This case involved a civil action by the owner of the Spanish Trawler "Estai" against the Government of Canada arising out of its highly publicized seizure on the high seas in March of 1995. In response to various arguments advanced by the vessel owner, the trial court (2005 FC 1011 (link)) concluded as follows:
(1) Pursuant to the terms of the Coastal Fisheries Protections Act the regulations authorizing the arrest of the "Estai" on the high seas were valid and the ensuing arrest was therefore legal;
(2) When arresting the vessel, the authorities were not reckless and did not use excessive force;
(3) Ice damage was not proven;
(4) Given the stay of proceedings and remarkable circumstances, damages were awarded to cover out of pocket legal, ships agents expenses, loss of fishing income, and extra bunkers; and
(5) No punitive damages were ordered.
The Crown appealed the trial court’s award of damages and the the plaintiff cross appealed on a number of grounds, the main one being that the trial court erred in concluding that the regulations authorizing the arrest of vessel on the high seas were not authorized by the Coastal Fisheries Protection Act.
The court rejected the vessel owner’s cross appeal primarily upon a conclusion that the challenged regulations were intra virus. However, prior to doing so, it embarked upon an interesting review of the law with respect to the liability of the Crown for damages arising from the enactment of laws subsequently found to be unconstitutional. In doing so, it concluded that the Crown will not be liable unless it can be established that it was either acting in bad faith, was negligent or was reckless (para 61).
Appliction for leave to SCC dismissed  SCCA 119