McLACHLIN, C.J.C. [for the Court]: -- [...]

¶ 3 Ford Ward is a licensed fisherman and sealer who resides in La Scie, a town on the north coast of Newfoundland. During the period in question, he held a commercial sealing license issued under the authority of the Fisheries Act, R.S.C. 1985, c. F-14, which permitted him to harvest hooded and harp seals. During March and April of 1996, Ward engaged in the seal hunt off the northeast coast of Newfoundland in an area known as "the Front". On the voyage in question, Ward harvested approximately 50 seals, a number of which included hooded "blueback" seals.

¶ 4 On November 20, 1996, Ward was charged with selling blueback seal pelts contrary to s. 27 of the Marine Mammal Regulations, SOR/93-56 (the "Regulations"), which prohibits the sale, trade or barter of whitecoat and blueback seals. Ward applied to the Supreme Court of Newfoundland, Trial Division, for a declaration that s. 27 was ultra vires the Parliament of Canada. The parties agreed to suspend trial proceedings on the charges pending the outcome of the constitutional challenge. [...]

B. Whether Section 27 of the Regulations is in Relation to the Criminal Law

¶ 50 Having concluded that the challenged legislation is constitutionally valid under the federal fisheries power, we need not consider whether it might also be valid under the criminal law power. However, in view of the fact that the issue was fully argued, I comment briefly on it.

¶ 51 Although the criminal law power is broad, it is not unlimited [...]. Legislation may amount to criminal law if it possesses three components: a prohibited act, a penalty and a valid criminal law purpose [...]. Examples of a criminal law purpose include public peace, order, security, health and morality. Courts also look to whether the particular law has traditionally been held to be criminal law: see Morgentaler, supra.

¶ 52 In this case, a prohibited act (i.e. the sale of bluebacks and whitecoats) and a penalty (contained in s. 78 of the Fisheries Act), are present. However, no valid criminal law purpose has been established.

circumstances here disclosed capable of constituting a criminal purpose? Second, if so, then is the impugned legislation directed to this purpose? The Criminal Code, R.S.C. 1985, c. C-46, contains prohibitions against cruelty to animals, and I am prepared to assume without deciding that the federal criminal law powers could extend to prohibitions on the killing and manner of killing of animals like seals as a matter of public peace, order, security, health or morality. However, I see nothing in the record that supports the view that s. 27 in fact possesses such a criminal law purpose.

¶ 54 The record indicates that there was public disapproval towards the commercial hunting of baby seals in general and the clubbing of baby seals in particular. It was this disapproval that manifested itself during the anti-sealing campaign, leading to the European Community import ban, market boycotts, and the establishment of the Malouf Commission to study the sealing industry.

prohibition. Public peace, order, security and morality played no direct role in its adoption. Indeed, the Malouf Commission suggested that the killing of young seals through clubbing and shooting was not inhumane. It is also of note that s. 27 prohibits the sale of whitecoats and bluebacks, not their killing. If the mischief Parliament sought to remedy was the killing of young seals on ethical grounds, one would expect to find an outright prohibition on killing.

¶ 56 Without suggesting that measures related to the treatment or killing of animals could not have a valid criminal law purpose, it is simply not made out in this particular case. The wording of the legislation along with the legislative history suggest that the legislation was enacted to manage the fisheries by eliminating the large-scale killing and commercial hunting of whitecoats and bluebacks, and not to criminalize their killing or sale.

VII. Conclusion and Disposition

¶ 57 I conclude that s. 27 of the Regulations, prohibiting the sale, trade or barter of whitecoat and blueback seals, is a valid measure under the federal fisheries power. I would therefore allow the appeal, restore the decision of the trial judge, and find that s. 27 of the Regulations is a valid exercise of Parliament’s jurisdiction under sea coast and inland fisheries contained in s. 91(12) of the Constitution Act, 1867. [...]