Supreme Court of Canada

Fowler v. The Queen, [1980] 2 S.C.R. 213

Date: 1980-06-17

Dan Fowler Appellant;

and

Her Majesty The Queen Respondent.

1979: December 4, 5; 1980: June 17.

Present: Martland, Ritchie, Pigeon, Dickson, Beetz, Mclntyre and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Constitutional law—Fisheries—Injury to fishing grounds and pollution of waters—Invalidity of s. 33(3) of Fisheries Act—Fisheries Act, R.S.C. 1970, c. F-14, s. 33, as amended by R.S.C. 1970 (1st Supp.), c. 17, s. 3 and 1976-77 (Can.), c. 35, s. 7—British North America Act, ss. 91(12), 92(13).

The appellant was carrying on a logging operation on the east shore of Humphrey Channel in the County of Vancouver. As part of the logging operation the logs were removed from the forest by dragging them with a caterpillar tractor and in the course of dragging these logs they were dragged across a small stream which was only a few feet wide. From this operation there was debris deposited in the stream bed. This stream flowed into Forbes Bay, which is salt water, part of the coastal water of British Columbia. The stream at some times contained fish, it being used for the spawning and rearing of two species of salmon, but there was no evidence that the debris affected or injured the fish or the fry in any way. The appellant was charged with violating the provisions of s. 33 of the Fisheries Act, in that he did unlawfully put debris into water frequented by fish and that he did unlawfully knowingly permit to be put debris into water frequented by fish. The appellant was acquitted at trial, the trial judge finding that s. 33(3) of the Fisheries Act was ultra vires of the Parliament of Canada. The respondent appealed this decision and the County Court judge allowed the appeal. The appeal to the Court of Appeal by the appellant was dismissed, the Court of Appeal holding that s. 33(3) was within Parliament’s power to enact because it was “legislation clearly in relation to the matter of inland fisheries and particularly to the preservation of fish”. The sole issue to be determined in this appeal is that which is raised in the following constitutional question. “Is s. 33(3) of the Fisheries Act within the legislative competence of the Parliament of Canada?”

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Held: The appeal should be allowed.

“Fisheries”, as used in s. 91(12) of the B.N.A. Act and as interpreted by the courts, refers to the natural resource, and the right to exploit it, and the place where the resource is found and the right is exercised. The federal power in relation to fisheries is concerned with the protection and preservation of fisheries as a public resource. The legislation in question here does not deal directly with fisheries, as such, within that meaning. Rather, it seeks to control certain kinds of operations not strictly on the basis that they have deleterious effects on fish but, rather, on the basis that they might have such effects. Prima facie s. 33(3) regulates property and civil rights within a province: dealing with such rights and not dealing specifically with “fisheries”, in order to support the legislation it must be established that it provides for matters necessarily incidental to effective legislation on the subject-matter of sea coast and inland fisheries. It does not so provide, for s. 33(3) extends to cover not only water frequented by fish but also water that flows into such water, and it makes no attempt to link the proscribed conduct to actual or potential harm to fisheries. It is a blanket prohibition of certain types of activity, subject to provincial jurisdiction, which does not delimit the elements of the offence so as to link the prohibition to any likely harm to fisheries. As such, s. 33(3) of the Fisheries Act is ultra vires of the federal Parliament.

Attorney-General for Canada v. Attorney-General for British Columbia and others, [1930] A.C. 111; R. v. Robertson (1882), 6 S.C.R. 52; Attorney-General for the Dominion of Canada v. Attorneys-General for the Provinces of Ontario, Quebec and Nova Scotia, [1898] A.C. 700; Attorney-General for Canada v. Attorney-General for Quebec, [1921] 1 A.C. 413; Interprovincial Co-Operatives Limited et al. v. The Queen, [1976] 1 S.C.R. 477; Reference as to the Constitutional Validity of Certain Sections of the Fisheries Act, 1914, [1928] S.C.R. 457; Mark Fishing v. United Fishermen & Allied Workers Union (1972), 24 D.L.R. (3d) 585, referred to.

APPEAL from a judgment of the Court of Appeal for British Columbia[^1], dismissing an appeal from a judgment of the County Court[^2],

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allowing an appeal by the respondent of a judgment of the Provincial Court[^3]. Appeal allowed.

Duncan W. Shaw and Richard C. Gibbs, for the appellant.

T.B. Smith, Q.C., and H.J. Wruck, for the respondent.

E.R.A. Edwards, for the intervener, the Attorney General of British Columbia.

Alan Reid, for the intervener, the Attorney General of New Brunswick.

The judgment of the Court was delivered by

MARTLAND J.—The sole issue to be determined in this appeal is that which is raised in the constitutional question propounded in the order of the Chief Justice of this Court:

“Is Section 33(3) of the Fisheries Act, R.S.C. 1970, c. F-14, within the legislative competence of the Parliament of Canada?”

Section 33 of the Fisheries Act appears under the heading “Injury to Fishing Grounds and Pollution of Waters” and contains, inter alia, the following subsections:

33. (1) No one shall throw overboard ballast, coal ashes, stones, or other prejudicial or deleterious substances in any river, harbour or roadstead, or in any water where fishing is carried on, or leave or deposit or cause to be thrown, left or deposited, upon the shore, beach or bank of any water or upon the beach between high and low water mark, remains or offal of fish, or of marine animals, or leave decayed or decaying fish in any net or other fishing apparatus; such remains or offal may be buried ashore, above high water mark.

(2) Subject to subsection (4), no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish or in any place under any conditions where such deleterious substance or any other deleterious substance that results from the deposit of such deleterious substance may enter any such water.

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(3) No person engaging in logging, lumbering, land clearing or other operations, shall put or knowingly permit to be put, any slash, stumps or other debris into any water frequented by fish or that flows into such water, or on the ice over either such water, or at a place from which it is likely to be carried into either such water.

(4) No person contravenes subsection (2) by depositing or permitting the deposit in any water or place

(a) of waste or pollutant of a type, in a quantity and under conditions authorized by regulations applicable to that water or place made by the Governor in Council under any Act other than this Act; or

(b) of a deleterious substance of a class, in a quantity or concentration and under conditions authorized by or pursuant to regulations applicable to that water or place or to any work or undertaking or class thereof, made by the Governor in Council under subsection (13).

(5) Any person who contravenes any provision of

(a) subsection (1) or (3) is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars for a first offence, and not exceeding ten thousand dollars for each subsequent offence; or

(b) subsection (2) is guilty of an offence and liable on summary conviction to a fine not exceeding fifty thousand dollars for a first offence, and not exceeding one hundred thousand dollars for each subsequent offence.

(6) Where an offence under subsection (5) is committed on more than one day or is continued for more than one day, it shall be deemed to be a separate offence for each day on which the offence is committed or continued.

(11) For the purposes of this section and sections 33.1 and 33.2,

“deleterious substance” means

(a) any substance that, if added to any water, would degrade or alter or form part of a process of degradation or alteration of the quality of that water so that it is rendered or is likely to be rendered deleterious to fish or fish habitat or to the use by man of fish that frequent that water, or

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(b) any water that contains a substance in such quantity or concentration, or that has been so treated, processed or changed, by heat or other means, from a natural state that it would, if added to any other water, degrade or alter or form part of a process of degradation or alteration of the quality of that water so that it is rendered or is likely to be rendered deleterious to fish or fish habitat or to the use by man of fish that frequent that water,

and without limiting the generality of the foregoing includes

(c) any substance or class of substances prescribed pursuant to paragraph (12)(a),

(d) any water that contains any substance or class of substances in a quantity or concentration that is equal to or in excess of a quantity or concentration prescribed in respect of that substance or class of substances pursuant to paragraph (12)(b), and

(e) any water that has been subjected to a treatment, process or change prescribed pursuant to paragraph (12)(c);

“deposit” means by discharging, spraying, releasing, spilling, leaking, seeping, pouring, emitting, emptying, throwing, dumping or placing;

“water frequented by fish” means Canadian fisheries waters.

(12) The Governor in Council may make regulations prescribing

(a) substances and classes of substances,

(b) quantities or concentrations of substances and classes of substances in water, and

(c) treatments, processes and changes of water

for the purpose of paragraphs (c) to (e) of the definition “deleterious substance” in subsection (11).

The respondent contendes that subs. (3) of s. 33 is valid legislation because of the legislative authority of Parliament in respect of “Sea Coast and Inland Fisheries” under s, 91(12) of the British North America Act. The appellant submits that subs. (3) falls within provincial legislative powers, relying upon ss. 92(5), 92(10), 92(13) and 92(16) of the Act:

92(5) The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon.

92(10) Local Works and Undertakings ….

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92(13) Property and Civil Rights in the Province.

92(16) Generally all Matters of a merely local or private Nature in the Province.

This case is concerned with the prosecution of the appellant on two counts, as follows:

COUNT #1 that Dan Fowler, from April 27, 1975, to May 27, 1975, while engaged in logging, did UNLAWFULLY put debris into water frequented by fish, to wit: at or near Forbes Bay, in the County of Vancouver, Province of British Columbia, CONTRARY TO THE PROVISIONS OF SECTION 33 OF THE FISHERIES ACT, as amended;

COUNT #2 that Dan Fowler, from April 27, 1975, to May 27, 1975, while engaged in logging, did UNLAWFULLY knowingly permit to be put, debris into water frequented by fish, to wit: at or near Forbes Bay, in the County of Vancouver, Province of British Columbia, CONTRARY TO THE PROVISIONS OF SECTION 33 OF THE FISHERIES ACT, as amended.

The facts of the case are stated by the Provincial Court judge by whom the case was tried, as follows:

The fact of the case are that the accused, Dan Fowler, was carrying on a logging operation at a place known as Forbes Bay on the east shore of Humphrey Channel in the County of Vancouver, Province of British Columbia. Dan Fowler was subcontracting the removal of logs and timber from this land for the purpose of the logs being towed away. The evidence inferred that Dan Fowler was carrying on a normal and usual logging operation. As part of the logging operation the logs were removed from the forest by dragging the logs with a caterpillar tractor and in the course of dragging these logs they were dragged across a small stream, which is so small that it has no name. There was no exact measurement of the width of the stream but a photograph would indicate it is a few feet wide. From this logging operation there

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was debris deposited in the stream bed. From the photograph tendered as an exhibit and from the description given in evidence the debris consisted of limbs, branches or tops of trees.

This stream flowed into Forbes Bay which is salt water, part of the Coastal water of British Columbia. The stream at some times contained fish, the Fishery Officer said that the stream was used for the spawning of two species of salmon, Coho and pink, and for the rearing of the Coho fry.

There was no evidence tendered by the Crown that the deposit of the debris affected or injured the fish or the fry in any way. On cross-examination the Fishery Officer said that this type of debris deposited in the stream could be a deleterious substance affecting the biological oxygen demand in the stream and that the fish eggs and the fry had a high oxygen demand. The Fishery Officer on cross-examination said that the debris could affect the number of fry by damaging the eggs in the gravel spawning ground. The Fishery Officer further said that every time something is done to the stream it may have a far reaching effect or little effect.

The appellant was acquitted at trial. The trial judge held as follows:

I find that Section 33(3) of the Fisheries Act is not certain and effective to exercise the power of Parliament under Section 91(12) of the B.N.A. Act and since it does interfere with the power of the provinces under Section 92(5) and 92(13), Section 33(3) is ultra vires Parliament.

The respondent appealed this decision and the County Court judge allowed the appeal. The appeal to the Court of Appeal by the appellant was dismissed. The appellant, with leave, has appealed to this Court.

The Court of Appeal held that subs. 33(3) was within Parliament’s power to enact because it was “legislation clearly in relation to the matter of inland fisheries and particularly to the preservation of fish”. The Court relied upon the first propostion of Lord Tomlin in Attorney‑General for Canada v. Attorney-General for British Columbia and others[^4], at p. 118. Lord Tomlin, in that case, stated four propositions, as follows:

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Questions of conflict between the jurisdiction of the Parliament of the Dominion and provincial jurisdiction have frequently come before their Lordships’ Board, and as the result of the decisions of the Board the following propositions may be stated:—

(1) The legislation of the Parliament of the Dominion, so long as it strictly relates to subjects of legislation expressly enumerated in s. 91, is of paramount authority, even though it trenches upon matters assigned to the provincial legislatures by s. 92: see Tennant v. Union Bank of Canada ([1894] A.C. 31).

(2) The general power of legislation conferred upon the Parliament of the Dominion by s. 91 of the Act in supplement of the power to legislate upon the subjects expressly enumerated must be strictly confined to such matters as are unquestionably of national interest and importance, and must not trench on any of the subjects enumerated in s. 92 as within the scope of provincial legislation, unless these matters have attained such dimensions as to affect the body politic of the Dominion: see Attorney-General for Ontario v. Attorney-General for the Dominion ([1896] A.C. 348).

(3) It is within the competence of the Dominion Parliament to provide for matters which, though otherwise within the legislative competence of the provincial legislature, are necessarily incidental to effective legislation by the Parliament of the Dominion upon a subject of legislation expressly enumerated in s. 91: see Attorney-General of Ontario v. Attorney-General for the Dominion ([1894] A.C. 189); and Attorney-General for Ontario v. Attorney-General for the Dominion ([1896] A.C. 348).

(4) There can be a domain in which provincial and Dominion legislation may overlap, in which case neither legislation will be ultra vires if the field is clear, but if the field is not clear and the two legislations meet the Dominion legislation must prevail: see Grand Trunk Ry. of Canada v. Attorney-General of Canada ([1907] A.C. 65).

Counsel for the appellant contends that in order to uphold the legislation in issue the respondent must establish that it falls within the third proposition enunciated by Lord Tomlin in that case.

The earliest case in this Court in which the scope of the federal power to legislate in relation to

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sea coast and inland fisheries is R. v. Robertson[^5], which was concerned with the validity of an instrument called a lease of fishery whereby the Minister of Marine and Fisheries purported to lease for a term of nine years a portion of the Miramachi River in New Brunswick for the purpose of fly fishing for salmon. The lessee’s claim to the ownership of the fishing in that portion of the river was successfully resisted in the New Brunswick Courts by persons who owned a portion of the river. The lessee then filed a petition of right against the Crown in the Exchequer Court claiming compensation.

In the course of his judgment, Ritchie C.J., at p. 120, said this:

… I am of opinion that the legislation in regard to ‘Inland and Sea Fisheries’ contemplated by the British North America Act was not in reference to ‘property and civil rights’—that is to say, not as to the ownership of the beds of the rivers, or of the fisheries, or the rights of individuals therein, but to subjects affecting the fisheries generally, tending to their regulation, protection and preservation, matters of a national and general concern and important to the public such as the forbidding fish to be taken at improper seasons in an improper manner, or with destructive instruments, laws with reference to the improvement and increase of the fisheries, in other words, all such general laws as enure as well to the benefit of the owners of the fisheries as to the public at large, who are interested in the fisheries as a source of national or provincial wealth; in other words, laws in relation to the fisheries, such as those which the local legislatures were, previously to and at the time of confederation, in the habit of enacting for their regulation, preservation and protection,….

At p. 123, he said further:

To all general laws passed by the Dominion of Canada regulating “sea coast and inland fisheries” all must submit, but such laws must not conflict or compete with the legislative power of the local legislatures over property and civil rights beyond what may be necessary for legislating generally and effectually for the regulation, protection and preservation of the fisheries in the interests of the public at large.

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The scope of federal power to legislate under s. 91(12) of the British North America Act was discussed by the Privy Council in the following two cases from which I quote:

Attorney General for the Dominion of Canada v. Attorneys-General for the Provinces of Ontario, Quebec and Nova Scotia[^6], at p. 712:

Their Lordships are of opinion that the 91st section of the British North America Act did not convey to the Dominion of Canada any proprietary rights in relation to fisheries. Their Lordships have already noticed the distinction which must be borne in mind between rights of property and legislative jurisdiction. It was the latter only which was conferred under the heading, “Sea-Coast and Inland Fisheries” in s. 91. Whatever proprietary rights in relation to fisheries were previously vested in private indivudals or in the provinces respectively remained untouched by that enactment. Whatever grants might previously have been lawfully made by the province in virtue of their proprietary rights could lawfully be made after that enactment came into force. At the same time, it must be remembered that the power to legislate in relation to fisheries does necessarily to a certain extent enable the Legislature so empowered to affect proprietary rights. An enactment, for example, prescribing the time of the year during which fishing is to be allowed, or the instruments which may be employed for the purpose (which it was admitted the Dominion Legislature was empowered to pass) might very seriously touch the exercise of proprietary rights, and the extent, character, and scope of such legislation is left entirely to the Dominion Legislature.

Attorney-General for Canada v. Attorney-General for Quebec[^7], at p. 432:

… There is everywhere a power of regulation in the Dominion Parliament, but this must be exercised so as not to deprive the Crown in right of the Province or private persons of proprietary rights where they possess them.

Reference to the first quoted passage in the judgment of Ritchie C.J. in the Robertson case was made by Chief Justice Laskin in Interprovincial Co-Operatives Limited et al. v. The Queen[^8], at p. 495, a case which dealt with provincial

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legislation for the protection of provincial property rights in inland fisheries. The Chief Justice, who delivered the judgment of himself and Judson and Spence JJ., which dissented in the result, made the following statement which was not the subject of disagreement by the majority:

… It is, in my view, untenable to fasten on words in a judgment, such as the words “tending to their regulation, protection and preservation”, which appear in the reasons in The Queen v. Robertson, and read them as if they have literal constitutional significance. Federal power in relation to fisheries does not reach the protection of provincial or private property rights in fisheries through actions for damages or ancillary relief for injury to those rights. Rather, it is concerned with the protection and preservation of fisheries as a public resource, concerned to monitor or regulate undue or injurious exploitation, regardless of who the owner may be, and even in suppression of an owner’s right of utilization.

The meaning of the word “fishery” was considered by Newcombe J. in this Court in Reference as to the Constitutional Validity of Certain Sections of the Fisheries Act, 1914[^9], at p. 472:

In Patterson on the Fishery Laws (1863) p. 1, the definition of a fishery is given as follows:

A Fishery is properly defined as the right of catching fish in the sea, or in a particular stream of water; and it is also frequently used to denote the locality where such right is exercised.

In Dr. Murray’s New English Dictionary, the leading definition is:

The business, occupation or industry of catching fish or of taking other products of the sea or rivers from the water.

The above definitions were quoted and followed by Chief Justice Davey in Mark Fishing v. United Fishermen & Allied Workers Union[^10], at pp. 591 and 592. Chief Justice Davey at p. 592 added the words:

The point of Patterson’s definition is the natural resource, and the right to exploit it, and the place where the resource is found and the right is exercised.

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The legislation in question here does not deal directly with fisheries, as such, within the meaning of those definitions. Rather, it seeks to control certain kinds of operations not strictly on the basis that they have deleterious effects on fish but, rather, on the basis that they might have such effects. Prima facie, subs. 33(3) regulates property and civil rights within a province. Dealing, as it does, with such rights and not dealing specifically with “fisheries”, in order to support the legislation it must be established that it provides for matters necessarily incidental to effective legislation on the subject-matter of sea coast and inland fisheries.

In Attorney-General for Canada v. Attorney-General for British Columbia and others, to which reference has already been made, the Attorney General for Canada sought to support provisions in the Fisheries Act, 1914, which required the obtaining of a federal licence in order to operate, for commercial purposes, a fish cannery or, in British Columbia, a salmon cannery or curing establishment. It was in this case that Lord Tomlin stated his four propositions regarding conflicts between federal and provincial jurisdiction.

The federal argument was that the legislation in issue was valid under s. 91(12) as being directly or incidentally in relation to sea coast and inland fisheries. It was argued that the operation of canning and curing establishments was inseparably connected with the conduct of fisheries.

The legislation was held to be ultra vires of Parliament. Lord Tomlin said at pp. 121-22:

It may be, though on this point their Lordships express no opinion, that effective fishery legislation requires that the Minister should have power for the purpose of enforcing regulations against the taking of unfit fish or against the taking of fish out of season, to inspect all fish canning or fish curing establishments and require them to make appropriate statistical returns. Even if this were so the necessity for applying to such establishments any such licensing system as is embodied in the sections in question does not follow. It is not

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obvious that any licensing system is necessarily incidental to effective fishery legislation, and no material has been placed before the Supreme Court or their Lordships’ Board establishing the necessary connection between the two subject matters. In their Lordships’ view, therefore, the appellant’s second contention is not well founded.

The impugned sections confer powers upon the Minister in relation to matters which in their Lordships’ judgment prima facie fall under the subject “property and civil rights in the province,” included in s. 92 of the British North America Act, 1867. As already indicated, these matters are not in their Lordships’ opinion covered directly or incidentally by any of the subjects enumerated in s. 91.

Counsel for the respondent supports the legislation on the ground that it is preventive legislation intended to protect and preserve fish. He contends that its validity does not depend on showing that the operations to which it relates cause actual harm to a fishery.

The broad scope of the legislation in question is well illustrated in the following passages from the judgment of the Provincial Court judge at trial:

From evidence given in this case and also from judicial notice of the geography of the British Columbia coast and from that which is advanced in argument by both counsel, I have taken into consideration that on the coast of British Columbia where there are substantial logging operations there are innumerable streams, riverlets, and creeks flowing from the land to the various inlets and waters adjacent to the British Columbia coast which is the salt water and portion of the ocean frequented by fish and that the words of the section “into any water frequented by fish or that flows into such water” includes all these creeks, streams and riverlets of free flowing water that accumulate and ultimately flow into the ocean no matter how small and whether or not at any particular part of the water is at that point frequented by fish.

The scope of this legislation covers the handling of any wood material by loggers and land clearers in respect to almost any water in Canada. This section would affect every log, piece of lumber or tree that is so placed or dumped into any river, lake, stream or ocean in Canada from which there is detached therefrom any slash, stump or debris. I cannot conceive that the booming operations, the log drives and similar type of logging

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enterprises could be carried out without depositing some debris into the waters used for that purpose. If section 33(3) does not require the additional proof that the deposit of the debris affects the preservation of fish then every such booming operation and log drive would be committing an offence against section 33(3).

The criteria for establishing liability under subs. 33(3) are indeed wide. Logging, lumbering, land clearing and other operations are covered. The substances which are proscribed are slash, stumps and other debris. The amount of the substance which is deposited is not relevant. The legislation extends to cover not only water frequented by fish but also water that flows into such water, ice over any such water and any place from which slash, stumps and other debris are likely to be carried into such water.

Subsection 33(3) makes no attempt to link the proscribed conduct to actual or potential harm to fisheries. It is a blanket prohibition of certain types of activity, subject to provincial jurisdiction, which does not delimit the elements of the offence so as to link the prohibition to any likely harm to fisheries. Furthermore, there was no evidence before the Court to indicate that the full range of activities caught by the subsection do, in fact, cause harm to fisheries. In my opinion, the prohibition in its broad terms is not necessarily incidental to the federal power to legislate in respect of sea coast and inland fisheries and is ultra vires of the federal Parliament.

I would allow the appeal, set aside the judgment of the Court of Appeal and the County Court and restore the judgment at trial. The appellant is entitled to his costs throughout.

Appeal allowed with costs.

Solicitors for the appellant: Davis & Company, Vancouver.

Solicitor for the respondent: R. Tassé, Ottawa.

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Solicitor for the intervener, the Attorney General of British Columbia: R.H. Vogel, Victoria.

Solicitor for the intervener, the Attorney General of New Brunswick: G.F. Gregory, Fredericton.

[^1]: [1979] 1 W.W.R. 285. [^2]: [1977] 4 W.W.R. 449, 36 C.C.C. (2d) 297. [^3]: [1976] 6 W.W.R. 28. [^4]: [1930] A.C. 111. [^5]: (1882), 6 S.C.R. 52. [^6]: [1898] A.C. 700. [^7]: [1921] 1 A.C. 413. [^8]: [1976] 1 S.C.R. 477. [^9]: [1928] S.C.R. 457. [^10]: (1972), 24 D.L.R. (3d) 585.