R v. Beaverbones

In Fish Cases, Offences, Variation Orders on (Updated )

This case involved charges under the Federal Fisheries Act of fishing during a closed season. The main defence in the case involved a challenge of the authority of the Regional Director to make a variation order that purported to close the waters in question to fishing on the grounds that it had been improperly subdelegated by the Regional Director-General.

The relevant legislation was s. 6(1) of the Fisheries Act which provided that: "Where a close time, fishing quota or limit on the size of weight of fish is fixed in respect of an area . . ., the Regional Director-General, may, by order vary that close time, fishing quota or limit in respect of that area or any portion."

After extending the test set out R. v. Corcoran (1999), 181 Nfld. & P.E.I.R. 31, the court held the subdelegation to be invalid on the following basis:

"I find that in order for a public official such as the Regional Director- General to subdelegate his statutory authority the following questions must be determined:

[i] Is the act in question legislative or administrative?
[ii] However characterized, can the public official subdelegate the act in question?
[iii] If so, is the subdelegate a person to whom the power can legitimately be subdelegated?
[iv] If so, is the nature and scope of the subdelegation otherwise permissible?

31 In this case, I have concluded that the Regional Director-General may subdelegate to the Regional Director the power to make a variation order. However, the subdelegation must be for a brief and defined period of time and must be necessary from a practical standpoint. Additionally, the Regional Director should provide guidelines on how to exercise the subdelegation.

32 Because in this case, the subdelegation was of an indefinite duration, I find that the order of September 12, 2014 that both defendants are alleged to have breached to have been invalid."