9^th Edition\Constitutional Law-Federalism\WardvCanada Pith and Substance

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. [...]

¶ 8 The past 30 years have seen vigorous anti-sealing campaigns directed largely at the killing

of seal pups at the Front and in the Gulf of St. Lawrence. In 1983, the Council of the European Communities issued a directive banning the import of whitecoat and blueback skins. A second directive in 1985 extended the ban to October 1989. The campaigns all but destroyed the traditional markets for Canadian seal products and threatened to spread to other fish products, particularly canned fish. In June of 1984, the federal government established the Royal Commission on Seals and the Sealing Industry in Canada, also known as the Malouf Commission. In light of the circumstances surrounding the campaigns and the market threat to other fish products, the Malouf Commission recommended in its Report that the large-scale commercial hunting of whitecoats and bluebacks "should not be permitted", and non-commercial hunting, "to the extent it occurs at all, should be carefully regulated and strictly limited" (Seas and Sealing in Canada: Report of the Royal Commission on Seals and the Sealing Industry in Canada (1986), vol. 1, at p. 40).

¶ 9 The government responded by passing new regulations, including the ban on the sale, trade or barter of whitecoats and bluebacks here at issue. [...]

V. Issue

of blueback seals is a valid exercise of the federal fisheries power or the federal criminal law power.

VI. Analysis

¶ 16 In order to resolve the issue posed by this appeal, we must determine whether s. 27, in pith and substance, falls under the federal power over fisheries or the criminal law. The pith and substance analysis asks two questions: first, what is the essential character of the law? Second, does that character relates to an enumerated head of power granted to the legislature in question by the Constitution Act, 1867? [...] We must address these questions first with respect to the federal fisheries power, second with respect to the federal criminal law power.

1. The Pith and Substance of Section 27 of the Regulations in Relation to the Fisheries Power

¶ 17 The first task in the pith and substance analysis is to determine the pith and substance, or essential character of the law. What is the true meaning or dominant feature of the impugned legislation? This is resolved by looking at the purpose and the legal effect of the regulation or law: see Reference re Firearms Act, supra, at para. 16. The purpose refers to what the legislature wanted to accomplish. Purpose is relevant to determine whether, in this case, Parliament was regulating the fishery, or venturing into the provincial area of property and civil rights. The legal effect refers to how the law will affect rights and liabilities, and is also helpful in illuminating the core meaning of the law: see Reference re Firearms Act, supra, at paras. 17-18; Morgentaler, supra, at pp. 482-83 [S.C.R.]. The effects can also reveal whether a law is "colourable", i.e. does the law in form appear to address something within the legislature’s jurisdiction, but in substance deal with a matter outside that jurisdiction: see Morgentaler, supra, at p. 496 [S.C.R.]. In oral argument, Ward expressly made clear that he is not challenging the law on the basis of colourability.

of interpretation. The court looks at the words used in the impugned legislation as well as the background and circumstances surrounding its enactment [...]. In conducting this analysis, the court should not be concerned with the efficacy of the law or whether it achieves the legislature’s goals [...].

¶ 19 Section 27 of the Regulations, read alone, is simply a prohibition of sale, trade or barter, suggesting it might fall within the provincial rather than federal domain. However, we cannot stop at this point. We must go further. What is the purpose of s. 27, and what is its effect? How does it fit into the regulatory scheme as a whole? The question is not whether the Regulations prohibit the sale so much as why it is prohibited.

¶ 20 To answer this question, we need go no further than the findings of the trial judge. Wells J. found that the purpose of s. 27 of the Regulations was to control the killing of bluebacks and whitecoats by prohibiting their sale, thus making it largely pointless to harvest them. In other words, the prohibition on sale, trade or barter is directed not to controlling commerce, but to preventing the harvesting of these seals.

¶ 21 This purpose is clear from both the Regulations as a whole and the legislative history. As discussed, s. 27 of the Regulations was adopted in response to the Malouf Commission, which recommended that the commercial harvest of bluebacks and whitecoats be curtailed. The reaction to this harvest destroyed the traditional seal markets and was threatening the markets for Canadian fish products abroad.

¶ 22 The method the government chose to curtail the commercial harvest of bluebacks and whitecoats was a prohibition on their sale, trade or barter. This, as Wells J. found, was because prohibiting the killing of bluebacks simply would not have worked. The seals are harvested while in the sea by hunters on boats. It is impossible to distinguish bluebacks from other seals in the water. Not until a blueback is brought aboard the boat does the seal-hunter know that he has taken one. When this happens, the seal-hunter knows that the seals in the area are bluebacks. Since he cannot sell, trade or barter bluebacks, he will stop killing them. This will tend to stop the commercial harvest of bluebacks, as recommended by the Malouf Commission. As Wells J. conceded, the method chosen may be imperfect. However, it is the only practical method for curtailing the commercial taking of bluebacks. In any event, as noted, the efficacy of the law is not a valid consideration in the pith and substance analysis.

¶ 23 Situating s. 27 in its context supports the view that it is neither directed at property nor at trade, but at curtailing the commercial hunting of bluebacks and whitecoats. The Regulations are enacted under the authority of s. 43 of the Fisheries Act, which permits the government to make regulations "for the proper management and control of the sea-coast and inland fisheries" and "respecting the conservation and protection of fish" (emphasis added). This notion of "management and control" of the fisheries is again reflected in s. 3 of the Regulations. The Regulations as a whole are concerned not with property, but with generally regulating the fishery, including details as to who may kill (with exemptions for Indians, Inuk and "beneficiaries" under certain aboriginal claim settlements), methods of killing, quotas and seasons for killing, allowable fishing areas, reporting duties, and provisions for observation of the seal fishery. Included are restrictions on the disposition of the edible parts of cetaceans or walruses, narwhal tusks and the prohibition on the sale, trade or barter of whitecoats and bluebacks at issue here. In short, the prohibition we are concerned with exists in the context of a scheme that is concerned with the overall "management and control" of the marine fisheries resource.

¶ 24 I conclude that Parliament’s object was to regulate the seal fishery by eliminating the commercial hunting of whitecoats and bluebacks through a prohibition on sale, while at the same time allowing for limited harvesting of these animals for non-commercial purposes. Stated another way, the "mischief" that Parliament sought to remedy was the large-scale commercial hunting of whitecoats and bluebacks. This was done to preserve the economic viability of not only the seal fishery, but the Canadian fisheries in general.

¶ 25 Turning to the effects of the legislation, s. 27 affects the legal rights of its subjects by prohibiting the sale of whitecoats and bluebacks that have otherwise been legally harvested. Ward submits that the legal effect of s. 27 is to regulate the property and processing of a harvested seal product. The argument amounts to saying that because the legislative measure is a prohibition on sale, it must be in pith and substance concerned with the regulation of sale. This confuses the purpose of the legislation with the means used to carry out that purpose. Viewed in the context of the legislation as a whole and the legislative history, there is nothing to suggest that Parliament was trying to regulate the local market for trade of seals and seal products. Ward’s argument that s. 27 is directed at regulating an already processed product because the seals are skinned and the meat preserved on the vessel similarly confuses the purpose of s. 27 with the means chosen to achieve it.

¶ 26 Ward also argues that the "close time" variation method would better avoid newborn seals being killed on the ice and the negative reaction the government was seeking to avoid than a prohibition on sale. This argument also fails. As previously mentioned, an inquiry into efficacy does not advance the pith and substance inquiry. The purpose of legislation cannot be challenged by proposing an alternate, allegedly better, method for achieving that purpose.

¶ 27 Finally, Ward submits that the purpose of s. 27 -- saving Canada’s markets for seal products -- had already eroded by the time it was introduced in 1993, citing the Malouf Commission in support. This is a variant on the efficacy argument. It was for the government to determine if a problem existed and if the means chosen would address it. Moreover, the evidence shows that the danger of damage to other sea products, like canned fish, continued to exist at the time the Regulations were adopted.

¶ 28 I conclude that the s. 27 prohibition on sale is essentially concerned with curtailing the commercial hunting of whitecoats and bluebacks for the economic protection of the fisheries resource. As such, it is in pith and substance concerned with the management of the Canadian fishery.

¶ 29 Having determined the pith and substance of s. 27, we must ask whether it fits within the federal fisheries power. This requires us to consider the scope of the fisheries power and its relationship to the provincial power over property and civil rights. More precisely, does the fisheries power extend beyond measures relating to conservation to the management of the resource to preserve its economic viability?

¶ 30 Before examining the scope of the federal fisheries power in relation to property and civil rights, it may be useful to consider the principles that guide the exercise. They are well known and I content myself with briefly summarizing them.

2. The principle of federalism must be respected: see Reference re Succession of Quebec, supra, at para. 55. Power is shared by two orders of government, each autonomous in developing policies and laws within their own jurisdiction subject to the courts which "control the limits of the respective sovereignties" [...]. In cases where federal and provincial classes of subjects contemplate overlapping concepts, meaning may be given to both through the process of "mutual modification" [...]. Classes of subjects should not be construed so broadly as to expand jurisdiction indefinitely [...]

¶ 31 With these principles in mind – flexibility and respect for the proper powers of both the federal government and the provinces – I approach the question at hand, the scope of the federal fisheries power.

¶ 32 Three different views on the scope of the federal fisheries power are presented:

¶ 33 Only the last theory is capable of supporting a regulation directed in pith and substance at curtailing the commercial hunting of young seals to protect the economic viability of the resource from retaliatory boycotts. The issue is therefore whether this theory of the fisheries power is valid. The jurisprudence suggests that it is. [...]

¶ 41 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" [...]; "a common property resource" to be managed for the good of all Canadians [...]. 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.

¶ 42 Although broad, the fisheries power is not unlimited. The same cases that establish its broad parameters also hold that the fisheries power must be construed to respect the provinces’ power over property and civil rights under s. 92(13) of the Constitution Act, 1867. This too is a broad, multi-faceted power, difficult to summarize concisely. For our purposes, it suffices to note that the regulation of trade and industry within the province generally (with certain exceptions) falls within the province’s jurisdiction over property and civil rights [...].

¶ 43 Thus we have before us two broad powers, one federal, one provincial. In such cases, bright jurisdictional lines are elusive. Whether a matter best conforms to a subject within federal jurisdiction on the one hand, or provincial jurisdiction on the other, can only be determined by examining the activity at stake. Measures that in pith and substance go to the maintenance and preservation of fisheries fall under federal power. By contrast, measures that in pith and substance relate to trade and industry within the province have been held to be outside the federal fisheries power and within the provincial power over property and civil rights.

¶ 44 The cases bear this out. Measures whose essence went to the regulation of fish processing and labour relations in the fishery have been held to fall outside the federal power. On the other hand, measures primarily related to the regulation of the fisheries resource but incidentally touching the sale of fish have been upheld as valid federal legislation. [...]

¶ 47 These cases suggest that measures essentially directed to regulating fish processing and labour relations fall under the provincial power over property and civil rights, and outside the federal fisheries power. If the activity is in pith and substance a matter of trade and industry within the province, it will not fall under the federal fisheries power merely because some aspects of the activity touch upon the fishery. Conversely, measures that are in pith and substance directed to the fishery fall within the federal fisheries power even though they possess aspects relating to property and civil rights.

¶ 48 It follows that the federal fisheries power is not confined to measures directed at conserving the resource, nor limited by the distinction between control of the resource in its natural state and at "point of sale". While Parliament must respect the provincial power over property and civil rights, the approach to be adopted is not simply drawing a line between federal and provincial powers on the basis of conservation or sale. The issue is rather whether the matter regulated is essentially connected -- related in pith and substance -- to the federal fisheries power, or to the provincial power over property and civil rights.

¶ 49 We earlier established that the regulation here at issue, while on its face a simple ban on sale, trade or barter, is in pith and substance concerned with curtailing commercial hunting of young seals to preserve the fisheries as an economic resource, vitally connected to protecting the economic viability of the Canadian fishery as a whole. It follows that s. 27 is a valid federal measure. This result fully respects the constitutional right of the provinces to control property and civil rights. If the essential character of the measure was directed toward regulating business or property within the province, it would be in pith and substance a matter of property and civil rights and outside federal jurisdiction. However, that is not the case. Section 27 of the Regulations is thus a valid exercise of the federal fisheries power. [...]

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. [...]