30 October 2005

The Constitutional Fish - the decision

On Friday, October 28, 2005 Rick Bouzan and George Nichol were found guilty of breaching federal fisheries regulations during the 2004 recreational fishery.

The decision by Provincial Court Judge Harold Porter was covered by news media, although both the Telegram and Independent versions didn't accurately reflect the decision. Both included comments by the lawyer for Bouzan and Nichol and comments by the defendants that the decision was based, in part, on the fact that Newfoundland and Labrador was a colony at the time of Confederation.

Here is a summary of the decision rendered by the court, taken from the written decision. An online version will be available from the Canadian Legal Information Institute, CanLII.

The decision can be broken into two parts. First there is the offense itself, which was a breach of federal fisheries regulations requiring that fish caught had to be taken on being landed. The purpose of the regulation, while not mentioned in the decision, appears to be aimed at preventing highgrading. This is the practice of catching many more fish than allowed (in this case 15) and the keeping only the best ones.

Both the prosecution and the defence filed an agreed statement of facts. Here it is in part:

"As the Officers were coming alongside [the defendants' boat] they told both gentlemen not to bother tagging any more fish. Officer Walsh who was at the front of the patrol boat observed Mr. Nicholls tag approximately 3 to 4 codfish while the other man, Mr. Bouzan, had not tagged any fish as he had just found his tags and had them placed on the seat of the boat next to him.

Once alongside Officers Walsh and Ward told the men they would be conducting an inspection of their vessel. Officer Walsh obtained both men's Department of Fisheries and Oceans 3Ps recreational cod licenses and began filling out an inspection form.
Officer Ward next asked the men to hand over their catch so that he could inspect it.

The men handed over a fish pan full of cod with one redfish in it as well to Officer Ward who then inspected the catch aboard the patrol vessel. Twelve cod fish were found tagged with tag # 012259 belonging to Mr. Nicholl and 17 cod fish were not tagged. No cod were tagged from Mr. Bouzan's license which was tag # 010857. Fifteen of the cod had been gutted prior to tagging and appeared to the officers to have been caught for some time.

Officer Ward asked the men when they had come out fishing and both men said they had been out "most of the day." No fish entrails were present aboard the vessel or floating in the water next to the boat. The men said they were just going to stop fishing and head to port. Both officers told both men they could return to port and that they would follow them in.

After arriving at a wharf in Little Bay East, Newfoundland both officers separated the tagged cod from the untagged ones and then headed over to where both men landed and returned the tagged cod and their fish pan to them. At that time both officers identified themselves to both men with their badges and identification cards.

Officer Walsh told both men that an investigation had been initiated. At approximately 1510 hours both men were read the standard caution by Officer Walsh and rights to council [sic] were extended. Both men said they understood all parts and did not want to contact duty council [sic] at that time.

Officer Walsh told both men that they may be charged with failing to tag cod immediately after catching the cod. Officer Walsh told both men that their untagged cod was seized and that their unused cod tags would be seized as part of the investigation. Both men supplied Officer Walsh with their tags at that time. All fifteen of Mr. Bouzan's recreational cod tags were seized and three unused tags were seized from Mr. Nichol's license.

After caution Mr. Bouzan said, "I didn't read my license. It's my own fault, I should have read the fine print." Mr. Bouzan said this after the officers told both men that all cod caught must be tagged immediately after catching the cod while recreational cod fishing. Both men were told by the Officers that they would be in touch with them at a later date. Both officers then left the area and continued their patrol.

The seized fish were stored at the DFO Warehouse in Marystown and the unused tags were stored at the DFO Office in Marystown.
It was a condition of both mens''’ license that any cod caught must "‘be tagged immediately after it is caught in the following manner: A non- used tag, issued with this license and valid for the NAFO division being fished, must be affixed through the gill and mouth of each Atlantic Cod. The tag must be properly sealed such that the tag cannot be re-opened or removed."’ Each license had 15 tags issued with it."”

That's pretty straightforward and, on that basis, the men were found guilty. The court was asked to consider a constitutional challenge to the jurisdiction of the Government of Canada over fisheries within three miles of the low water mark around Newfoundland and Labrador. The first question posed was as follows:

"Does the government of Canada have the jurisdiction to regulate the catching of groundfish, including cod, within three miles of the coast of Newfoundland and Labrador going from headland to headland?"

On this matter, Judge Porter concluded based on case law before and after 1949 as well as the Terms of Union that the Government of Canada has exclusive jurisdiction over fisheries matters in and around Newfoundland and Labrador. The court was asked to consider a second question, namely:

"If the government of Canada has the jurisdiction to regulate the catching of groundfish, including cod, within three miles of the coast of Newfoundland and Labrador going from headland to headland, does that jurisdiction include the right to regulate the catching of groundfish, including cod, for personal consumption?"

Judge Porter found that the federal jurisdiction over fisheries matters and that this jurisdiction includes fisheries within three miles of Canadian land as well as offshore islands. He rejects the notion of a three mile limit as having any grounds since the provincial government exercises jurisdiction for bird and land animal conservation over islands which are more than three miles from shore.

As well, he found that established case law held that a provincial government has jurisdiction over matters within its legislative competence within its boundaries. Since the Terms of Union do not include fisheries matters within the jurisdiction of the Province of Newfoundland and Labrador, the issue of where the provincial boundary exists isn't relevant in this matter. As to the issue of using fish for personal consumption, it is worthwhile to quote the decision in its entirety:

[73] The third part of the second question narrows the focus to not just fishing for cod, but to fishing for cod "“for personal consumption"”. In this regard, say the Defendants, they are in the same situation as the Powleys were. The Powleys were Metis in Ontario who said that they had a right to take moose, withoulicensece, for personal consumption: see Powley [2003] 2S.C.R. 207.

[74] Contrary to the Metis in Ontario, there are no indigenous aboriginal communities on the island of Newfoundland: see Drew [2003] N.J. 177. Even if there were, there is no suggestion that the Defendants claim membership in such a community.

[75] As a matter of Crown honour, say the defendants, the federal government must have a referendum among the residents of this Province before they can find the jurisdiction to regulate the taking of fish for personal consumption.

[76] This position is untenable: there was a referendum prior to Newfoundland entering Confederation. 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.

At no point in the decision did Judge Porter make any reference to the notion that Newfoundland and Labrador was a colony at the time of Confederation. Since I wasn't in court, I cannot say for certain he made no mention of this issue in his remarks.

But let's be clear: there is nothing about this issue at all in the written decision.

Judge Porter's decision is based on both the agreed upon statement of facts presented by both parties in court with respect to the offence. On the constitutional issues, Porter relied on case law, the Terms of Union and a variety of statutes and proclamations dating back to the 18th century.

Nichol and Bouzan were fined $100 each for having untagged cod in the possession. in news reports, Bouzan has indicated the case has cost the two defendents $11, 000 so far. They intend to appeal the conviction.

It will be interesting to see what happens when and if the matter gets to the Supreme Court of Newfoundland and Labrador, Court of Appeal. I'd wager the thing will never get to thSuprememe Court of Canada.

The whole thing is black letter law.