Ward v. Canada (Attorney General), [2002] 1 S.C.R. 569, 2002 SCC 17

Her Majesty The Queen Appellant

v.

Ford Ward Respondent

and

The Attorney General of Quebec, the Attorney General for Alberta, the Attorney General of Newfoundland and the International Fund for Animal Welfare Inc. Interveners

Indexed as: Ward v. Canada (Attorney General)

Neutral citation: 2002 SCC 17.

File No.: 27717.

2001: October 31; 2002: February 22.

Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for newfoundland

Constitutional law -- Distribution of legislative powers -- Fisheries -- Federal regulation prohibiting sale of young hooded and harp seals -- Whether regulation falls within federal fisheries power -- Constitution Act, 1867, ss. 91(12), 92(13) -- Marine Mammal Regulations, SOR/93-56, s. 27.

Constitutional law -- Distribution of legislative powers -- Criminal law -- Federal regulation prohibiting sale of young hooded and harp seals -- Whether regulation falls within federal criminal law power -- Constitution Act, 1867, s. 91(27) -- Marine Mammal Regulations, SOR/93-56, s. 27.

Section 27 of the Marine Mammal Regulations prohibits the sale, trade or barter of young harp seals and hooded seals, referred to respectively as whitecoats and bluebacks. W held a commercial sealing licence issued under the Fisheries Act which permitted him to harvest hooded and harp seals. On a seal hunt in 1996, W harvested approximately 50 seals, including a number of bluebacks. He was charged with selling blueback pelts contrary to s. 27 of the Regulations. W argued that s. 27 was ultra vires Parliament. Trial proceedings were suspended pending the outcome of the constitutional challenge. The trial judge upheld s. 27 as a valid exercise of the federal fisheries power under s. 91(12) of the Constitution Act, 1867. The majority of the Court of Appeal allowed W’s appeal.

Held: The appeal should be allowed.

Section 27 of the Marine Mammal Regulations is intra vires Parliament under the fisheries power. The purpose of s. 27 is to control the killing of bluebacks and whitecoats by prohibiting their sale, thus making it largely pointless to harvest them. Parliament’s object is to regulate the seal fishery by eliminating the commercial hunting of these seals, while at the same time allowing for a limited harvesting for non-commercial purposes. The prohibition exists in the context of a scheme that is concerned with the overall “management and control” of the marine fisheries resource. It is not directed at controlling commerce or property but rather is designed to curtail a hunt that was damaging the economic viability of the sealing industry and the fisheries resource in general. The method chosen to curtail the commercial harvest of bluebacks and whitecoats may be imperfect, but efficacy is not a valid consideration in the pith and substance analysis. Moreover, to argue that because the legislative measure is a prohibition on sale, it must be in pith and substance concerned with the regulation of sale, confuses the purpose of s. 27 with the means chosen to achieve it. 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. Section 27 is in pith and substance concerned with the management of the Canadian fishery and falls within the federal fisheries power. The federal power over fisheries is not confined to conserving fish stocks, but extends more broadly to maintenance and preservation of the fishery as a whole, including its economic value.

Although broad, the fisheries power is not unlimited. Parliament must respect the provincial power over property and civil rights. Whether a matter best conforms to a subject within federal or provincial jurisdiction cannot be determined by drawing a line between federal and provincial powers on the basis of conservation or sale. The activity at stake must be examined to determine whether the matter regulated is related in pith and substance to the federal fisheries power or the provincial power over property and civil rights. Here, since s. 27 is vitally connected to protecting the economic viability of the Canadian fishery as a whole, it is a valid federal measure. This result fully respects the provinces’ constitutional right to control property and civil rights.

Section 27 does not fall within the federal criminal law jurisdiction. While a prohibited act and a penalty are present, it does not possess a valid criminal law purpose.

Cases Cited

Referred to: Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31; Global Securities Corp. v. British Columbia (Securities Commission), [2000] 1 S.C.R. 494, 2000 SCC 21; R. v. Morgentaler, 1993 CanLII 74 (SCC), [1993] 3 S.C.R. 463; Whitbread v. Walley, 1990 CanLII 33 (SCC), [1990] 3 S.C.R. 1273; RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199; Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145; Edwards v. Attorney-General for Canada, 1929 CanLII 438 (UK JCPC), [1930] A.C. 124; Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217; Reference re Provincial Electoral Boundaries (Sask.), 1991 CanLII 61 (SCC), [1991] 2 S.C.R. 158; Law Society of Upper Canada v. Skapinker, 1984 CanLII 3 (SCC), [1984] 1 S.C.R. 357; Attorney General of British Columbia v. Canada Trust Co., 1980 CanLII 221 (SCC), [1980] 2 S.C.R. 466; R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295; Northern Telecom Canada Ltd. v. Communication Workers of Canada, 1983 CanLII 25 (SCC), [1983] 1 S.C.R. 733; Reference re Waters and Water-Powers, 1929 CanLII 72 (SCC), [1929] S.C.R. 200; Citizens Insurance Co. of Canada v. Parsons (1881), 7 App. Cas. 96; Proprietary Articles Trade Association v. Attorney-General for Canada, 1931 CanLII 385 (UK JCPC), [1931] A.C. 310; Canadian Federation of Agriculture v. Attorney‑General for Quebec, 1950 CanLII 342 (UK JCPC), [1951] A.C. 179; The Queen v. Robertson (1882), 1882 CanLII 25 (SCC), 6 S.C.R. 52; Reference re Certain Sections of the Fisheries Act, 1914, 1928 CanLII 82 (SCC), [1928] S.C.R. 457, aff’d 1929 CanLII 439 (UK JCPC), [1930] A.C. 111; Mark Fishing Co. v. United Fishermen & Allied Workers’ Union (1972), 1972 CanLII 1016 (BC CA), 24 D.L.R. (3d) 585; International Fund for Animal Welfare, Inc. v. Canada, 1986 CanLII 6852 (FC), [1987] 1 F.C. 244, aff’d in part 1988 CanLII 9362 (FCA), [1989] 1 F.C. 335; Interprovincial Co-Operatives Ltd. v. The Queen, 1975 CanLII 212 (SCC), [1976] 1 S.C.R. 477; Northwest Falling Contractors Ltd. v. The Queen, 1980 CanLII 210 (SCC), [1980] 2 S.C.R. 292; Comeau’s Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), 1997 CanLII 399 (SCC), [1997] 1 S.C.R. 12; Gulf Trollers Assn. v. Canada (Minister of Fisheries and Oceans), 1986 CanLII 6787 (FCA), [1987] 2 F.C. 93, rev’g 1984 CanLII 5399 (FC), [1984] 2 F.C. 398; British Columbia Packers Ltd. v. Canada Labour Relations Board, 1975 CanLII 2295 (FCA), [1976] 1 F.C. 375, aff’d on other grounds, 1977 CanLII 205 (SCC), [1978] 2 S.C.R. 97; R. v. N.T.C. Smokehouse Ltd. (1993), 1993 CanLII 4521 (BC CA), 80 B.C.L.R. (2d) 158; R. v. Saul (1984), 1984 CanLII 501 (BC SC), 10 D.L.R. (4th) 736; R. v. Twin (1985), 1985 ABCA 254, 23 C.C.C. (3d) 33; Attorney-General for Canada v. Attorney-General for Alberta, 1916 CanLII 424 (UK JCPC), [1916] 1 A.C. 588; Barry’s Ltd. v. Fishermen, Food and Allied Workers’ Union (1993), 1993 CanLII 7764 (NL CA), 104 Nfld. & P.E.I.R. 277; R. v. Hydro-Québec, 1997 CanLII 318 (SCC), [1997] 3 S.C.R. 213.

Statutes and Regulations Cited

Constitution Act, 1867, ss. 91, 91(12), 91(27), 92, 92(13).

Criminal Code, R.S.C. 1985, c. C-46.

Fisheries Act, R.S.C. 1985, c. F-14, ss. 43, 78.

Marine Mammal Regulations, SOR/93-56, ss. 2(1) “blueback”, “whitecoat”, 3, 27.

Authors Cited

Canada. Royal Commission on Seals and the Sealing Industry in Canada. Seals and Sealing in Canada, vol. 1. Ottawa: Minister of Supply and Services Canada, 1986.

Hogg, Peter W. Constitutional Law of Canada, vol. 1, loose-leaf ed. Scarborough, Ont.: Carswell (updated 2001, release 1).

Lederman, William R. Continuing Canadian Constitutional Dilemmas: Essays on the Constitutional History, Public Law and Federal System of Canada. Toronto: Butterworths, 1981.

APPEAL from a judgment of the Newfoundland Court of Appeal (1999), 1999 CanLII 18946 (NL CA), 182 D.L.R. (4th) 172, 183 Nfld. & P.E.I.R. 295, 556 A.P.R. 295, [1999] N.J. No. 336 (QL), allowing the respondent’s appeal from a decision of the Newfoundland Supreme Court, Trial Division (1997), 1997 CanLII 16110 (NL SC), 152 D.L.R. (4th) 363, 155 Nfld. & P.E.I.R. 313, 481 A.P.R. 313, [1997] N.J. No. 208 (QL). Appeal allowed.

David Meadows and Paul Adams, for the appellant.

V. Randell J. Earle, Q.C., and Stephen Willar, for the respondent.

Alain Gingras, for the intervener the Attorney General of Quebec.

S. H. Rutwind, for the intervener the Attorney General for Alberta.

Written submissions only by Harold J. Porter, for the intervener the Attorney General of Newfoundland.

Clayton C. Ruby, for the intervener the International Fund for Animal Welfare Inc.

The judgment of the Court was delivered by

The Chief Justice –

I. Introduction

[1] This appeal concerns the federal and provincial division of powers set out in ss. 91 and 92 of the Constitution Act, 1867. It focuses on the constitutionality of a federal regulation prohibiting the sale of young hooded and harp seals. The issue is whether this prohibition falls under the federal government’s power to legislate in relation to sea coast and inland fisheries or the criminal law, in which case it is valid, or whether it falls under the provincial power over property and civil rights, in which case it is invalid.

[2] For the reasons that follow, I conclude that the regulation is valid federal legislation under the fisheries power. The federal power over fisheries is not confined to conserving fish stocks, but extends to the management of the fisheries as a public resource. This resource has many aspects, one of which is to yield economic benefits to its participants and more generally to all Canadians. The prohibition on the sale of young hooded and harp seals was designed to curtail a hunt that was damaging the economic viability of the sealing industry and the fisheries resource in general. This brings the regulation within the fisheries power.

II. Facts

[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 licence 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.

[5] Young harp and hooded seals, respectively referred to as whitecoats and bluebacks, are named after the colour of their coats. A harp seal is born with a yellowish-white coat that it retains until it moults, which can occur up to three weeks after its birth. Unlike the harp seal, a hooded seal moults its white fur prior to birth while still in the womb. A hooded seal is thus born with bluish colour fur which it retains from 16 to 30 months, after which the seal moults for a second time. After the hooded seal has completely moulted its blue coat, it is no longer considered to be a blueback.

[6] Both hooded and harp seals birth their offspring in a 10-day period in late March of each year. Births at the Front occur on the pack ice, which in effect becomes a whelping platform. A harp seal will wean either before or immediately after the moult, and most of the period that a harp seal is a whitecoat is spent on the pack ice where it is easily recognizable. In contrast, a blueback seal is weaned between four and six days after birth, and does not remain on the ice for very long afterwards. Thus, while the harp seal is a whitecoat for no more than three weeks, most of which is spent on the ice, the hooded seal can be a blueback for 16 to 30 months, with only days spent on the ice.

[7] After bluebacks leave the ice and take to water, their identification becomes difficult. The hunt is largely conducted from boats with small crews, as sealers are not permitted to harvest in the whelping patches on the ice. The majority of seals are shot with a rifle while they are in the water. The identification problem arises from the fact that a blueback is not recognizable as such once it is in the water; its dark head is not distinguishable in colour or size from the dark heads of other seals. Thus, the seal hunter does not know for sure whether the seal head bobbing up and down in the water is a blueback until it is killed and brought aboard the vessel. However, if sealers are harvesting in a concentration of bluebacks, this fact should quickly become apparent in the course of the hunt.

[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 that it occurs at all, should be carefully regulated and strictly limited” (Seals and Sealing 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.

III. Judgments

[10] Wells J. of the Supreme Court of Newfoundland, Trial Division upheld s. 27 of the Regulations as a valid exercise of the federal government’s fisheries power: (1997), 1997 CanLII 16110 (NL SC), 155 Nfld. & P.E.I.R. 313. He held that the federal fisheries power extended beyond conservation to more general socio-economic goals. Curtailing the excessive killing of young seals to “achieve national objectives” (para. 41) fell within this power. Section 27 was in pith and substance directed at this purpose. The Regulations do not prohibit the killing of bluebacks because of the difficulty of their identification in the water. As a practical solution, the federal government chose to control the killing of the bluebacks and whitecoats by prohibiting their sale, thus making it largely pointless to harvest them. While acknowledging that a prohibition on sale may be an imperfect method of regulation, Wells J. found on the evidence that a prohibition on the killing of bluebacks would simply not work.

[11] The majority of the Newfoundland Court of Appeal, per Marshall J.A., reversed Wells J. and held s. 27 of the Regulations invalid: (1999), 1999 CanLII 18946 (NL CA), 183 Nfld. & P.E.I.R. 295. Marshall J.A. rejected the argument that the purpose of banning the trade in bluebacks is to prevent the killing of baby seals for their pelts, which is inherently cruel, morally wrong and hence a proper subject of criminal control. He also rejected the argument that the prohibition fell under the federal fisheries power. In his view, the fisheries power was confined to issues of conservation, and legislation enacted for “socio-economic” reasons was simply too broad a description for division of powers purposes. The prohibition was the antithesis of conservation, since it would result in leaving dead seals in the water. Hence it did not fall under the fisheries power.

[12] O’Neill J.A. dissented, holding like Wells J. that the fisheries power was broad enough to extend beyond conservation to the general regulation of the fisheries resource for the common good, and that prohibiting sale virtually eliminated the harvest of young seals. He concluded that the purpose of s. 27 “is not to control the sale of seal pelts for its own sake” (para. 120), but to discourage commercial taking of bluebacks and whitecoats. In his view, s. 27 was in pith and substance in relation to the federal fisheries power, and it was unnecessary to consider whether s. 27 could be classified in relation to the criminal law power.

IV. Legislation

[13] The federal and provincial division of powers is set out in ss. 91 and 92 of the Constitution Act, 1867. Section 91 grants exclusive legislative authority to the Parliament of Canada for all matters in relation to sea coast and inland fisheries (s. 91(12)), and the criminal law (s. 91(27)). Section 92 specifies that the legislature in each province may exclusively make laws in relation to property and civil rights in the province (s. 92(13)).

[14] The relevant portions of the Regulations made under the authority of s. 43 of the Fisheries Act are as follows:

2. (1) . . .

“blueback” means a hooded seal that has not moulted its blue coat;

“whitecoat” means a harp seal that has not begun to moult its white coat.

27. No person other than a beneficiary shall sell, trade or barter a whitecoat or blueback.

V. Issue

[15] The issue on this appeal is whether the federal regulation prohibiting the sale, trade or barter 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 relate to an enumerated head of power granted to the legislature in question by the Constitution Act, 1867? See Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31; Global Securities Corp. v. British Columbia (Securities Commission), [2000] 1 S.C.R. 494, 2000 SCC 21; see also R. v. Morgentaler, 1993 CanLII 74 (SCC), [1993] 3 S.C.R. 463; Whitbread v. Walley, 1990 CanLII 33 (SCC), [1990] 3 S.C.R. 1273. We must address these questions first with respect to the federal fisheries power, second with respect to the federal criminal law power.

A. The Pith and Substance of Section 27 of the [Regulations](https://www.canlii.org/en/ca/laws/regu/sor-93-56/latest/sor-93-56.html) in Relation to the Fisheries Power

(1) The Essential Character of the Law

[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. 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. In oral argument, Ward expressly made clear that he is not challenging the law on the basis of colourability.

[18] The pith and substance analysis is not technical or formalistic: see P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.), vol. 1, at p. 15-12. It is essentially a matter of interpretation. The court looks at the words used in the impugned legislation as well as the background and circumstances surrounding its enactment: see Morgentaler, supra, at p. 483 ; Reference re Firearms Act, supra, at para. 17. In conducting this analysis, the court should not be concerned with the efficacy of the law or whether it achieves the legislature’s goals: see RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, at para. 44, per La Forest J.; Reference re Firearms Act, supra, at para. 18.

[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.

(2) Does the Pith and Substance of Section 27 of the Regulations Fall within the Federal Fisheries Power?

[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.

1. The Constitution must be interpreted flexibly over time to meet new social, political and historic realities: see Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 155-56; see also Edwards v. Attorney-General for Canada, 1929 CanLII 438 (UK JCPC), [1930] A.C. 124 (P.C.); Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, at para. 52; Reference re Provincial Electoral Boundaries (Sask.), 1991 CanLII 61 (SCC), [1991] 2 S.C.R. 158, at p. 180; Law Society of Upper Canada v. Skapinker, 1984 CanLII 3 (SCC), [1984] 1 S.C.R. 357, at p. 365; Attorney General of British Columbia v. Canada Trust Co., 1980 CanLII 221 (SCC), [1980] 2 S.C.R. 466, at p. 478; R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at pp. 343-44; Hogg, supra, at p. 15-45.

2. The principle of federalism must be respected: see Reference re Secession 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”: see Northern Telecom Canada Ltd. v. Communication Workers of Canada, 1983 CanLII 25 (SCC), [1983] 1 S.C.R. 733, at p. 741. Classes of subjects should be construed in relation to one another: see Reference re Waters and Water-Powers, 1929 CanLII 72 (SCC), [1929] S.C.R. 200, at p. 216, per Duff J. In cases where federal and provincial classes of subjects contemplate overlapping concepts, meaning may be given to both through the process of “mutual modification”: see Citizens Insurance Co. of Canada v. Parsons (1881), 7 App. Cas. 96 (P.C.); see also W. R. Lederman, Continuing Canadian Constitutional Dilemmas (1981), at p. 274. Classes of subjects should not be construed so broadly as to expand jurisdiction indefinitely: see Hogg, supra, at p. 18-4, in the criminal law context; compare Proprietary Articles Trade Association v. Attorney‑General for Canada, 1931 CanLII 385 (UK JCPC), [1931] A.C. 310 (P.C.), with Canadian Federation of Agriculture v. Attorney‑General for Quebec, 1950 CanLII 342 (UK JCPC), [1951] A.C. 179 (P.C.) (the “Margarine Reference”).

[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:

1. The federal fisheries power extends only to conservation measures directed to preserving numbers (the conservation theory, espoused by the majority of the Newfoundland Court of Appeal).

2. The fisheries power extends only to the management of the fisheries resource in its natural state to the point of harvest and sale. This would include setting the permissible times and methods of extracting the resource, but it would not extend to the regulation of sale, processing and “markets” (the “point of sale” theory, espoused by Ward).

3. The fisheries power extends beyond conservation to measures intended to carry out economic goals and policies associated with the fisheries as a resource (the economic policy theory, advanced by the federal Crown).

[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.

[34] First, the preponderance of authority suggests that the fisheries power is not confined to conservation, nor to pre-sale activities, but extends more broadly to maintenance and preservation of the fishery as a whole, including its economic value. In The Queen v. Robertson (1882), 1882 CanLII 25 (SCC), 6 S.C.R. 52, Ritchie C.J. described the fisheries power as extending “to subjects affecting the fisheries generally, tending to their regulation, protection and preservation”. Accordingly, Parliament’s power extended to “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” (pp. 120-21).

[35] In Reference re Certain Sections of the Fisheries Act, 1914, 1928 CanLII 82 (SCC), [1928] S.C.R. 457 (aff’d 1929 CanLII 439 (UK JCPC), [1930] A.C. 111 (P.C.)), Newcombe J. cited, at p. 472, the definition of a fishery given in Patterson on the Fishery Laws (1863), at p. 1, as “the right of catching fish in the sea, or in a particular stream of water”. But he went on to cite the broader “leading definition” from J. A. H. Murray’s A New English Dictionary (1888), defining fishery in terms of the “business, occupation or industry of catching fish or of taking other products of the sea or rivers from the water”. Davey C.J.B.C., in Mark Fishing Co. v. United Fishermen & Allied Workers’ Union (1972), 1972 CanLII 1016 (BC CA), 24 D.L.R. (3d) 585 (B.C.C.A.), said of this: “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” (p. 592). See also International Fund for Animal Welfare, Inc. v. Canada, 1986 CanLII 6852 (FC), [1987] 1 F.C. 244 (T.D.) (division of powers issue aff’d 1988 CanLII 9362 (FCA), [1989] 1 F.C. 335 (C.A.)).

[36] The theme that the fisheries power refers to the resource was affirmed by this Court, per Laskin C.J. (dissenting, but not on this point) in Interprovincial Co-Operatives Ltd. v. The Queen, 1975 CanLII 212 (SCC), [1976] 1 S.C.R. 477, who wrote, at p. 495, that the federal fisheries power “is concerned with the protection and preservation of fisheries as a public resource”, extending even to the “suppression of an owner’s right of utilization”.

[37] Again, in Northwest Falling Contractors Ltd. v. The Queen, 1980 CanLII 210 (SCC), [1980] 2 S.C.R. 292, Martland J., speaking for the Court, recognized that the fisheries power involved legislating in relation to fisheries as a resource (at p. 298):

. . . federal legislative jurisdiction under s. 91.12 of the British North America Act is not a mere authority to legislate in relation to “fish” in the technical sense of the word. The judgments in this Court and in the Privy Council have construed “fisheries” as meaning something in the nature of a resource.

[38] More recently, in Comeau’s Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), 1997 CanLII 399 (SCC), [1997] 1 S.C.R. 12, Major J. noted that the Minister’s duty under the Fisheries Act extends beyond conservation to management and development of the fishery for the benefit of the public, stating (at para. 37):

Canada’s fisheries are a “common property resource”, belonging to all the people of Canada. Under the Fisheries Act, it is the Minister’s duty to manage, conserve and develop the fishery on behalf of Canadians in the public interest (s. 43).

[39] In Gulf Trollers Assn. v. Canada (Minister of Fisheries and Oceans), 1986 CanLII 6787 (FCA), [1987] 2 F.C. 93 (rev’g 1984 CanLII 5399 (FC), [1984] 2 F.C. 398 (T.D.)), the Federal Court of Appeal directly confronted whether the federal fisheries power is confined to conservation of the fish stock. At issue were federal regulations for closing times that favoured sports fishers over commercial fishers. At trial, Collier J. held that the fisheries power did not extend to the general management and control of the fisheries for the benefit of Canadians beyond mere protection and preservation of the resource. The Federal Court of Appeal reversed the decision. Marceau J.A. expressed the view that “Parliament may manage the fishery on social, economic or other grounds, either in conjunction with steps taken to conserve, protect, harvest the reserve or simply to carry out social, cultural or economic goals and policies” (p. 106).

[40] Moreover, the courts have rejected the view that the federal power extends only to management of fisheries in their natural state and terminates prior to the point of sale. In British Columbia Packers Ltd. v. Canada Labour Relations Board, 1975 CanLII 2295 (FCA), [1976] 1 F.C. 375 (C.A.) (appeal to S.C.C. dismissed on other grounds, 1977 CanLII 205 (SCC), [1978] 2 S.C.R. 97), Jackett C.J. remarked that the fisheries power does not extend to the “making of laws in relation to things reasonably incidental to carrying on a fishing business, such as labour relations and disposition of the products of the business, when such things do not in themselves fall within the concept of ‘fisheries’” (p. 385 (emphasis deleted)). However, it is clear that aspects of sale that are necessarily incidental to the exercise of the fisheries power fall within federal jurisdiction: see R. v. N.T.C. Smokehouse Ltd. (1993), 1993 CanLII 4521 (BC CA), 80 B.C.L.R. (2d) 158 (C.A.); R. v. Saul (1984), 1984 CanLII 501 (BC SC), 10 D.L.R. (4th) 736 (B.C.S.C.); R. v. Twin (1985), 1985 ABCA 254, 23 C.C.C. (3d) 33 (Alta. C.A.). The rationale is that the federal government may limit sales in order to prevent injurious exploitation of the resource. It therefore appears that no bright line can be drawn at the point of sale for the purposes of defining the scope of the federal fisheries power.

[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” (Robertson, supra, at p. 121); a “common property resource” to be managed for the good of all Canadians (Comeau’s Sea Foods, supra, at para. 37). 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: see Citizens Insurance, supra; see also Attorney-General for Canada v. Attorney-General for Alberta, 1916 CanLII 424 (UK JCPC), [1916] 1 A.C. 588 (P.C.).

[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.

[45] In Reference re Certain Sections of the Fisheries Act, supra, this Court held that the federal power to regulate the fisheries does not extend to the licensing of fish canneries or to the regulation of trade processes once the resource had been extracted and converted into a commodity. Newcombe J. noted that the power to control the sale or storage of fish, or the manufacture and sale of fishing equipment might be used to manage the resource, but on the facts of the case there was an insufficient link between the impugned legislation and the fisheries power (p. 472).

[46] Similarly, labour relations in the fisheries were held to be matters essentially falling within the provincial power to regulate business in the province and outside the federal fisheries power: see British Columbia Packers and Mark Fishing, supra; see also Barry’s Ltd. v. Fishermen, Food and Allied Workers’ Union (1993), 1993 CanLII 7764 (NL CA), 104 Nfld. & P.E.I.R. 277 (Nfld. C.A.).

[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.

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: see Reference re Firearms Act, supra, at para. 30. Legislation may amount to criminal law if it possesses three components: a prohibited act, a penalty and a valid criminal law purpose: see Reference re Firearms Act, RJR-MacDonald and Margarine Reference, supra; see also R. v. Hydro-Québec, 1997 CanLII 318 (SCC), [1997] 3 S.C.R. 213. Examples of a criminal law purpose include public peace, order, security, health and morality: see Margarine Reference, supra. 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.

[53] Two points arise for consideration: first, is the protection of animals against killing in the 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.

[55] However, nothing indicates that it was ethical considerations that led to the s. 27 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.

[58] I would answer the constitutional questions as follows:

1. Is s. 27 of the Marine Mammal Regulations, SOR/93-56, within the legislative authority of the Parliament of Canada as being legislation pertaining to the sea coast and inland fisheries under s. 91(12) of the Constitution Act, 1867?

Yes.

2. Is s. 27 of the Marine Mammal Regulations within the legislative authority of the Parliament of Canada as being legislation pertaining to the criminal law under s. 91(27) of the Constitution Act, 1867?

No.

Appeal allowed.

Solicitor for the appellant: The Attorney General of Canada, Halifax.

Solicitors for the respondent: O’Dea, Earle, St. John’s.

Solicitor for the intervener the Attorney General of Quebec: The Department of Justice, Sainte-Foy.

Solicitor for the intervener the Attorney General for Alberta: Alberta Justice, Edmonton.

Solicitor for the intervener the Attorney General of Newfoundland: The Attorney General of Newfoundland, St. John’s.

Solicitors for the intervener the International Fund for Animal Welfare Inc.: Ruby & Edwardh, Toronto.