Leblanc et al. v. Curbera, [1983] 2 S.C.R. 28

Supreme Court of Canada

Leblanc et al. v. Curbera, [1983] 2 S.C.R. 28

Date: 1983-09-27

Romeo Leblanc, Minister of Fisheries and Oceans, Canada and Lawrence Penney Appellants;

and

Javier Sensat Curbera Respondent.

File No.: 17455.

1983: June 7; 1983: September 27.

Present: Laskin C.J. and Ritchie, Dickson, Beetz, Estey, Mclntyre, Chouinard, Lamer and Wilson JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Interpretation—Statutes—“Final conclusion of the proceedings”—Seizure—Trial proceedings concluded and fines paid—Appeal process not concluded—Goods to be returned after “final conclusion of the proceedings”—Whether “final conclusion” referred to entire appellate process or to trial proceedings only—Whether or not accused entitled to return of non-forfeited cargo—Coastal Fisheries Protection Act, R.S.C. 1970, c. C-21, s. 6(5),(6),(8),(9)—Interpretation Act, R.S.C. 1970, c. I-23, s. 11.

Two masters of foreign ships were convicted of illegal fishing in Canadian waters. Twenty-eight tonnes of illegally taken fish—of which one and one half tonnes were ordered forfeited by the provincial court—were off-loaded before a temporary injunction forbade further seizure. That injunction lost effect when the convicted masters left the jurisdiction after paying their fines. The owners of the fish claimed its return, and later, the proceeds of its sale, on the ground that it was not open to the Minister to effect a seizure beyond the forfeiture once the fines were paid. This appeal was from a judgment of the Federal Court of Appeal reversing the decision of Walsh J. who dismissed appellant’s application for mandamus. At issue was whether or not the returning of seized goods, required under s. 6(9) of the Coastal Fisheries Protection Act at the “final conclusion of the proceedings”, is to occur only at the conclusion of all appellate proceedings, during which a right of forfeiture by the appellate court would subsist, or at the conclusion of the trial.

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Held (Ritchie J. dissenting): The appeal should be allowed.

Per Laskin C.J. and Dickson, Beetz, Estey, Mclntyre, Chouinard, Lamer and Wilson JJ.: A sentence appeal is not a separate proceeding arising from s. 6(9) and limiting the words “final conclusion of the proceedings” found there. Those words must carry through to the end of the appeal proceedings if the word “final” is to be given any effect; they are not limited by the words “convicting Court or Judge”—even construed as court of first instance—found in s. 6(5) allowing for forfeiture. The French version of s. 6(9) cannot have an overreaching effect to qualify the English version which stands on its own and is fully supported by the French version.

APPEAL from a judgment of the Federal Court of Appeal allowing an appeal from a judgment of Walsh J. dismissing an application for mandamus. Appeal allowed, Ritchie J. dissenting.

S.R. Fainstein, for the appellants.

John Sinnott, for the respondent.

The judgment of Laskin C.J. and Dickson, Beetz, Estey, Mclntyre, Chouinard, Lamer and Wilson JJ. was delivered by

THE CHIEF JUSTICE—This is an appeal by the Minister of Fisheries and Oceans from a judgment of the Federal Court of Appeal, delivered by Cowan D.J., and reversing a judgment of Walsh J. of the Federal Court, Trial Division, who had dismissed an application for mandamus directing the return of twenty-six and one-half tonnes of salt fish. During the proceedings before Walsh J. it emerged that the fish in question had been sold, pursuant to s. 6(4) of the Coastal Fisheries Protection Act, R.S.C. 1970, c. C-21, and the mandamus application was amended to obtain recovery of the proceeds of the sale.

The issue in this appeal, as in the courts below, arose as a result of a conviction and fine of two masters of foreign ships for illegal fishing in Canadian waters. The Provincial Court Judge before whom the charge was brought also ordered the forfeiture of one and one-half tonnes of the fish

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illegally taken. Although the amount of fish illegally taken exceeded twenty-eight tonnes, only this number was off-loaded and a temporary injunction forbade any further seizure. The temporary injunction lost its effect when the convicted masters left the jurisdiction. The convicted masters had paid their respective fines of $2,500 and thereafter the owners of the fish claimed their return and, subsequently, the proceeds of their sale, on the ground that it was not open to the Minister to effect a seizure of the fish or its proceeds once the fines were paid and beyond the limited forfeiture directed at trial.

Both the Minister and the respondent rely on s. 6(9) of the Act which is in these terms:

6. …

(9) Where a fishing vessel or goods have been seized under subsection (1) and proceedings in respect of the offence have been instituted, but the fishing vessel or goods or any proceeds realized from a sale thereof under subsection (4) are not at the final conclusion of the proceedings ordered to be forfeited, they shall be returned or the proceeds shall be paid to the person from whom the fishing vessel or goods were taken, unless there has been a conviction and a fine imposed in which case the fishing vessel or goods may be detained until the fine is paid, or the fishing vessel and the goods may be sold under execution in satisfaction of the fine, or the proceeds realized from a sale of any of the goods under subsection (4) may be applied in payment of the fine.

The Minister contends that the words in s. 6(9), “the final conclusion of the proceedings”, embrace the entire gamut of proceedings, including both trial and appeals, and until appeals, if any, are concluded, the right of additional forfeiture by an appellate court subsists. The respondent’s position is that under s. 6(9), seized goods not ordered forfeited may not be detained after the trial; to the extent to which it is directed, there can be no further forfeiture of previously seized and forfeited goods through any appellate proceedings and the owner of the property is entitled to its return.

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In supporting the position of the respondent, the Federal Court of Appeal said this:

In my opinion, the words “final conclusion of the proceedings” should be interpreted to refer to the conclusion of the proceedings under the Act before the Provincial Court judge by his decision to convict the accused, to fine them and to forfeit one and one-half tonnes of salt fish. That conclusion is “final” in the sense that the parties affected are in a position to appeal or apply for leave to appeal from those findings and decisions. Nothing remains to be done in those proceedings before the Provincial Court judge and, in my view, the application of the Crown for leave to appeal against sentence to the Court of Appeal is the commencement of a separate proceeding.

And again:

On reading the whole of subsection 6(9) of the Act it seems to me that once there has been a conviction and a fine any goods not ordered to be forfeited are to be returned to the person from whom they were taken and may be retained only until the fine is paid. There is no reference to the fine being that imposed by the trial judge or as varied on appeal.

Two other supporting considerations were given by Cowan D.J. He found that the French version of s. 6(9) shored up the respondent’s contention in the words “mais que celles-ci ne se terminent pas par une ordonnance portant confiscation …”—words which do not use the word “final”. Secondly, it was his view that under the Canadian Bill of Rights, a strict construction should be given to 8.6(9)

…in order to give the Crown the powers necessary to seize and detain goods until the stage of conviction, fine and forfeiture has been reached in prosecutions under the Act, and that it should not be construed to permit retention of goods not forfeited or the proceeds of sale of such goods after payment of any fine imposed by the judge who convicts.

Counsel for the respective parties enlarged their submissions to bring into view s. 6(5),(6) and (8) which read as follows:

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6. …

(5) Where a person is convicted of an offence against this Act, the convicting court or judge may, in addition to any other penalty imposed, order that

(a) any fishing vessel seized under subsection (1) by means of or in relation to which the offence was committed,

(b) any goods aboard the fishing vessel, including fish, tackle, rigging, apparel, furniture, stores and cargo, or, if any of the goods have been sold under subsection (4), the proceeds thereof, or

(c) the fishing vessel and any of the goods mentioned in paragraph (b), or the proceeds thereof,

be forfeited, and upon such order being made the fishing vessel, goods or proceeds so ordered to be forfeited are forfeited to Her Majesty in right of Canada.

(6) Where a fishing vessel or goods have been seized under subsection (1) and proceedings in respect of the offence have been instituted, the court or judge may, with the consent of the protection officer who made the seizure, order redelivery thereof to the accused upon security by bond, with two sureties, in an amount and form satisfactory to the Minister, being given to Her Majesty.

(8) Where proceedings in respect of an offence against this Act have been instituted and a fishing vessel or goods are at the final conclusion of the proceedings ordered to be forfeited, they may be disposed of as the Minister directs.

The respondent also emphasized that not only goods but a ship itself was subject to seizure and forfeiture for illegal fishing, and that there was the possibility of protracted appeal proceedings unless a speedy resolution governed forfeiture. However convenient this be, it does not answer the central question before us.

I cannot agree with Cowan D.J. that a sentence appeal is a separate proceeding that in any way arises from the words of s. 6(9) and limits the words “final conclusion”. If anything, the words carry through to the end of the proceedings, including the appeal proceedings, if taken. It

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would be strange, in my opinion, if an appeal against conviction and sentence were allowed and taken but there would be a preclusion against a review of the forfeiture which is bound up with the conviction and sentence. The Federal Court of Appeal did not find any substance in the word “final” added to the word “conclusion” and this in effect strikes the word from the statute.

Even if the words “convicting court or judge” are construed to refer only to the court or judge of first instance, I do not see that this limits the reach of the words “final conclusion of the proceedings” any more than they are limited in any range of cases where the judgment of a convicting court or judge is open to appeal.

Although both counsel in this appeal took comfort from the French version of the disputed English words of s. 6(9), I do not see that either can give the French version an overreaching effect to qualify the English version. It stands on its own, and is as fully supported by the French version, which speaks of “ending” or “coming to an end”, even though the word “final” in the English version is not added to the French.

It was not suggested by Cowan D.J. nor contended by counsel for the respondent that the Canadian Bill of Rights had any modifying effect upon s. 6(9) or affected its operation. We were told that it pointed to a strict construction but I see no such direction in the Act, and even if it be otherwise there is a clearer indication of the thrust of s. 6(9) in s. 11 of the Interpretation Act, R.S.C. 1970, c. I-23 which reads as follows:

11. Every enactment shall be deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.

The protection of the coastal fisheries is clearly an object of the Act of which s. 6(9) is part, and if there be any latitude found in it, there should be an equal concern to advance the purpose of the legislation.

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It is not difficult, in looking at s. 6(9) and its associated provisions, to suggest elements of ambiguity but I have no doubt that this is overdrawn and that the plain words of s. 6(9) call for a ruling in favour of the Minister.

I would, accordingly, allow the appeal and restore the order of Walsh J. who dismissed the application for mandamus. Costs were not asked and none will be granted.

I would add that the Charter of Rights and Freedoms was not in force when the litigation in this appeal originated, and there is no need to say anything here about its possible effect on the legislation.

The following are the reasons delivered by

RITCHIE J. (dissenting)—The question of law which must govern the outcome of these proceedings is, in my view, accurately stated in the first ground specified in the “Notice of application for leave to appeal” to this Court pursuant to which leave to appeal was granted; that ground is phrased as follows:

(1) That the Federal Court of Appeal erred in its interpretation of section 6(9) of the Coastal Fisheries Protection Act, R.S.C. 1970, c. C-21, as to the meaning and effect of the words “… the final conclusion of the proceedings …” which appear therein.

I have had the privilege of reading the reasons for judgment prepared for delivery by Chief Justice Laskin allowing this appeal from the judgment delivered on behalf of the Federal Court of Appeal by Mr. Justice Gordon Cowan sitting as a deputy judge of that Court and I note that other members of this Court are in agreement with our Chief Justice but unhappily I am unable to reach the same conclusion, and as I cannot express my views any more cogently than they have been stated by Mr. Justice Cowan in his reasons for judgment in the Court of Appeal, I would adopt his reasons and conclusion as my own. It follows that I would dismiss the appeal.

There will be no costs.

Appeal allowed, RITCHIE J. dissenting.

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Solicitor for the appellants: Roger Tassé, Ottawa.

Solicitors for the respondent: Lewis, Sinnott, Heneghan, St. John’s, Nfld.