IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR
RICHARD BOUZAN and
HER MAJESTY THE QUEEN
Heard: September 6, 2006
Filed: September 26, 2006
Constitutional Law – Distribution of Legislative Powers – Fisheries – Federal Regulations Authorizing Licence Conditions Requiring Fish Caught in Recreational Cod Fishery to be Tagged – Whether Federal Government or Provincial Government Having Jurisdiction – Constitution Act, 1867 – Terms of Union – Doctrine of Crown Honour – Other Considerations.
Richard Bouzan and George Nichol appealed their convictions in the Provincial Court for failing to comply with conditions in a recreational cod fishing licence requiring them to tag all cod fish immediately as they caught it. The appellants did not dispute the facts but challenged the validity of the legislation under which they were charged. In essence, the appellants claimed that the Government of Canada has no jurisdiction to regulate catching fish for personal consumption within three miles of the coastline of Newfoundland and Labrador. The trial judge dismissed the appellants’ attack on the legislation.
Held: Appeal dismissed. The trial judge did not err in his decision. There is no merit to the appellants’ claim, whether based on statute, the Terms of Union between Newfoundland and Canada, the case law, or the doctrine of Crown Honour.
REASONS FOR JUDGMENT
Rick Bouzan and George Nichol were convicted in the Provincial Court at Grand Bank, NL on October 28, 2005 for failing to comply with a condition in a recreational fishing licence. The licence, issued to them by the Department of Fisheries and Oceans (Canada), authorized them to fish for cod fish in the so-called “food fishery” in September, 2004. The licence required them to tag any fish they caught immediately after they landed it. When Fisheries Officers inspected their boat on September 12, 2004, they found that Messrs. Bouzan and Nichol had taken twenty-nine fish, seventeen of which were untagged. The officers were satisfied from the condition of the untagged fish that they had been in the appellants’ possession for some time.
Messrs. Bouzan and Nichol were charged with breaching section 22(7) of the Fishery (General) Regulations[i], which is punishable under section 78(a) of the Fisheries Act[ii]. They pleaded not guilty to the charges but did not contest the evidence which the Crown offered to support the charges. They appeal their convictions, but do not, in keeping with their position at trial, contest the findings of fact which the trial judge relied on to convict them. Nor do the appellants challenge the modest fines which the trial judge imposed on them.
At trial, and again on this appeal, the appellants attacked the constitutional validity of the legislation under which they were charged. In effect, the appellants claim that the Government of Canada had no authority to require them to obtain an Atlantic Recreational Fishing License, or to comply with any conditions contained in that licence. The appellants believe that it is the Government of Newfoundland and Labrador which has legislative authority over Fisheries in this province, at least those which are conducted in its territorial waters[iii].
This appeal raises the following issues:
- Standard of Review for Appeals Against Conviction:
The Newfoundland Court of Appeal has recently restated the standards of review which appeal courts must apply. The restatement appears in Furlong Estate v. Newfoundland Light & Power Co.[iv] and Green v. Green[v]. I also discussed the applicable standards of appellate review recently in R. v. Myles[vi]. The Court of Appeal identified these standards of review, depending on the issues raised on the appeal: correctness (which applies to question of law alone); and, palpable and overriding error (always for straight questions of fact and possibly for questions of mixed fact and law and even inferences of fact, depending on the inferences or the mixture of fact and law).
This appeal raises questions of law alone and “correctness” is the standard of review. "Correctness" is a lower standard than "palpable and overriding error" which applies to a trial judge’s findings of facts. The higher standard of “palpable and overriding error” is imposed out of deference to the “numerous advantages” which “…the trial judge enjoys…over appellate judges which bear on all conclusions of fact”[vii]. In effect, correctness permits appellate judges to substitute their own findings for those of the trial judge if the latter is mistaken about the law.
- Constitutional Authority over Fisheries:
Newfoundland[viii] joined Canada as its tenth province on March 31, 1949. The Constitution Act, 1867[ix], was amended in 1949 by the Newfoundland Act[x] to incorporate the Terms of Union agreed upon between Newfoundland and Canada for Newfoundland’s entry into Confederation. The Terms of Union arose from a memorandum of agreement between Newfoundland and Canada dated December 11, 1948. The agreement was negotiated by a seven-person delegation from Newfoundland, chosen by the National Convention in 1948, after Newfoundland voted narrowly (52.3% for Confederation – 47.7% for Responsible Government) for Confederation in a second referendum on July 22, 1948. Terms 3[xi], 18[xii] and 22[xiii] of the Terms of Union are particularly relevant to this appeal.
The implications of Term 3 for jurisdiction over fisheries in Newfoundland and Labrador are not self-evident from its terms but is clear when read in context of the Terms themselves and the Constitution Act, 1867, in particular: It assigned (subject to the Terms of Union) jurisdiction over this province’s fisheries “…in the same way, and to the like extent [as in the other provinces of Canada]…as if the Province of Newfoundland and Labrador had been one of the provinces originally united….”
Section 91[xiv] of the Constitution Act, 1867 provides for the constitutional powers of the Parliament of Canada and item 12 is most relevant. It assigns the exclusive legislative authority over “Sea Coast and Inland Fisheries” to the Government of Canada.
Term 18 provided for the continuation of laws in the province, and their eventual replacement, as Newfoundland made the transition from Dominion to province. Subsection 18(1) authorized the Government of Canada to repeal, abolish or alter any laws in force in Newfoundland before union with Canada if those laws dealt with the twenty-nine subject matters reserved under section 91 of the Constitution Act, 1867 exclusively to Parliament. Reciprocally, it authorized Newfoundland to repeal, abolish or alter any laws in force in Newfoundland before union with Canada if those laws dealt with the sixteen subject matters reserved under section 92 (“Exclusive Powers of Provincial Legislatures”) of the Constitution Act, 1867 exclusively to the provinces.
Subsection 18(2) of the Terms of Union provided two mechanisms for applying Canadian laws in Newfoundland: by statute or Order-in-Council; and on the dates specified in each. Orders-in-Council could also provide for the repeal of any Newfoundland laws, if the laws were of general application, they related to the subject matter of the statute and they were laws that the Parliament of Canada was authorized to repeal. Subsection 18(3) provided a general authority to the Government of Canada to repeal any Newfoundland law in force at Confederation provided Parliament had the consent of the Provincial legislature.
Term 22 of the Terms of Union referred specifically to “Fisheries”, a topic of paramount importance to the Newfoundland delegates who negotiated the Terms of Union. Newfoundland’s economic viability was tied inextricably to salt fish in 1949. Newfoundland’s trade in salt fish had developed to a high level of sophistication and was well-regulated by a series of laws the Newfoundland government had passed over the preceding decades. Those laws were administered by the Newfoundland Fisheries Board and many of the Board’s duties would fall to Federal authorities after Confederation as the Government of Canada took responsibility for Fisheries.
It did not appear to the Newfoundland negotiators that Federal Fisheries was able to provide the careful management that the salt fish industry needed to survive and remain competitive. So they sought (and obtained) transitional provisions that ensured the Fisheries would continue to be well-managed while the Federal authorities developed the legal framework and the industrial wherewithal to replace what was available in Newfoundland at the time. Term 22 provided the constitutional means of making the transition.
Subsection 22(1) listed the laws that were to remain in force in Newfoundland after Confederation, “…in so far as they relate to the export marketing of salted fish from Newfoundland to other countries or to any provinces of Canada”. Subsection 22(2) said those laws were in effect for at least five years or perhaps longer, if “…the Parliament of Canada otherwise provides….” It also retained the Newfoundland Fisheries Board to administer the laws and, most importantly, directed the Government of Canada to pay the Board’s operating costs.
Subsection 22(3) of Term 22 transferred the authority over Fisheries “…after the date of Union…” from the Governor of Newfoundland or the Newfoundland Commissioner for Natural Resources to the Minister of Fisheries for Canada. Section 22(4) of Term 22 authorized the Government of Canada to “repeal or alter” any of Newfoundland’s Fisheries laws if the Newfoundland Cabinet consented; so that even the laws which were protected under subsection 22(2) could be changed if Newfoundland agreed to the changes. This subsection also authorized the Newfoundland government to “revoke or alter” the same laws during the first five years after Confederation if it had made them, or even if it did not make them, if it had authority to make them under the Constitution Act, 1867.
Term 22 precluded the Government of Canada from changing the Fisheries laws in Newfoundland for the five years from Confederation in 1949 until 1954, unless, as already noted, it had obtained prior approval of the Newfoundland government. In fact, it did not change the Newfoundland Fisheries laws until ten years after Confederation. An Act to repeal certain Fisheries Laws in force in the Province of Newfoundland respecting the Exportation of Salt Fish[xv] came into force on August 1, 1959. By this Act the Parliament of Canada unilaterally repealed The Exportation of Salt Fish (Permits) Act, 1942[xvi] (and its consolidated version in the Revised Statutes of Newfoundland, 1952). A further Act of Parliament – An Act to repeal certain Fisheries Laws of Newfoundland[xvii] – passed in 1960. There was only one section in the 1960 Act but it put an end to the “Fisheries Law of Newfoundland as defined in paragraph (1) of Term 22 of the Terms of Union of Newfoundland with Canada” and all subordinate legislation passed under those laws. Henceforth, Fisheries in Newfoundland would be (and has been) controlled by the Government of Canada.
By the Crown’s Honour:
Canadian Prime Minister Louis St. Laurent wrote to Sir Albert Walsh, Chairman of the Newfoundland delegation that negotiated the Terms of Union, on December 11, 1948, answering “…a number of questions concerning Government policy…raised by your delegation….” He forwarded a “memorandum” setting out “…statements of the policy and intentions of this Government if Union is made effective….” The Prime Minister did not think it “…fitting to include [the answers] in formal terms of union…since they are scarcely of a constitutional nature”.
As to Fisheries, the Prime Minister confirmed:
§ Newfoundland trawlers would be “…permitted to fish (as they have been doing) to the three mile limit off the coasts of Newfoundland”.
§ The trawler licensing policy would be “…based on securing the maximum efficiency for the province’s fishing industry and welfare for its shore communities”.
§ The Canadian Government would respect the “headland to headland” rule in identifying the “territorial waters” of Newfoundland.
§ The Canadian Government’s positions on Newfoundlanders selling bait to foreign vessels, export taxes on fish, inspection fees on exports, tariffs, and the importation of fish wrappers and packaging; and it clarified the powers and functions of the Newfoundland Fisheries Board.
The appellants claim that the Prime Minister’s letter contained promises which the Government of Canada is duty-bound to uphold, but which it has not done in its dealings with this province. They believe that Crown honour is engaged in the same way as it is when the Crown is dealing with treaty or aboriginal rights; and that, as Cory, J. said in R. v. Badger[xviii], “…[i]t is always assumed that the Crown intends to fulfil its promises. No appearance of ‘sharp dealing’ will be sanctioned.”[xix]
The concept of “Crown honour” has been described as “…a system of law based on principles of fundamental justice over the exercise of the individual discretion.”[xx] The concept is aligned with the notion that Crown owes a "fiduciary duty" to aboriginal peoples. It postulates that ministers of the Crown will be held to “…a standard of fairness that demands forethought as to what conduct [in dealing with aboriginal people] lends credibility and honour to the Crown, instead of what conduct can be technically justified under the current law.”[xxi] It has been said of it that the “…Supreme Court of Canada clearly rebukes the notion that a minister's motivation to act can be defended on the grounds of political expediency.”[xxii]
By the Cases:
Fisheries law in general, and as it relates to Newfoundland, in particular, has received significant attention since Confederation in 1867. I will review some of the more pertinent cases, in chronological order, though not exhaustively, and give a brief synopsis of each:
§ Reference re Provincial Fisheries[xxiii]: The Judicial Committee of the Privy Council confirmed as early as 1898, that enacting fishery regulations and restrictions is within the exclusive competence of the Dominion Legislature under section 91(12) of the then British North America Act, 1867, and is not within the legislative powers of the Provincial Legislatures.
§ North v. Canada[xxiv]: Under the provisions of the British North America Act, 1867, subsection 91(12), the Parliament of Canada has exclusive jurisdiction to legislate with respect to Fisheries within the three-mile zone of the sea coasts of Canada; and any foreign vessel violating the fishery laws of Canada may be immediately pursued beyond the three-mile zone and lawfully seized on the high seas.
§ Re B.C. Fisheries[xxv]: The right to fish in the arms of the sea and the estuaries of rivers is a public right of the same character as that enjoyed by the public on the open seas. It is not an incident of property and is not confined to those citizens who are under the jurisdiction of the Province. This right to fish cannot be interfered with by the Provinces, which have no authority to make general legislation with regard to sea coast and inland fisheries.
§ Re Johnson[xxvi]: The Fisheries Act of Canada properly occupies the whole field of Fisheries legislation which belonged to the Federal jurisdiction and consequently replaces any Newfoundland legislation which had previously been unchallenged, even if the existing Newfoundland legislation was not expressly repealed and replaced by the Federal legislation.
§ Ward v. Canada (Attorney General)[xxvii]: Federal power over fisheries includes not only conservation and protection but also the general regulation of the Fisheries, including their management and control. The Fisheries resource includes animals in the sea, but it also embraces commercial and economic interests, aboriginal rights and interests, and the public interest in sport and recreation. Measures whose essence go to the regulation of fish processing and labour relations in the fishery are outside the federal power, but measures primarily related to the regulation of the Fisheries resource are valid Federal legislation even though they touch incidentally upon the sale of fish.
Richard Bouzan and George Nichol applied for recreational food fishery licences in 2004. They paid the fee DFO charged, were issued licences, and given fifteen tags each. They were instructed to affix the tags through the gill and mouth of each Atlantic cod they caught, immediately after it was taken. Each appellant was permitted to catch fifteen codfish and no more.
Fisheries officers checked the aluminum boat from which the appellants were fishing about 2:20 pm on September 12, 2004. The vessel was about five hundred feet from the shoreline of Fortune Bay, NL at the time, and appeared to be involved in the recreational cod fishery. The Fisheries officers found twenty-nine cod fish on board the vessel and the appellants were its sole occupants. Tags issued to Mr. Nichol were affixed to twelve of the fish in the boat but the remaining seventeen were untagged. None of the tags issued to Mr. Bouzan were used. Fifteen of the fish had been gutted before they were tagged and appeared to the officers to have been caught for some time.
The appellants were charged under section 22(7) of the Fishery (General) Regulations, with failing to comply with the condition of their licences which required them to tag the fish immediately as it was caught. The offence is punishable under section 78(a) of the Fisheries Act. Counsel for the Crown and the appellants filed an agreed statement of facts at trial, where the focus, as it has been on this appeal, was on the constitutionality of the legislation. The trial judge was satisfied that the facts supported the charges. He was also satisfied that the legislation under which the appellants had been charged was valid and had been properly enacted by the Government of Canada. He convicted the appellants and fined them $100 each.
The Fishery (General) Regulations are made under authority of section 43 of the Fisheries Act. Section 22(7) of the Regulations says “…the Minister [of Fisheries] may specify in a licence…conditions respecting any of the following matters:
r) the marking or tagging of fish for identification of the source of the fish.
The Minister’s authority to impose conditions in licences is given for “…the proper management and control of fisheries and the conservation and protection of fish”.
- The Trial Judge’s Decision:
The trial judge was satisfied that the “…Federal jurisdiction to regulate the fishery is unique, sole, and complete: the Province has no jurisdiction over fishing”[xxviii]. He noted correctly that this jurisdiction was derived from section 91(12) of the Constitution Act, 1867 and that “[l]ong before the union of this Province with Canada…the question of jurisdiction over fishery regulation in Canadian waters was litigated and resolved in favour of the Federal Crown”[xxix]. He also noted correctly that the Terms of Union, while providing for the transition from Newfoundland-based to Federal management of the fishery, “…specifically recognized jurisdiction over fisheries ultimately vested in the Federal authority”[xxx].
The trial judge dismissed the appellants’ claim that the Government of Canada has no jurisdiction inside three miles of the coastline, traditionally the territorial waters of Newfoundland. He questioned the operation of the so-called “headland to headland” rule and concluded that the doctrine of Crown honour did not apply to residents of this province, whether to permit them to catch fish for personal consumption, or for any other reason, because, in his words, “…there are no indigenous aboriginal communities on the island of Newfoundland”[xxxi].
The trial judge concluded his judgment with this synopsis:
On entry into Confederation, Newfoundland assumed the same position as if Confederation had been achieved in 1867. As earlier discussed, this included recognition of exclusive jurisdiction over the fishery in the Federal Crown. There is no reason to distinguish between fishing for trade, barter or personal consumption.[xxxii]
I am satisfied on the standard of correctness that applies to my review of the trial judge’s decision that his decision is right. He was alive to the arguments raised by the appellants and dealt with each in its turn. He concluded, and I agree with him, that the Government of Canada has exclusive jurisdiction in managing and controlling the Fisheries in all sea coast and inland waters of this province. I will explain further.
- The Fisheries Act and the Terms of Union:
The appellants claim that Newfoundland retained jurisdiction over Fisheries in its territorial waters (i.e. inside the three-mile limit) because of the Terms of Union. They argue that only those laws listed in Term 22(1) of the Terms of Union were affected by union with Canada. Those laws, they submit, were associated exclusively with the salt fish industry and could not possibly apply to recreational cod fishing for personal consumption.
The appellants’ claim misconstrues the Constitution Act, 1867 and the Terms of Union and defies logic. Section 91(12) of the Constitution Act, 1867 confers authority over “Sea Coast and Inland Fisheries” on the Government of Canada. Numerous decisions of the Supreme Court of Canada – Reference re Provincial Fisheries, North v. Canada, Re B.C. Fisheries, Re Johnson, and Ward v. Canada, to name but a few – have confirmed the exclusivity of Federal jurisdiction over the fishery. In Re Johnson, Furlong, C.J.N. said “…the Fisheries Act properly occupied the whole field of fisheries legislation which belonged to the Federal jurisdiction….”[xxxiii] Although the Supreme Court of Canada made clear in Ward that Federal Fisheries power is “not unlimited”, it is clear that Federal authority extends to regulating a recreational food fishery.
The appellants’ claim ignores the obvious construct of what was achieved by the Constitution Act, 1867 and the Terms of Union. It reverses the logic of those instruments and stresses what the appellants suppose was unsaid while blithely ignoring what is clearly stated. Term 3 of the Terms of Union applies all the laws of Canada up to the time of Union with Canada to Newfoundland as though it had been one of the original confederating parties – except, of course, those that are varied by the Terms of Union.
Thus, sections 91 and 92 of the Constitution Act, 1867, applied to Newfoundland at the time of Union. They carved up jurisdiction over forty-five subject matters. Twenty-nine of those were assigned to the Federal government and sixteen to the Provincial governments. Jurisdiction over “Sea Coast and Inland Fisheries” was assigned to the Government of Canada. Accordingly, the Government of Canada had jurisdiction over “Sea Coast and Inland Fisheries” in Newfoundland in 1949, just as it had in all other provinces of Canada.
The Terms of Union did vary that jurisdiction somewhat, but only temporarily to allow the province to retain the Fisheries laws specified in Term 22 for five years after Confederation. The Terms of Union also allowed the province to retain its Fisheries Board and the Board was authorized to administer the Newfoundland Fisheries laws that had been retained. After five years, the Government of Canada could repeal and revoke any of those laws without Provincial consent. It could even revoke Newfoundland laws within the first five years if it had Provincial consent. And, of course, while the Government of Canada did not act within or even immediately upon the expiration of those five years, it did act eventually and by 1960 had repealed and replaced all the laws left to Newfoundland when it joined Canada; and it had added a plethora of new ones.
The Terms of Union expressly acknowledge Federal jurisdiction over Fisheries as I have just demonstrated. But there is, aside from express acknowledgment, a tacit recognition which is just as compelling: Newfoundland agreed to the Terms of Union with Canada, and Term 22 in particular. Term 22 defers to Federal jurisdiction over Fisheries and it acknowledges that Newfoundland was content with the arrangement agreed upon. Implicit in the Term 22 is a recognition that the Government of Canada held the residual authority over Fisheries and Newfoundland was simply retaining what it could of the sovereign position that it had once held in Fisheries to ease the transition to the new management regime.
Newfoundland was understandably concerned about the immediate impact of Confederation on its most important industry in the present knowledge that the industry would pass to Federal control when the Union was finalized. It sought and received from the residual authority – the Government of Canada – assurances that the industry would be protected until the Federal government developed the infrastructure and legislative base to avoid calamity in the fishery.
This is not the stance of a government that believed it was retaining control of the fishery. Rather it is consistent with what it had agreed to when it negotiated Newfoundland’s entry into Confederation: give over control of the fishery (and in many other areas it had formerly controlled) to the Federal government in the bargain to join the Union. It is not as though Newfoundland was particularly bothered by its choice. After all, the cost of managing the fishery was a burden to Newfoundland. The cost of operating the Fisheries Board was the main part of that burden and Newfoundland was happy to pass that cost to the Government of Canada under Term 22(2).
Newfoundland’s agreement to pass jurisdiction over Fisheries to the Government of Canada has been acknowledged many times over, both overtly and tacitly, in the almost six decades that have passed since union with Canada. For example, Newfoundland has never asserted jurisdiction over Fisheries, whether by legislative act, declaration or otherwise. Nor has it challenged Federal jurisdiction in the courts, even in those case where its own legislation was under attack because of conflict with Federal legislation.
In Re Johnson, the Newfoundland Court of Appeal declared section 15 of Newfoundland’s Seal Fishery Act[xxxiv], which prohibited killing seals on Sunday, invalid because it was in conflict with Regulation 24 of The Seal Fishery Regulations[xxxv], passed by the Government of Canada pursuant to the Fisheries Act.
Gushue, J.A. acknowledged the Newfoundland government’s ambivalent stance towards its own legislation in these terms: “It should be lastly noted that the Attorney General of Newfoundland, through counsel, appeared as intervenor in this matter. It is significant that, while not agreeing that the Seal Fishery Act as a whole was a nullity, he did accept the conclusion as to Section 15 of that Act reached by Mahoney, J. [of the Trial Division], and confirmed by this Court.”
Likewise, in this case. The Attorney-General of Newfoundland received notice, as he must, of the appellants’ attack on the constitutional validity of Federal Fisheries laws. He chose not to intervene even though the appellants argue that his government has jurisdiction in the area.
- By the Crown’s Honour:
The appellants’ argument based on the memorandum entitled “Statements on Questions Raised by the Newfoundland Delegation” is equally flawed. The appellants focus on the Government of Canada’s response about “Trawling”, in which it confirmed that Newfoundland trawlers could fish up to three miles of the Newfoundland coastline after the Union, just as they had been doing before Confederation. In other words, Newfoundland trawlers would not be held to fishing outside of the Canadian limit of twelve miles.
The appellants claim that the Government of Canada conferred jurisdiction to the Newfoundland government over Fisheries inside of three miles by this measure. But the memorandum does not say so. In fact it says the opposite. This is another example of how the appellants ignore what the printed word says so they can argue from what they contend is implied.
The same reality applies work here as to the interpretation of Term 22 of the Terms of Union: The Government of Canada could only assure the Newfoundland delegates that Newfoundland trawlers could fish to the three-mile limit if the Government of Canada controlled inside the three-mile limit, as well as outside of it. Similarly, the Newfoundland delegates would only accept that assurance (or the need for it) if they agreed the Federal government had jurisdiction in those areas.
Likewise, with respect to the applicability of the “headland to headland” rule. The statement about the rule contained in the Prime Minister’s memorandum – “The ‘headland to headland’ rule, as it now applies to Newfoundland, will continue to apply” – begs the obvious questions: How could the Government of Canada confirm that the rule applied unless it had jurisdiction in the area? Or, equally, why would the Newfoundland government seek clarification on this from the Government of Canada unless it accepted its jurisdiction?
In short, the memorandum contains no representation, express or implied, that the Federal government had jurisdiction in Newfoundland’s traditional territorial waters, the zone within three miles offshore. But even if it did, the doctrine of Crown honour does not apply here.
The doctrine is based on promises made by the Crown to those towards whom the Crown owes a fiduciary duty. The doctrine demands that the Crown honour the spirit and the words of its promises, that it avoid trying to obtain “what can be technically justified under the current law” and always act so as to preserve its integrity and credibility.
The doctrine does not apply in this case. The appellants have not provided evidence of any broken promises the Government of Canada made to the Newfoundland government about Fisheries in Prime Minister St. Laurent’s December 11, 1948 memorandum. There is, for example, no evidence that Newfoundland trawlers were not permitted to fish to the three-mile limit, or that trawler licensing was not “based on securing the maximum efficiency for the province’s fishing industry and the welfare of its shore communities”. Nor have the appellants identified themselves or any other Newfoundland group to whom the Government of Canada owed a fiduciary duty in respect of Fisheries.
Finally, the appellants’ claim that their circumstances compare to those of Donald Marshall or Steve and Roddy Powley is disingenuous in the extreme. Donald Marshall[xxxvi] is a Mi’kmaq Indian who caught eels with a prohibited net and sold them without a commercial fishing licence. When he was charged under section 78(a) of the Fisheries Act he relied on a series of treaties made in 1760-61 between the Mi’kmaq and the British Governor of Nova Scotia. Mr. Marshall did not apply for a licence from the Government of Canada, nor did he even acknowledge that he needed one.
Similarly, Steve and Roddy Powley[xxxvii] are members of the Métis community in and around Sault Ste. Marie, ON. They shot and killed a bull moose near Sault Ste. Marie on October 22, 1993. They had no Outdoor Cards, valid licences to hunt moose or validation tags from the Ministry of Natural Resources in Ontario authorizing them to hunt in the area. They affixed a handwritten tag to the ear of moose indicating the time, date and place where it had been killed and stated that the animal had been taken to provide food for the winter. Steve Powley signed the tag and wrote his Ontario Métis and Aboriginal Association membership number on it. The Powleys were charged with hunting and possessing moose without a licence. They relied on their constitutionally protected right to hunt for food under section 35 of the Constitution Act, 1982 in defending themselves.
By contrast, the appellants applied for and obtained recreational food fishing licences from DFO. They each received fifteen tags, of which George Nichol had affixed twelve to cod fish in the boat by the time the Fisheries Officers inspected it. The Fisheries Officers told the appellants they were initiating an investigation of the incident, read them the standard police caution and advised them of their right to retain and instruct counsel. After hearing the caution, and being advised that all cod had to be tagged immediately after they were caught, Mr. Bouzan said: “I didn’t read my licence. It’s my own fault, I should have read the fine print”[xxxviii].
Neither appellant asserted any traditional right to catch cod fish for personal consumption nor did they challenge the Fisheries Officers’ when they seized their catch and the unused tags. And, of course, Mr. Bouzan’s comment that he “should have read the fine print of his licence” clearly acknowledges that he felt bound by the licence conditions.
Richard Bouzan and George Nichol appealed their convictions in the Provincial Court for failing to comply with conditions in a recreational cod fishing licence requiring them to tag all cod fish immediately as they caught it. The appellants did not dispute the facts but challenged the validity of the legislation under which they were charged. In essence, the appellants claim that the Government of Canada has no jurisdiction to regulate catching fish for personal consumption within three miles of the coastline of Newfoundland and Labrador. The trial judge dismissed the appellants’ attack on the legislation.
The trial judge did not err in his decision. There is no merit to the appellants’ claim, whether based on statute, the Terms of Union between Newfoundland and Canada, the case law, or the doctrine of Crown honour. The appeal is dismissed and the trial judge’s decision is affirmed in all aspects.
In the result, I dismiss the appellants’ appeal of their conviction on October 28, 2005 in Provincial Court at Grand Bank, NL of a breach of section 22(7) of the Fishery (General) Regulations, which is punishable under section 78(a) of the Fisheries Act. The trial judge’s decision is affirmed in all aspects.
[ii] R.S.C. c. F-14.
[iii] I will discuss what the appellants consider to be “territorial waters” in more detail later in these reasons.
[iv] (2005), 31 C.C.L.T. (3d) 9, 735 A.P.R. 65, 247 Nfld. & P.E.I.R. 65 (NLCA).
[v]  W.D.F.L. 2984,  W.D.F.L. 3005,  W.D.F.L. 2993, 14 R.F.L. (6th) 256, 735 A.P.R. 82, 247 Nfld. & P.E.I.R. 82 (NLCA).
[vi] 2005 NLTD 138, 250 Nfld. & P.E.I.R. 55, 746 A.P.R. 55 (NLTD).
[vii] Housen v. Nikolaisen,  S.C.J. No. 31, 10 C.C.L.T. (3d) 157, 211 D.L.R. (4th) 577,  7 W.W.R. 1, 219 Sask. R. 1, 272 W.A.C. 1, 30 M.P.L.R. (3d) 1,  2 S.C.R. 235, 286 N.R. 1, REJB 2002-29758, J.E. 2002-617 (SCC), paragraph 25.
[viii] The province is more properly called Newfoundland and Labrador, of course but it was known simply as Newfoundland at the time of Confederation with Canada. The name was changed by an amendment of Canada’s Constitution Act, approved on December 6, 2001.
[ix] U.K., 30 & 32 Victoria, c. 3.
[x] The Newfoundland Act, U.K. 12 & 13 Geo. VI, c. 22, was an act of the British Parliament that confirmed and gave effect to the Terms of Union agreed to between the Canada and Newfoundland on March 23, 1949. It was originally titled the British North America Act 1949, but was renamed when the Canadian Constitution was patriated from the United Kingdom in 1982.
[xi] Term 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 and Labrador had been one of the provinces originally united except in so far as varied by these Terms and except such as are in terms made or by reasonable intendment may be held to be specifically applicable to or only to affect one or more and not all of the provinces originally united.
[xii] Term 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 and Labrador according to the authority of the Parliament or of the Legislature under the Constitution Acts, 1867 to 1940, 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 made such orders, rules, or regulations or the body or person that has power to make such orders, rules, or regulations alter the date of Union, according to their respective authority under the Constitution Acts, 1867 to 1940.
(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 and Labrador 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 pan thereof so proclaimed; and
(c) could be repealed by the Parliament of Canada under paragraph one of this Term
(3) Notwithstanding anything in these Terms, the Parliament of Canada may with the consent of the Legislature of the Province of Newfoundland and Labrador repeal any law in force in Newfoundland at the date of Union.
[xiii] Term 22: (1) In this Term, the expression "Fisheries Laws" means the Act No. 11 of 1936, entitled "An Act for the creation of the Newfoundland Fisheries Board", the Act No. 14 of 1936, entitled "An Act to Prevent the Export of Fish Without Licence", the Act No. 32 of 1936, entitled "An Act to Amend the Newfoundland Fisheries Board Act (No. 11 of 1936)", the Act No. 37 of 1938, entitled "An Act Further to Amend the Newfoundland Fisheries Board Act, 1936", the Act No. 10 of 1942, entitled "An Act Respecting Permits for the Exportation of Salt Fish", the Act No. 39 of 1943, entitled "An Act Further to Amend the Newfoundland Fisheries Board Act, 1936", the Act No. 16 of 1944, entitled "An Act Further to Amend the Newfoundland Fisheries Board Acts, 193638", and the Act No. 42 of 1944, entitled "An Act Further to Amend the Newfoundland Fisheries Board Act, 1936", in so far as they relate to the export marketing of salted fish from Newfoundland to other countries or to any provinces of Canada.
(2) Subject to this Term, all Fisheries Laws and all orders, rules, and regulations made thereunder shall continue in force in the Province of Newfoundland and Labrador as if the Union had not been made, for a period of five years from the date of Union and thereafter until the Parliament of Canada otherwise provides, and shall continue to be administered by the Newfoundland Fisheries Board; and the costs involved in the maintenance of the Board and the administration of the Fisheries Laws shall be borne by the Government of Canada.
(3) The powers, authorities, and functions vested in or imposed on the Governor in Commission or the Commissioner for Natural Resources under any of the Fisheries Laws shall after the date of Union respectively be vested in or imposed on the Governor General in Council and the Minister of Fisheries of Canada or such other Minister as the Governor General in Council may designate.
(4) Any of the Fisheries Laws may be repealed or altered at any time within the period of five years from the date of Union by the Parliament of Canada with the consent of the Lieutenant Governor in Council of the Province of Newfoundland and Labrador and all orders, rules, and regulations made under the authority of any Fisheries Laws may be revoked or altered by the body or person that made them or, in relation to matters to which paragraph three of this Term applies, by the body or person that under the said paragraph three has power to make such orders, rules, or regulations under the Fisheries Laws after the date of Union.
(5) The Chairman of the Newfoundland Fisheries Board or such other member of the Newfoundland Fisheries Board as the Governor General in Council may designate shall perform in the Province of Newfoundland and Labrador the duties of Chief Supervisor and Chief Inspector of the Department of Fisheries of the Government of Canada, and employees of the Newfoundland Fisheries Board shall become employees in that Department in positions comparable to those of the employees in that Department in other parts of Canada.
(6) Terms eleven, twelve, thirteen and eighteen are subject to this Term.
[xiv] Powers of the Parliament
91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,
12. Sea Coast and Inland Fisheries.
[xv] 7-8 Elizabeth II, c. 49.
[xvi] No. 10, 1942.
[xvii] 8-9 Elizabeth II, c. 15.
[xviii]  4 W.W.R. 457, 37 Alta. L.R. (3d) 153, 195 N.R. 1, 105 C.C.C. (3d) 289, 133 D.L.R. (4th) 324,  2 C.N.L.R. 77,  1 S.C.R. 771, 181 A.R. 321, 116 W.A.C. 321, EYB 1996-66856,  A.W.L.D. 454 (SCC).
[xix] Ibid, para. 41.
[xx] Arnot, Judge David, “Treaties as a Bridge to the Future”, (2001), 50 U.N.B. L.J. 57, page 66.
[xxiii]  A.C. 700 (JCPC). This case is otherwise known as “Canada (Attorney-General) v. Ontario (Attorney)”.
[xxiv] (1906), 37 S.C.R. 385 (SCC).
[xxv] (1913), 15 D.L.R. 308 (JCPC).
[xxvi] (1979), 24 Nfld. & P.E.I.R. 227, 65 A.P.R. 227, 32 N.R. 539, 107 D.L.R. (3d) 749 (NLCA). The Supreme Court of Canada dismissed an appeal from this decision in 1982. Their judgment is found in (1982), C.R. (3d) 273, (sub nom. Moore v. Johnson; Moore v. Snarby),  1 S.C.R. 115, 40 N.R. 143, 36 Nfld. & P.E.I.R. 1, 101 A.P.R. 1, 66 C.C.C. (2d) 441 (sub nom. Moore v. Snarby) 135 D.L.R. (3d) 224 (SCC).
[xxvii]  1 S.C.R. 569 (SCC).
[xxviii] Paragraph 1, page 2 of the trial judge’s reasons for judgment.
[xxix] Ibid, paragraph 21, page 8.
[xxx] Ibid, paragraph 36, page 15.
[xxxi] Ibid, paragraph 74, page 29.
[xxxii] Ibid, paragraph 76, page 30.
[xxxiii] Ibid, footnote 26, paragraph 3.
[xxxiv] R.S.N. 1970, c. 347.
[xxxv] P.C. 1966-904.
[xxxvi] R. v. Marshall (1999), 177 D.L.R. (4th) 513 (SCC), as clarified by additional reasons reported in (1999), 179 D.L.R. (4th) 193 (SCC).
[xxxvii] R. v. Powley (2003), 230 D.L.R. (4th) 1 (SCC).
[xxxviii] Ibid, endnote xxviii, paragraph 12, page 5.