Counsel

Kevin Elliott / Brian Willkie — agent for the Federal Crown

Matthew Raffey — counsel for the defendant Kieran McCormick

Matthew Slough — self-represented

Judgment

JOUBERT J.:

[1] Introduction

This case involves an appeal by Kieran McCormick and Matthew Slough from their convictions and sentences imposed on September 5, 2017 in relation to charges laid under the Fisheries Act, R.S.C., 1985, c. F-14 (hereinafter "Fisheries Act") and the Ontario Fishery Regulations, SOR/2007-237 as amended (hereinafter "Regulations"). The trial was heard in Kenora, Ontario, by his Worship R. McNally.

[2] Preliminary Issue

Today's decision is a preliminary one, dealing with the issue of whether this Court has jurisdiction to hear the appeal. I propose to briefly set out the history of proceedings and position of the parties and then review and apply the law to the facts in this case.

I. History of Proceedings

[3] The Charges

The charges in issue are set out in a six-count Information that was sworn on July 19, 2016.

[4] Counts 1 and 2

Counts 1 and 2 allege that on or about March 19, 2016, in Clearwater Bay, Ontario, the Appellants committed the offences of unlawfully making a false statement to a fishery officer and unlawfully obstructing or hindering a fishery officer, contrary to sections 63(1) and 62 of the Fisheries Act, respectively.

[5] Counts 3 to 6

Counts 3 to 6 allege that on the same date and in the same location the Appellants committed the offences of unlawfully angling for Lake Trout, unlawfully using or possessing for use as bait a fish, unlawfully using a hook other than a barbless hook, and unlawfully fishing without a licence, contrary to sections 15, 29(2)(c)(i), 31(5)(a) and 3(1)(a) of the Regulations, respectively.

[6] Procedural History

The case first appeared before the Court on August 18, 2016, and was variously adjourned until the date of trial on September 5, 2017. In absentia, the Appellants were convicted and sentenced to fines on all counts. On October 2, 2017, they filed notice of their appeal in the Ontario Court of Justice and the case was ultimately scheduled for a hearing of the appeal on June 20, 2018. It was on that date that submissions were made on a preliminary issue dealing with jurisdiction. The parties had prepared and filed written submissions and after hearing their oral submissions I reserved in order to consider the respective positions and render decision.

II. Positions of the Parties

A. Position of the Respondent

[7] Federal Nature of Charges

The position advanced by the Respondent is that this Court does not have jurisdiction to hear the appeal. The Respondent submits that the charges in issue are federal charges. They were filed on a federal Information and were subject to a summary election. The charges are therefore properly considered criminal proceedings. The Respondent submits that the summary conviction proceedings of the Criminal Code, R.S.C., 1985, c. C-46 (hereinafter, "Criminal Code") apply and that for purposes of the present matter the appeal court should be the one set out in those provisions which, the Respondent submits, is the Superior Court of Justice.

[8] Provincial Offences Act Not Applicable

The Respondent submits that the appeal was incorrectly filed as an appeal before the Ontario Court of Justice, an error that unfortunately was not caught until late into the appeal proceedings. This notwithstanding, the Respondent submits that this matter simply is not a Provincial Offences Act matter. Mr. Elliott submits that the Provincial Offences Act, R.S.O. 1990, c. P.33 (hereinafter, "P.O.A.") has jurisdiction over provincial and not federal legislation save and except for matters involving federal offences designated as contraventions under the Contraventions Act, S.C. 1992, c. 47 (hereinafter "Contraventions Act"). In respect of the charges laid under the Regulations (counts 3-6), the Respondent submits that the prosecution could have proceeded in a way that would have engaged the P.O.A. process but opted to proceed by laying an Information and making a summary election. The Respondent submits that as a result all matters are subject to the procedure set out in the Criminal Code and the P.O.A. does not provide an alternative avenue for appeal.

B. Position of the Appellants

[9] Concurrent Jurisdiction Argument

The position advanced by the Appellants is that this Court has jurisdiction to hear the appeal. They submit that the Fisheries Act charges were included on the same Information as the charges under the Regulations and they argue that the latter charges were subject to the P.O.A. They submit that the charges were prosecuted as provincial offences and tried under the P.O.A. by a Justice of the Peace. They submit that throughout the appeal process the matter was treated as an appeal under those provisions. The Appellants acknowledge the application of section 813 of the Criminal Code, dealing with summary conviction appeals, but argue that the provision is expansive and point as evidence to the phrase "[e]xcept where otherwise provided by law". In their submission this is a case in which an alternative appeal process is otherwise provided for by law through section 116 of the P.O.A. It is through this Court's jurisdiction under that provision that this Court has jurisdiction to hear the appeal. The Appellants argue that, even if there is law to suggest that the Superior Court of Justice has jurisdiction over the appeal, there is "concurrent" jurisdiction through the availability of the appeal scheme as set out in the Provincial Offences Act. They ask that I find that this Court has jurisdiction and proceed in hearing the appeal.

III. Issues

[10] Key Questions

The parties both agree that section 813 of the Criminal Code applies. They disagree whether the phrase, "[e]xcept where otherwise provided by law" permits this Court to assume jurisdiction through its power as an appeal court under section 116 of the P.O.A. If the answer is no, then I do not have jurisdiction and the appeal is to be quashed. If the answer is yes, then a further question to be decided is whether this Court should do so in this case.

A. The Nature of Charges

[11] Federal Charges

I begin by noting that the charges in this case are undoubtedly federal and not provincial in their nature. The charges were laid on a federal Information. Counts 1 and 2 allege offences under federal legislation, namely, the Fisheries Act. Counts 3 to 6 allege offences under federal regulations which were made on the recommendation of the Minister of Fisheries and Oceans under s. 43 of the Fisheries Act.

[12] Dual Procedure Charges

The two Fisheries Act charges are dual procedure charges. Section 78 of the Fisheries Act provides as follows:

Punishment not otherwise provided for

78 Except as otherwise provided in this Act, every person who contravenes this Act or the regulations is guilty of

(a) an offence punishable on summary conviction and liable, for a first offence, to a fine not exceeding one hundred thousand dollars and, for any subsequent offence, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year, or to both; or

(b) an indictable offence and liable, for a first offence, to a fine not exceeding five hundred thousand dollars and, for any subsequent offence, to a fine not exceeding five hundred thousand dollars or to imprisonment for a term not exceeding two years, or to both.

As noted earlier, in the present case, the Crown elected to proceed summarily.

[13] Ticketable Offences Scheme

The remaining charges are also, in my view, federal in nature. They are subject to section 78 of the Fisheries Act, cited above, which expressly refers to "the regulations." The phrase in section 78, "except as otherwise provided in this Act", permits for a procedural alternative to the Criminal Code which is referred to as the ticketable offences procedure. Section 79.7(1) provides as follows:

Ticketable Offences

Procedure

79.7 (1) In addition to the procedures set out in the Criminal Code for commencing a proceeding, proceedings in respect of any offence prescribed by regulation may be commenced by a fishery officer, fishery guardian or inspector.

(a) completing a ticket that consists of a summons portion and an information portion;

(b) delivering the summons portion of the ticket to the accused or mailing it to the accused at the accused's latest known address; and

(c) filing the information portion of the ticket with a court of competent jurisdiction before or as soon as practicable after the summons portion has been delivered or mailed.

[14] Information Procedure Used

It may be observed that in the present case the ticketable offences scheme was not utilized. The authorities chose to proceed by Information in respect of the regulatory charges and the Crown elected to proceed summarily in the course of the proceedings.

B. The Nature of the Appeal Process

[15] Fisheries Act Appeal Route

I would continue by noting that the appeal route as set out in the Fisheries Act is federal in nature engaging federal legislation, namely, the Criminal Code. The operative provision is section 86 of the Fisheries Act dealing with appeals from conviction or sentence for dual procedure offences. Section 86(2) deals with summary conviction proceedings and provides as follows:

Appeal in summary conviction proceedings

86 (2) For the purpose of Part XXVII of the Criminal Code, any order and any decision not to make an order under subsection 71.1(1), subsection 72(1), (2) or (3) or section 79, 79.1, 79.2 or 79.3 as well as any sentence passed by the court under this Act shall be considered a sentence within the meaning of section 785 of the Criminal Code.

[16] Criminal Code Summary Conviction Procedure

Part XXVII of the Criminal Code in turn sets out the procedure in respect of summary convictions. Section 813(a) provides as follows:

Appeal by defendant, informant or Attorney General

813 Except where otherwise provided by law,

(a) the defendant in proceedings under this Part may appeal to the appeal court

(i) from a conviction or order made against him,

(ii) against a sentence passed on him …

The definition of "appeal court" for purposes of Part XXVII is found in s. 812(1)(a) which provides as follows:

Definition of appeal court

812 (1) For the purposes of sections 813 to 828, appeal court means

(a) in the Province of Ontario, the Superior Court of Justice sitting in the region, district or county or group of counties where the adjudication was made …

C. Scope of the P.O.A.

[17] Provincial Offences Act Appeal Provisions

As noted earlier, the Appellants accept that section 813 of the Criminal Code applies. They argue, however, that the phrase "[e]xcept where otherwise provided by law" grants jurisdiction to this Court through the alternative procedure available in section 116 of the P.O.A., dealing with appeals of proceedings commenced by way of a provincial Information and laid under Part III of the P.O.A. The operative portions of section 116 provide as follows:

Appeals, proceedings commenced by information

116 (1) Where a proceeding is commenced by information under Part III, the defendant or the prosecutor or the Attorney General by way of intervention may appeal from,

(a) a conviction;

(d) a sentence; or

(e) any other order as to costs.

Appeal court

(2) An appeal under subsection (1) shall be,

(a) where the appeal is from the decision of a justice of the peace, to the Ontario Court of Justice presided over by a provincial judge; or

(b) where the appeal is from the decision of a provincial judge, to the Superior Court of Justice.

[18] P.O.A. Jurisdiction Limited to Provincial Matters

The difficulty with the Appellant's position lies in the scope of the P.O.A., which has jurisdiction over provincial and not federal matters. This is clear upon reviewing the language of the P.O.A.

[19] Definition of Offence Under P.O.A.

Section 23 of the P.O.A., which governs Informations laid pursuant to Part III, provides as follows:

Information

23 (1) Any person who, on reasonable and probable grounds, believes that one or more persons have committed an offence, may lay an information in the prescribed form and under oath before a justice alleging the offence and the justice shall receive the information.

The word "offence" is defined in section 1 as follows:

"offence" means an offence under an Act of the Legislature or under a regulation or by-law made under the authority of an Act of the Legislature; ("infraction")

The word "Legislature" is defined in section 87 of the Legislature Act, S.O. 2006, c. 21 (hereinafter "Legislature Act") which applies to all provincial legislation:

Definitions

87 In every Act and regulation,

"Legislature" means the Lieutenant Governor acting by and with the advice and consent of the Assembly; ("Législature")

The word "assembly" is defined in the same section to mean:

"Assembly" and "Legislative Assembly" mean the Legislative Assembly of Ontario; ("Assemblée", "Assemblée législative")

[20] Purpose of the P.O.A.

Read together, the aforementioned provisions suggest that the jurisdiction of the P.O.A. is over provincial and not federal matters. This is consistent with its stated purpose of the P.O.A. as set out in section 2:

Purpose of Act

2 (1) The purpose of this Act is to replace the summary conviction procedure for the prosecution of provincial offences, including the provisions adopted by reference to the Criminal Code (Canada), with a procedure that reflects the distinction between provincial offences and criminal offences.

[21] Case Law on P.O.A. Scope

Such a conclusion is consistent with cases considering the scope of the P.O.A. and there is authority holding that the P.O.A. has no application to an offence under a federal act. See R. v. TNT Canada Inc., [1985] O.J. No. 421 (Ont. H.C.), rev'd 1986 CanLII 2632 (ON CA), [1986] O.J. No. 1322 (Ont. C.A.), leave to appeal to S.C.C. ref'd [1987] S.C.C.A. No. 149 (S.C.C.). See also R. v. Tullo, [2003] O.J. No. 4854 (O.C.J.), where the Court held that an Information styled as a Provincial Offences Act Information and which charged an offence under the federal Fisheries Act was a nullity. Thomas J. held as follows at paras. 12-13:

Leading from that, then, it requires an examination of s.s. (1) of the Provincial Offences Act, wherein an offence is prescribed as an offence and defined as an offence under an act of the legislature, or under a regulation or by-law made under the authority of an act of the legislature. In this case, obviously this is a federal offence. The definition of offence within the Provincial Offences Act, speaks of an offence under an act of the legislature, which is of course the legislature of Ontario, and this offence does not classify as another portion of the definition, or under a regulation or by-law made under the authority of an act of the legislature. This is of course an offence set out in a federal statute.

I then turn to the Fisheries Act itself, the federal statute, and I find that s. 40, as Mr. Mathany has pointed out, is a hybrid offence and allows for Mr. Tullo, potentially, to be prosecuted on an offence punishable by summary conviction, that is s. 41(a), or an indictable offence, that is s. 41(b). The Fisheries Act goes on to say, pursuant to s. 83 of the Fisheries Act, the following:

"Except as otherwise provided in this Act, all penalties and forfeitures incurred under this Act or any of the regulations are recoverable and enforceable by summary proceedings, taken under the provisions of the Criminal Code relating to summary convictions."

E. The Exception Under The Contraventions Act

[22] Ticketable Offences Exception

None of the above is to say that an exception does not exist. However, the exception is the one provided for under the federal legislation through the "Ticketable Offences" scheme as set out in s. 79.7 of the Fisheries Act. As already noted that process was not utilized by the authorities in this case. To the extent that the Contraventions Act would then have applied it would have applied, in any event, only to offences charged under the Regulations as Fisheries Act charges are not subject to the Contraventions Act. This was observed in R. v. Tullo, supra at para. 14. Thomas J. held:

As part of my examination of the validity of this information, I questioned whether or not the Contraventions Act would assist the Crown and allow the Crown to proceed by way of provincial offences process to prosecute a federal offence. Quite simply, my review of the Contraventions Act has led me to find that in fact it is of no assistance to the Crown, the most important reason being that the Fisheries Act is not a scheduled act as set out in the scheduled offences appended to the Contraventions Act, and therefore there is no process available for a prosecution under the Fisheries Act pursuant to this form of process, or any other form of process, that would assist the Crown. They are stuck in prosecuting on a federal information in the fashion prescribed by the Fisheries Act itself, and therefore the information before me I find to be a nullity, and it is quashed at this point.

[23] Federal Nature of Charges Confirmed

I say this mindful that the appellants believed that the charges were provincial in nature and that the appropriate forum to appeal to was the Ontario Court of Justice. However, this is not the case. The charges are federal and there is no jurisdiction that can be extended through the appeal provisions of the P.O.A. in the case before me. The only jurisdiction is to the Superior Court of Justice through s. 812(1)(a) of the Criminal Code.

F. Conclusion

[24] Jurisdiction Quashed

I conclude that the phrase "[e]xcept where otherwise provided by law" in s. 813 of the Criminal Code does not engage the appeal provisions as set out in s. 116 of the P.O.A. in the present case. Section 812(1)(a) of the Criminal Code applies. The Ontario Court of Justice has no jurisdiction to hear this appeal. The appeal is hereby quashed.

Released: September 21, 2018

Signed: Justice P. Joubert