Copies of many of the decisions referred to can be obtained from the web site of the Canadian Legal Information Institute. At this site, these cases can also be noted up using the Reflex Record to determine whether they have been changed upon appeal. Constitutional law - division of powers - Jurisdiction of Provincial Inspectors to Inspect a fishing vessel Pursuant to the provisions of the provincial fish inspection act. R. v. Ralph [2006] N.J. No. 57, 2006 NLCA 15 (link) This case involved a fisher who refused to allow provincial fish inspectors to inspect his fishing vessel. He was subsequently convicted of obstructing an inspector. Upon seeking leave to appeal, the court denied his appeal for the following reasons: (1) He failed to give notice to the Attorney General of Canada; and (2) The proposed grounds of appeal were not rationally arguable in law based upon the test set out in Ward v. Canada (Attorney General) [2002] S.C.R. 569. (link) Constitutional Law - Division of Powers - Jurisdiction of the Federal Government to Regulate fisheries on inshore waters - Terms of Union between Newfoundland and Canada - Offence of Failing to tag cod R. v. Nichol [2006] N.J. No. 257, 2006 NLTD 139 (Nfld. & Lab. S.C..) This case involved two fish harvesters who were charged with failing to tag cod fish immediately after harvesting as required by their recreational fishing licences while fishing on inshore waters of Newfoundland. The case was defended primarily upon the grounds that the Federal Government did not have regulatory authority over the inshore cod fishery because of the fact that during negotiations over the terms of union between Newfoundland and Canada, the Prime Minister of Canada made a firm commitment to preserve the rights of Newfoundlanders to continue to fish of for codfish. The trial court upheld the exclusive jurisdiction of the Federal Government on the following basis: 1) Long before the Province Nfld. joined Canada, the question of jurisdiction over fishery jurisdiction in Canadian waters was litigated and resolved in favour of the Federal Government; 2) Both the British North America Act and the terms of union between Canada and Nfld. confirm the exclusive jurisdiction of the Federal Government; 3) Since the union of Nfld. with Canada, courts, including the Supreme Court of Canada in Ward v. Canada [2002] 1 S.C.R. 569, have consistently upheld the exclusive jurisdiction of the Federal Government ; 4) This exclusive jurisdiction has not been modified by the headland to headland rule because this rule does not apply to Nfld. because the terms of union included Nfld's outlying Islands. In any event, the Federal Government's exclusive jurisdiction over the regulation of fisheries would apply even if the Province had jurisdiction over inshore waters by virtue of the headland to headland rule. Upon being appealed, the appeal court dismissed the appeal. Constitutional Law - Division of Powers - Jurisdiction of the Federal Government to Regulate fisheries on inshore waters - Terms of Union between Newfoundland and Canada - Offence of Failing to tag cod R. v. Nichol [2006] N.J. No. 257, 2006 NLTD 139 (Nfld. & Lab. S.C..) This case involved two fish harvesters who were charged with failing to tag cod fish immediately after harvesting as required by their recreational fishing licences while fishing on inshore waters of Newfoundland. The case was defended primarily upon the grounds that the Federal Government did not have regulatory authority over the inshore cod fishery because of the fact that during negotiations over the terms of union between Newfoundland and Canada, the Prime Minister of Canada made a firm commitment to preserve the rights of Newfoundlanders to continue to fish of for codfish. The trial court upheld the exclusive jurisdiction of the Federal Government on the following basis: 1) Long before the Province Nfld. joined Canada, the question of jurisdiction over fishery jurisdiction in Canadian waters was litigated and resolved in favour of the Federal Government; 2) Both the British North America Act and the terms of union between Canada and Nfld. confirm the exclusive jurisdiction of the Federal Government; 3) Since the union of Nfld. with Canada, courts, including the Supreme Court of Canada in Ward v. Canada [2002] 1 S.C.R. 569, have consistently upheld the exclusive jurisdiction of the Federal Government ; 4) This exclusive jurisdiction has not been modified by the headland to headland rule because this rule does not apply to Nfld. because the terms of union included Nfld's outlying Islands. In any event, the Federal Government's exclusive jurisdiction over the regulation of fisheries would apply even if the Province had jurisdiction over inshore waters by virtue of the headland to headland rule. Upon being appealed, the appeal court dismissed the appeal. Constitutional Cases - Fisheries Organizations Support Act intra virus the Province of Nova Scotia R. v. Allen [2005] N.S.J. No. 349, 2005 NSCA 118The case involved charges of failing to pay dues are required by the Fisheries Organizations Support Act of Nova Scotia. This is legislation was enacted in 1996 for the stated purpose "to strengthen fisheries organizations in the province and provide a procedure to enable accredited fisheries organizations to collect mandatory annual dues from licence holders". The defendant argued that this Act was ultra virus because in pith an substance it was an attempt by the provincial government to become involved in the maintenance and preservation of the fishery as a whole. The defendant also argued that the Act violated the freedom of association provisions of s. 2(d) of the Charter. With respect to the first argument, the trial court relied upon Ward v. Canada [2002] 1 S.C.R. 569 (digested herein) and a lack of evidence on a number of points to hold the Act intra virus the Province of Nova Scotia. With respect to s. 2(d) of the Charter, the court held there was no violation of freedom of association rights because the association served the common good and collective social welfare of its members. In any event, a violation of s. 2(d) would have been justified under s. 1 of the Charter. Upon appeal, the appeal court upheld the decision of the trial court, but found it unnecessary to make a ruling on the s. 1 justification issue. Constitution
– Division of Powers R. v. Ralph [2005] N.J. No. 17, 2005 NLTD 18 (T.D.) Constitution
– Division of Powers R.
v. Ward 2002 SCC 17 (S.C.C.) This
case involved a fisherman who was charged under section 27 of the Marine
Mammals Regulations, SOR 56/93, passed pursuant to the Fisheries Act. This regulation prohibited the sale of, amongst other things,
“blueback” seals, which are young hooded seals and whitecoats, which are
young harp seals. The evidence lead at trial was that public opinion opposed to
the killing of seal pups was detrimental to the market for both seal products
and other Canadian seafood products such as British Columbia canned salmon. Since it is very difficult to distinguish between mature and immature
harp seals while hunting, D.F.O. responded to this problem by enacting section
27 of the Marine Mammals Regulations, which
made it an offence to sell immature seals. This case involved a challenge to the constitutional validity of this
regulation. The
issue in this case was whether the impugned regulation fell under federal
jurisdiction over “Sea Coast and Inland Fisheries” under section 91(12) of
the Constitution Act or whether it
fell under provincial jurisdiction over “Property and Civil Rights’ under
section 92(13) of the Constitution Act? At
trial, the court relied in part upon Re
Minister of Fisheries and Oceans and Gulf Trollers (1987), 32 D.L.R. (4th)
737 (F.C.A.) to uphold the legislation
on the grounds that the federal fisheries power extended beyond conservation to
more general socio-economic goals. The
Majority of the Newfoundland Court of Appeal reversed the trial judgement and
held the regulation invalid. They
held that the fisheries power was confined to issues of conservation, and
legislation enacted for socio-economic reasons was too broad a description for
division of power purposes. It was
the view of the dissenting Judge that the pith and substance of the regulation
was not to control the sale of seal pelts for its own sake, but to discourage
the commercial taking of the seals. Upon
further appeal to the Supreme Court of Canada, the court allowed the appeal and
upheld the regulation as valid. In
doing so, it applied the two staged pith and substance test: first, what is the essential character of the law? Second, does that
character relate to an enumerated head of power? In looking at the essential character of the law, the court embarked on
another two stage test: first, what is the purpose and second, what is the legal
effect of the regulation. In
determining the purpose of the regulation, the court relied upon the trial
judge’s finding that the purpose of the regulation was to control the killing
of the blue backs and whitecoats by prohibiting their sale, thus making it
pointless to harvest them. This
finding was re-enforced by the fact that the Fisheries
Act gives power to make regulations not only for the conservation and
protection of the fisheries, but also for the management and control of the
fisheries. With
respect to the legal effect of the regulation, the court rejected an argument
that because the regulation prohibited the sale of pelts, it must in pith and
substance be concerned with the regulation of sale. This argument confused the purpose of the regulation with the
means chosen to carry it out. With
respect to the issue of whether the pith and substance of the regulation falls
within the federal fisheries power, the court rejected the theory espoused by
the Newfoundland Court of Appeal that federal fisheries power only extends to
conservation. It also rejected the
argument that it only extends to the management of the fisheries resource to the
point of sale. In doing so, it
cited and number of decisions, including the Gulf Trollers decision, and said as
follows: 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. (para.
41).
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