province of British Columbia, did unlawfully deposit a deleterious sub-

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stance into water frequented by fish, to wit: Cooper Reach, Head of Loughborough Inlet.

CONTRARY TO THE FORM OF STATUTE IN SUCH CASE MADE AND PROVIDED.

COUNT 2: The informant says that he has reasonable and probable grounds to believe and does believe that Northwest Falling Contractors Ltd., and Gulf Oil Canada Limited, on or about the 4th day of April, 1978, A.D., in the County of Vancouver, in the Province of British Columbia, did unlawfully permit the deposit of a deleterious substance into water frequented by fish, to wit: Cooper Reach, Head of Loughborough Inlet.

CONTRARY TO THE FORM OF STATUTE IN SUCH CASE MADE AND PROVIDED.

COUNT 3: The informant says that he has reasonable and probable grounds to believe and does believe that Northwest Falling Contractors Ltd., and Gulf Oil Canada Limited, on or about the 4th day of April, 1978, A.D., in the County of Vancouver, in the Province of British Columbia, did unlawfully permit the deposit of a deleterious substance in a place under such conditions where such deleterious substance or any other deleterious substance that results from the deposit of such deleterious substance may enter water frequented by fish to wit: Cooper Reach, Head of Loughborough Inlet.

CONTRARY TO THE FORM OF STATUTE IN SUCH CASE MADE AND PROVIDED.

Particulars were furnished by the respondent to the appellant in the following form:

At approximately 8:15 on the morning of April 4th, 1978, Captain R. Davis of the F.P.L. Bonilla Rock noticed an oil slick at the Head of Cooper Reach, slick was approximately one mile long. After investigation it was found that on the morning of April 3rd Dennis Stevson, Box 2086, Squamish, barge operator of the Gulf Oil barge, “Gulf Logger” delivered approximately 17,000 gallons of diesel fuel to tanks owned by Northwest Falling Contractors Ltd. There were four tanks resting on an old rotten log. Log broke causing pipe to break on bottom of one tank, spilling 3,000 gallons of diesel fuel into Cooper Reach, Head of Loughborough Inlet.

Before any plea had been entered, the appellant applied to the Supreme Court of British Columbia for an order of prohibition. The order was sought upon three grounds. Only two of those grounds were argued before this Court, i.e., that the information did not disclose an offence known to the

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law and, further, that the information was multiplicitous. The appellant also challenged the decision of the Court of Appeal that prohibition was not an available remedy to attack the charge as being defective. The first ground is based on the contention that subs. 33(2) was ultra vires of Parliament to enact.

The application for an order of prohibition was dismissed and this decision was confirmed on an appeal to the Court of Appeal of British Columbia. The appellant, with leave, then appealed to this Court.

The appellant attacks the validity of subs. 33(2) on the grounds that it is not legislation in relation to “Sea Coast and Inland Fisheries” (s. 91.12 of The British North America Act), but that it is legislation in relation to the pollution of water generally, or is legislation for the protection of all animal life in the water.

I will deal with the second point first. The argument is founded upon the definition of “fish” in s. 2 of the Act. It is said that this definition is too broad. However, 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.

Chief Justice Ritchie, in the first judgment of this Court dealing with s. 91.12, The Queen v. Robertson[1], said, at p. 120:

…I am of opinion that the legislation in regard to “Inland and Sea Fisheries” contemplated by the British North America Act was not in reference to “property and civil rights”—that is to say, not as to the ownership of the beds of the rivers, or of the fisheries, or the rights of individuals therein, but to subjects affecting the fisheries generally, tending to their regulation, protection and preservation, matters of a national and general concern and important to the public such as the forbidding fish to be taken at improper seasons in an improper manner, or with destructive instruments, laws with reference to the improvement and increase of the fisheries;

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in other words, 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; in other words, laws in relation to the fisheries, such as those which the local legislatures were, previously to and at the time of confederation in the habit of enacting for their regulation, preservation and protection…

Viscount Haldane, in Attorney-General for Canada v. Attorney-General for Quebec[2], at p. 428, said:

…As this Board said in the British Columbia case in 1914, the object and effect of the provisions of s. 91 were to place the management and protection of the cognate public rights of navigation and fishing in the sea and tidal waters exclusively in the Dominion Parliament and to leave to the Province no right of property or control in them. These rights, as was observed, are rights of the public in general, and in no way special to the inhabitants of the Province.

The meaning of the word “fishery” was considered by Newcombe J. in this Court in Reference as to the Constitutional Validity of Certain Sections of the Fisheries Act, 1914[3], at p. 472:

In Patterson on the Fishery Laws (1863) p. 1, the definition of a fishery is given as follows:

A fishery is properly defined as the right of catching fish in the sea, or in a particular stream of water; and it is also frequently used to denote the locality where such right is exercised.

In Dr. Murray’s New English Dictionary, the leading definition is:

The business, occupation or industry of catching fish or of taking other products of the sea or rivers from the water.

The above definitions were quoted and followed by Chief Justice Davey in Mark Fishing Co. v. United Fishermen & Allied Workers Union[4], at pp. 591 and 592. Chief Justice Davey at p. 592 added the words:

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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.

Chief Justice Laskin, in Interprovincial Cooperatives Limited et al. v. The Queen[5], at p. 495, referred to the federal legislative power as being “concerned with the protection and preservation of fisheries as a public resource”.

Shellfish, crustaceans and marine animals, which are included in the definition of “fish” by s. 2 of the Act, are all part of the system which constitutes the fisheries resource. The power to control and regulate that resource must include the authority to protect all those creatures which form a part of that system.

The appellant’s main argument was that the legislation under attack is really an attempt by Parliament to legislate generally on the subject-matter of pollution and thus to invade the area of provincial legislative power over property and civil rights. He points to the very broad definition of “water frequented by fish” in subs. 33(11) which refers to “Canadian fisheries waters” which, under s. 2, includes “all waters in the territorial sea of Canada and all internal waters of Canada”. He also refers to the broad scope of the definition of “deleterious substance”. When these definitions are applied to subs. 33(2), it is said that the subsection is really concerned with the pollution of Canadian waters.

The charges laid in this case do not, however, effectively bring into question the validity of the extension of the reach of the subsection to waters that would not, in fact, be fisheries waters “or to substances other than those defined in paragraph (a) of subsection 33(11)”. The charges relate to diesel fuel spilled into tidal waters. The task of the Court in determining the constitutional validity of subs. 33(2) is to ascertain the true nature and character of the legislation. It is necessary to decide whether the subsection is aimed at the protection and preservation of fisheries. In my opinion it is.

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Basically, it is concerned with the deposit of deleterious substances in water frequented by fish, or in a place where the deleterious substance may enter such water. The definition of a deleterious substance is related to the substance being deleterious to fish. In essence, the subsection seeks to protect fisheries by preventing substances deleterious to fish entering into waters frequented by fish. This is a proper concern of legislation under the heading of “Sea Coast and Inland Fisheries”.

The situation in this case is different from that which was considered in Dan Fowler v. Her Majesty The Queen, a judgment of this Court recently delivered. That case involved the constitutional validity of subs. 33(3) of the Fisheries Act and it was held to be ultra vires of Parliament to enact. Unlike subs. (2), subs. (3) contains no reference to deleterious substances. It is not restricted by its own terms to activities that are harmful to fish or fish habitat. The basis of the judgment in the Fowler case is set out in the following passage:

Subsection 33(3) makes no attempt to link the proscribed conduct to actual or potential harm to fisheries. It is a blanket prohibition of certain types of activity, subject to provincial jurisdiction, which does not delimit the elements of the offence so as to link the prohibition to any likely harm to fisheries.

In my opinion, subs. 33(2) was intra vires of the Parliament of Canada to enact. The definition of “deleterious substance” ensures that the scope of subs. 33(2) is restricted to a prohibition of deposits that threaten fish, fish habitat or the use of fish by man.

The appellant contended that an order of prohibition should have been granted because the charges contained in the information were multiplicitous.

In The Queen v. Sault Ste. Marie[6], a somewhat similar violation was charged in omnibus fashion

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in a single count, i.e., discharging or depositing, or causing, or permitting the discharge of material. This generic charge was held not to be duplicitous. At p. 1308, it is said:

In my opinion, the primary test should be a practical one, based on the only valid justification for the rule against duplicity: does the accused know the case he has to meet, or is he prejudiced in the preparation of his defence by ambiguity in the charge?

If there is no ambiguity in a count alleging several modes of commission of one offence, a fortiori there is no ambiguity in a count alleging one particular mode of commission of an offence. The fact that there are several counts, each alleging a different mode, does not make it any more difficult for the accused to know what case he has to meet or to prepare his defence. He is not placed in greater jeopardy if the counts relate to one delict, because, in view of the judgment of this Court in Kienapple v. The Queen[7], he could not be convicted on more than one count.

In view of the fact that I consider the information to be satisfactory, there is no need to consider whether the Court of Appeal was correct in holding that prohibition was not an available means of attacking the information on the grounds of multiplicity.

I would dismiss the appeal.

Appeal dismissed.

Solicitor for the appellant: Graham Wright, Vancouver.

Solicitor for the respondent: Roger Tassé, Ottawa.