R v. Ward

In Constitutional Cases, Fish Cases, Miscellaneous, Offences on (Updated )

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).