..
.
.
Cite as: R. v. Brown, 1989 NSCO 15
1989
~
PROVINCE OF
NOVA
SCOTIA
COUNTY
OF
SHELBURNE
C.
SB.
2664B
IN THE
COUNTY COURT
OF DISTRICT NUMBER
TWO
BETWEEN:
DOUGLAS
W.
BROWN
APPELLANT
-
and -
HER MAJESTY THE QUEEN
RESPONDENT
HEARD
BEFORE:
The Honourable Judge G.
B. Freeman
PLACE HEARD:
Shelburne, Nova Scotia
DATE HEARD:
February 17, 1989
COUNSEL:
Donald G. Harding, Esq. for the Crown
S. Clifford Hood, Q.C. for the Appellant
DECISION DATE:
April 3, 1989.
DECISION ON APPEAL
..
1
This is an
appeal
by
Douglas
conviction
and
sentence
for
violating
vessel's fishing license by over-fishing for haddock.
The Appellant was fined $800 and
catch valued at $10,884.50 was ordered forfeited.
The
charge
alleges
that the appellant "did fail to
comply with
a
condition
of
a
l
.
i
.
authority
of
Subsection
33(1)
Regulations, 1985, to wit:
did take in excess of
of
haddock
specified
in
Variation
Variation Order t 1988-029, contrary to Subsection 33(2) of
said
Regulations, and did thereby commit an offence pursuant to
Subsection 61(1) of the Fisheries Act, R.S.C.
amended.
He has appealed from his conviction on three grounds:
1. The variation orders on which the charge was based
were not proven.
2.
The
variation
orders
resulted from an improper delegation of authority.
3.
It was not proven that the Appellant's vessel was
of a class affected by the variation orders.
W.
Brown
from
his
a
condition
of
his
a
portion
of
his
c
ense
specified
under
the
of
the
Atlantic
Fishery
the
quantity
Order
t
1988-027,
and
the
1970, c.
F-14 as
were
not
legal,
having
2·
No yiva voce evidence was called
determined on the following "Agreed Statement of Facts":
"1.
The
license,
condition, Exhibit 12, were valid for
the
offence and the accused was fishing pursuant to
same.
"2.
On February 19th, 1988, the
did
take in Divisions 4X and 5 by a Class C vessel,
less than 19.7 meters length overall, 39,790
of
haddock
and
Exhibit 13 is verification of that
weight.
"3.
Defence admits
orders
in
Exhibit
3
were 1ssued on the dates set
forth on them and subject to
were in effect at the time of the offence.
"4.
Notice
pursuant to Section 5 of the
Atlantic Fishery Regulations was given and
in the forms set out in Exhibit 15.".
"5.
Neil Bellefontaine signed and issued
all three variation orders referred
14.
"6.
Neil
Bellefontaine
Regional Director on the dates the variation
were made by him.
"7.
The
accused
Shelburne, Nova Scotia, on the 19th day of February,
1988.
"8.
Notice
pursuant
Evidence
Act
of
the
documentary
required was given.
"Dated this 19th day of May, A.D. 1988."
The
exhibits
indicate
fishing
on
the Allison & Kristan, a 64-foot vessel licensed to
fish by means of otter trawl, that is, a dragger.
holder
is shown as Small & Small Fish' Ltd.
Brown was apparently operating the vessel.
license,
Exhibit
12, indicate the Allison & Kristan is a Class
"
C-2 vessel.
and
the
case
was
Exhibit
1
and
the
the
date
of
accused
pounds
that
the
variation
their
legal
validity
brodcast
to
in
Exhibit
was
not
the
orders
landed
his
fish
at
to
the
Canada
evidence
where
that
the
Appellant
was
The
license
on behalf of which
The
conditions
of
3
,
The
reference
to
Exhibit
13 in paragraph 3 of the
admitted facts is in error:
Exhibit
1
3
i~
a
tally
sheet.
Exhibit
14
refers
to
two, not three, Variation Orders, and I
assume that was the reference intended.
The variation orders in Exhibit
i3
referred
to
in
paragraph 3 of the admitted facts are reproduced as follows:
Haddock Quota Variation Order
Atlantic Fishery Regulations, 1985 1988-027
Pursuant to section 4 of the Atlantic Fishery Regulations, 1985,
being Order-in-Council P.C. 1985-3662, as amended, the Regional
Director-General
hereby
makes
the
following Order respecting
haddock fishing in Subarea 5.
1.
The fishing quota as set out in subsection 88(1) of the said
Regulations for haddock fishing in Subarea 5 for Class C vessels
reverts to 10 per cent.
2.
The fishing quota as set out in subsection 88(2) of the said
Regulations for haddock fishing in Subarea 5 for Class C vessels
is hereby varied to be 9000 kg.
In
making
this
Order
the
Regional
Director-General
hereby
revokes items 2 and 3 of the previous
Haddock Close Time and Quota variation Order
Atlantic Fishery Regulations, 1985 1988-013
This
Order comes into effect 12:00 h February 11, 1988 and will
remain in effect 'until
December
31,
1988,
unless
otherwise
revoked.
Dated at Halifax, Nova Scotia, this 11th day of February, 1988.
Haddock Quota Variation Order
Atlantic Fishery Regulations, 1985
1988-029
Pursuant to section 4 of the Atlantic Fishery Regulations, 1985,
being Order-in-Council P.C. 1985-3662, as amended, the Regional
Director-General hereby revokes item 2 of the previous
.'
4
Haddock Close Time and Quota Variation Order
Atlantic Fishery Regulations, 1985
The
fishing
quota
as
set out in subsection 88(2) of the said
Regulations for haddock fishing
in
vessels reverts in 1500 kg effective February 16, 1988.
Dated at Halifax, Nova Scotia, this 15th of February, 1988.
variation
Order
1988-027
Canadian segment of George's Bank, and Variation Order
relates
to
Division
4X,
an
area
southwestern Nova Scotia from Halifax
Fundy
and bordering on Subarea 5.
both areas, and the Appellant was admitted to have been
in both, he is charged not with the overfishing as such, but for
~ violating
a
condition of his license.
greater than the quota for either area.
The
notices
broadcast· in
paragraph
4 of the statement of facts defined class "C n
as those less than 19.8 meters in overall
gear, or otter trawl.
It may be noted that
equivalent of 65 feet.
THE FIRST GROUND
The variation
orders
establishing
became
a
condition
of
Brown's
fishing license were admitted
subject to their legal validity.
the
extent
of
the
Crown's
duty to prove earlier orders upon
1988-011
Division
4X
for
Class
C
relates to Subarea 5, the
1988-027
including
the
waters
of
Harbour
to
the
Bay
of
While the quotas differ for
_fishing
The admitted catch was
the
form
admitted
in
vessels
length
using
mobile
19.8 meters is the
the
quota
that
At issue in this
ground
is
5
which these orders are necessarily
founded.
Presumably
those
~ are Haddock Close Time and Quota Variation Order 1988-013 in the
case of Variation Order 1988-027 for Subarea 5 and Haddock Close
Time and Quota Variation Order 1988-011 in the case of Variation
Order 1988-029 for Division 4X.
s.
33(1) of the Regulations authorizes, for purposes
of management and control of the fisheries,
the
imposition
on
fishing
licenses
of
conditions
which may include species and
quantities of fish permitted to be taken, and the period
during
"
which fishing is permitted.
S.
33(2) says "no person fishing under the authority
of a license
shall
contravene
or
fail
to
comply
with
any
condition of the license."
It
was
made
a
condition
of
the
license
of the
Appellant
that
he
should
obey
the
provisions
of
whatever
variation
orders
should
be
in effect.
Variation orders are
orders issued by fisheries
officials
to
control
species
and
quantities
of
fish permitted to be taken, and the periods when
fishing is permitted.
s.
34
of
the
Fisheries
Act
author ize s
the
Governor-in-Council
to make Regulations, and s.
34(m) provides
for Regulations "authorizing a person engaged or employed in the
administration or enforcement of this Act to vary any close time
or fishing quota that has been fixed by the Regulations."
"
6
The Regulations resulting from s.
and 5 of the Atlantic Fishery Regulations:
n4.
A Regional Director-General may, by order,
vary any close
time
or
fishing
quota
Regulations. n
S.5 requires that notice of the variation be given to
the
persons
affected or likely to be affected by the variation
in various specified ways.
The variation orders relevant to the
present case were broadcast in the
over
the Canadian Coast Guard mar~ne radio station in Yarmouth,
N.S.
The relevant regulatory
XXIII
of the Regulations establishing Groundfish close times by
species, stock area, and vessel classification.
24 and 25 of Schedule XXIII govern
Subarea
5 are closed to haddock fishing by Class C vessels from
Dec.
30 to Dec.
31 in each year.
XXIII is set forth in s. 87 of th~ Regulations.
The
nominal
close
periods
clearly intended to be expanded by variation orders.
S.
88 of the Regulations, central to the
scheme relevant in the present case, is as follows:
n88(1)
Where,
"
Regulations, a person is prohibited from fishing for
a species of groundfish
in
a
engaged
in
a
fishing
trip in that stock Area for
another
species
of
groundfish,
retain
a
quantity of incidentally caught grounflsh
34(m) are
SSe
4
fixed
by
these
usual
and
accepted
manner
scheme
hinges
on
Schedule
Subsections 23,
haddock.
Division
4X
and
The authority for
Schedule
in
Schedule
XXIII are
regulatory
pursuant
to
these
Stock
Area
and
is
that
person ~ay
7
not exceeding a fishing quota of 10 per cent of
the
total
weight
of all groundfish on board his vessel
that are not prohibited and were taken in that Stock
Area during that fishing trip.
"(2)
Where fishing
for
a
species
of
groundfish
with
a Class A vessel or Class C vessel
in Subdivision 4Vn, Division 4VsW,
4X,
5Y or
5Z
is
prohibited
a
person
may, with a Class A vessel or
Class C vessel, fish for and retain during
anyone
fishing
trip
,a
quantity of the prohibited species
not exceeding a fishing quota of 1,500 kg."
For example,
if
a
variation
order
is
in
effect
extending
the Schedule XXIII close time to a particular period,
thereby making a species of fish a.~prohibited
species"
during
that period,
SSe
2 of s.
88 of the Regulations may be used by
the Department to impose
"trip
limits"
for
that
species
by
varying
the 1,500 kg.
fishing quota.
Unless there has been a
variation of the close period under Schedule XXIII, a
variation
order
purporting
to
change
the by-catch or trip limit quotas
under s.
88 cannot be effective because the species to which it
relates
has not been made a prohibited species, saving only for
the nominal period of December 30-31.
The Crown has referred to s.
19 of the Fisheries Act
which states:
"no
one,
without lawful excuse, the
proof whereof lies on him, shall fish for, buy, sell
or have in his possession any fish,
or
portion
of
any
fish, in a place where at that time fishing for
that fish is prohibited by law."
Under the relevant legislative scheme there must
be
a variation order extending the Schedule XXIII close time before
fishing for haddock is "prohibited by law".
8
When s. 88 of the Regulations is at issue, and it is
necessary for the Crown to prove that a species is a "prohibited
species",
the
usual
practice
is
extending the close time for that species to the period
alleged offence.
I
have found t~at proof of the variation order
establishing
a
species
as
a
prohibited
meaning of s.
88 is a necessary element of the Crown's case
R. v. Arenburg 87 N.S.R.
(2d) 164.
The Crown did not fo110~·that practice in the present
case.
Is
evidence
that
haddock
otherwise before the court?
Variation orders are usually proved
copy
of
the
order
issued
by
the
together with proof of notice to affected persons.
Variation
Order 1988-011 or -013 is in evidence; s.
Canada Evidence Act does not apply.
present case that the relevant variation orders
and
there
appears
to
be
no practice of doiQg so.
notice cannot be taken of them under
Instruments
Act."
They
must
be pro~ed
actual knowledge of the court resulting
variation
order
in
a
previous
case is not a valid basis for
taking judicial notice.
The trial judge stated that "variation orders.
have
the
force of law and the Court is able to take cognizance
of the variation orders in the same way the
to
prove a variation order
of
the
species
within the
in
is
a
prohibited
species
by
producing
a
Regional Director-General
No copy
of
21
of the
There is no evidence in the
were
gazetted,
JUdicial
s.
16
of
the
Statutory
afresh in each case,
from
production
of
a
•
court
is
able
to
9
take cognizance of any law of the country which. . . is within
the jurisdiction of the person
or
body
consider the variation orders as having the force of law because
the
chain
of
authority
going back to Parliament is valid and
within the constitution and is law that this court is
apply."
While the chain of authority is undoubted what I must
consider,
with respect, is how the court in the absence of even
a copy of
the
varition
orders
c.~n
knowledge
as to how and to what end the authority was exercised
and whether, under s.
5 of the
Regulations,
given to affected parties.
By
its
admission that variation Orders 1988-027 and
-029 "subject to their legal validity were in effect at the time
of the offence" the defence must have intended
Crown of further proof of their existence.
been in effect in the absence of close time variations,
presumably had been made by
the
earlier
which
they
referred.
The
Crown
admission of the orders as an admission
proving
the
substructure
on
which
admission is sufficient
to
distinguish
defence
could
not
have
intended
proof of the previous orders.
The reference to the "legal validity" of
referred to the manner in which the orders were issued, which is
making
it
•
I
bound
to
properly
be
fixed
with
notice
has
been
to
relieve
the
They could not have
which
variation
orders
to
was entitled to rely on the
of
the
various
facts
they
were
based.
The
R.
v.
Arenburg.
The
to hold the Crown to strict
the
orders
dealt with as the second ground of the appeal.
As the orders in question are referred to as "Haddock
Quota Variation Orders" and make reference to Haddock Close Time
and
Quota Var~ation
Order Atlantic Fishery Regulations, 1985,
1988-011 and 1988-013
it may be inferred that Variation Orders
1988-011 and -013 extended the close time for haddock fishing in
Subarea 5 and Division 4X to the relevant period.
The Crown is also
assis.t;ed
by
the
presumption
in
favour
of the regularity of official documents, but I would not
go so far as to find that presumption would save
the
variation
orders in question in the absence of the incorporating reference
on their face and their admission by the defence •
.
I
find
that haddock may be inferred to have been a
prohibited species at relevant times, and that Variation
Orders
1988-027 and -029 have been proved.
SECOND GROUND
The
ground
of
delegation,
so
called,
was argued
forcefully by the defence, and is an issue in a number of
other
fisheries appeals, several of which were heard concurrently with
the present one.
To
be
determined
is the question whether variation
orders must be signed personally by J.-E.
Hache', the
Regional
Director
General,
or
whether
it is
permissible
for him to
11
, designate a person to sign for hIm in his absence.
of
the
statement
of
facts
refers
signed by Neil Bellefontaine on behalf of the Director
but there are only two in Exhibit '4 and one of those, 1988-029,
appears to have been signed by J.-E.Hache' personally.
The
position
of
Regional
defined either in the statute
or
the
officers are appointed by the Governor-in-Council.
may
appoint
fisheries guardians and certain inspectors but the
Act does not appear to give him
broad
Nevertheless
as
head
of
the
department,
responsibile to the Governor-in-Council for its
the
minister must exercise an implied or conventional authority
to appoint officials responsible to himself and to assign
duties.
In
the
absence
of
evidence
appointment, the Regional Director General must be
be
an
official
appointed by the minister whose duties include
the issuance of variation orders
under
Regulations.
Under ·s.
34(m) of the Act, reading back from SSe
and 5 of the Regulations with the
aid
regularity,
the
Regional
Director
engaged or employed in the administration or enforcement of this
Act. "
s.
4 of the Regulations refers only to the
Director General as the person authorized to "by order, vary any
Paragraph 5
to three variation orders
General,
Director
General is not
regulations.
Fisheries
The Minister
powers
of
appointment.
and
the
person
administration,
their
of an Order-in-Council
presumed
to
SSe
4
and
5
of
the
4
of
the
presumption
of
General
must be "a person
Regional
12
, close time or fishing quota fixed by these Regulations."
There
is nothing in the statute and Regulations, nor
in the evidence, to offer guidance as to
Director
General
can
delegate
or
issuing variation orders to persons responsible to
name persons to act in his absence.
The
defence
has
invoked the maximum "delegatus non
potest delegare".
The translaton .. in
(4th) is as follows:
"A
delegate
cannot delegate~
cannot delegate his functions to a subagent
the
knowledge
or
consent
of
person to whom an office
or
cannot
lawfully devolve the duty on another, unless
he be expressly authorized to do so."
It would appear that the duty not to delegate is owed
by the delegate to his principal, who might have
objections
to
being bound by a stranger.
exist only in the absence of consent or authorization, which can
be provided by the principal.
The
regularity would cast the onus of proving the absence of consent
or
authorization
upon the person contesting the actions of the
agent, that is, the Appellant!
There is nothing in the evidence
to establigh lack of approval by the Minister.
question of reverse onus.
The Crown has discharged its duty of
proving the
variation
orders,
aided
regularity.
It
is
then
open
to
presumption.
whether
the
Regional
assign
responsibility for
him,
or
to
Black's
Law
Dictionary
an agent
without
his principal;
the
a
duty
is
delegated
understandable
The duty appears to
presumption
in
favour
of
That is
not
a
by
the
presumption
of
the
defence to rebut that
13
In R.
v.
Harrison (1977)
Justice
Dickson,
as
he
then
was,
Professor Willis' article in 21 C.B.R.
he states at p.
264:
"
•• in their application of the ~~
maximum delegatus
non
potest
governmental agencies, the courts have in most cases
preferred
to depart from the literal contruction of
the words of the statute which would require them to
read in the word 'personally' and to
construction
as
will best accord with the facts of
modern government which, being carried on in
by
elected representatives but in practice by civil
servants or local government
officers,
requires
them
to
read in the words 'or any person
authorized by it.'"
It may be helpful to consider whether the issuance of
a variation order is administrative or
True
to
form,
perhaps,
for
matters under the Fisheries Act,
variations orders appear
at
first
accurately,
the
regulatory
structure
characteristics of both.
A
variation
amendment
to
regulations passed by the Governor in Council, in
this case to Schedule XXIII and Section BB.
legislative in form.
Nevertheless,
the purpose served by variation orders
is administrative.
In essence--in pith and substance--they are
administrative measures.
They
permit access to fish stocks to
be speeded up or slowed down, halted or resumed, in response
volatile
current
data.
A traffic policeman performs the same
essential function with a
wave
of
his
1 S.C.R.
23B
S.C.C.
Mr.
refers
with
approval to
257 on delegation
where
delegare
to
modern
adopt
such
a
theory
undoubtedly
legislative
in
nature.
blush
to
be
both.
More
gives
them
apparent
order
is
a
temporary
It therefore seems
to
hand,
an
air
traffic
controller with a spoken directive.
Act is the legislation establishing the policy
fish
stocks shall be controlled by a system of quotas and close
times imposed by regulation and varied by "a person
employed in the administration or encorcement of this Act."
specific
regulatory
machinery
Governor-in-Council
in
s.
88
and
Regulations.
The
Regional
Director
administrative person empowered by s.
operate
the machinerY7 variation orders are the levers he pulls
to do so.
Despite
certain
appearances
variation
orders
must
be
considered
legislative measures.
They
were
obviously
seen
Parliament
when responsibility for the day to day decisions was
entrusted
to
"a
person
engaged
enforcement of this act".
Subdelegation of powers under s.
Act was closely considered by the Ontario Court of Appeal in
Peralta
and the Queen (1985) 16 D.L.R.
confirmed the right to delegate federal powers
the Ontario Minister of Fisheries was empowered to impose quotas
~ on Great Lakes species.
While the issues are substantially different from the
S.
34(m) of the Fisheries
that
access
to
engaged
or
The
was
created
by
the
Schedule
XXIII
of
the
General
is
the
4
of the Regulations
to
to
the
contrary,
administrative
and not
as
administrative
by
in
the
administration
or
34 of the Fisheries
Re
(4th)
259.
That case
to
a
province:
1'5
present
case,
which
merely
involves
official's responsibilities by another official
name,
the
review
of
authorities
MacKinnon, A.C.J.O. is instructive:
"
When
courts
whether
delegation
of
ministerial
intended, considerable
weight
"administrative
necessity",
that
have been expected that the minister (in
the
Governor
in
Council)
would
administrative powers given
to
such
cases the suitability of the delegate has been
a
material
factor
in
determining
delegation is intended and la~ful:
"See
Lanham,
'Delegation
Ego Pr inciple, ,
100 L.Q.R. 587
"There is no rule or presumption
against
subdelegation":
Driedger,
Legislation," 38 Can. Bar Rev.
The
language
of the statute must be interpreted in
light of what the statute is seeking to achieve.
Professor Willi~ pointed out, the
non
potest delegare" "does not state a rule of law;
it is 'at most
a
rule
of
construction'
applying
it to a statute 'there, of course, must be
a
consideration
of
the
language
enactment
and
of
its
purposes
Willis, "Delegatus Non Potest Delegare",
Rev.
257 (l 943), at p. 257.
"The first particular power
the
regulation-making
power
Council is 'for the proper management and'control of
the sea coas t
and inland fisher ies"
This
states
the
general
purpose
section and a wide authority
is
following
paragraphs
by the use, as noted earlier,
of the word "respecting", "embracing any
for
any
purpose coming within the defined subject"
matter:
Driedger, The Composition
2nd.
ed.
(1976) at p.
192.
points out that the distinction between purposes
subjects
on the one hand and powers on the other is
relevant to the subdelegation:
"'For example, if a Minister
to
make regulations respecting tariffs and tolls he
could authorize some other person to fix a tariff or
toll.,
such
a
regulation
would
respecting tariffs and tolls.
the
exercise
of
one
acting
in
his
respecting subdelegation by
have
considered
powers
was
has
been
given
to
is, it could not
this
case
exercise all the
him.
Further,
in
whether
such
and the Alter
(1984).
for
or
"Subordinate
1
(1960), at p.
22.
As
maxim
"delegatus
and
in
of
the
whole
and
objects'":
21 Can. Bar
given
under
of
the
Governor
in
(par a.
34 (a) ) •
of
the
entire
conferred
in
the
regulation
of
Legislation,
Driedger (at p. 193)
or
had
powers
clearly..be
on,e
But if the MlnIster s
16
authority is to make regulations prescribing tariffs
and
tolls then the Minister must himself prescribe,
and
cannot
delegate
that
authority
to
another.
Expressions
commonly
used
to
introduce
specific
powers
are
prescribing,
fixing,
determining,
prohibiting, requiring, establishing."
Applying
the
last
quotation
from
Driedger to the
present case, it is to be noted that the operative expression in
s.
34(m) is "authorizing
to
vary."
s.
4
of
the
Regulations,
says:
"A Regional Director General may, by order,
vary •
"
That is, S.
4 does not exceed the scope of the
enabling authority in s.
34 of the Act, but specifies how
that
authorization is to be exercised.
It is also to be noted that s. 4 does not specify how
the
order
is to be made.
In practice variation orders are in
writing signed
by
the
Regional
Director-General.
There
is
nothing
in
the
language of s.
4 to prevent the issuance of a
verbal order by the Regional Director-General to
be
commmitted
to
writing
and
promulgated
by
his officials, nor to cause a
written order to be issued in his name.
A clear distinction exists in the
case
law
between
the· delegation
of authority by the Minister and the delegation
of authority by lesser officials.
It
is
clear
the
Minister
cannot
carry out in person the many duties which fall to him as
the
most
responsible
official
in
a
departmental
chain
of
command,
duties
which
might
appear
to
require his personal
consider ation.
Fur ther down the chain of
command,
as
duties
become less sweeping in their significance, the requirement that
they
be
carried
out
by
a
designated
official,
perhaps
17
paradoxically, becomes more rigid.
In the absence of statutory
authority,
for
example,
a fisheries officer could not, acting
within
his
own
authority,
issue
a
variation
order.
(Such
statutory
authority
exists
in S.
5 of the Pacific Commercial
Salmon Regulations considered in Gulf
Trollers
Association
v.
Minister of Fisheries! Oceans (1984)
6 W.W.R.
220 F.C.C.)
That
is
not
to
say,
however,
that an official responsible to the
Regional Director General, acting in his name and on his behalf,
cannot issue a variation order.
what harm
results
when
this
occurs?
That
question takes its relevance from S.
12 of the
Interpretation Act R.S.C. 1985 (Ch. 1-21):
"Every enactment is deemed
remedial
and
shall
be
given
such
fair,
large
and
liberal
construction and interpretation as best ensures
the
attainment of its objects."
If
Parliament
had
intended the designated functionary
under s.
34
(m)
to have been one official person, and one only,
this
could have been readily achieved.
The office of Regional
Director General might have been defined, and limitations on his
authority particularized by statutory authority.
Parliament was
content, however, to allow the Governor-in-Council to attach the
authority to "a person engaged or employed in the administration
or enforcement of this Act".
The designation of that person was
left to the Governor-in-Council.
The absence of any description
of the role of the Regional Director General in the
Regulations
~ suggests
a
certain lack of formality surrounding the position.
There is little on which to base an inference that
an
official
18
for
the time being fulfilling a largely undefined function must
do so personally.
Such an inference might be drawn more readily
if the position were created and limited by statute.
engaged
in
the
administration of the Act has a duty to ensure
that the act be administered, and it follows that in the absence
of clear directives to the contrary that he should
make
reasonable arrangements for its administration in his name
when he is not personally present.
Parliament, nor the
Governor-in-Council
SSe
4
&
5 of the Regulations, could hardly have intended that
the carefully constructed administrative machine
inoperative, nor that fish stocks should be decimated, while the
Regional
Director General of the moment was on vacation or home
with the Taiwan flu.
Both Parliament and the Governor-in-Council must have
been cognizant of Sections 24(4)
and 24(5) of the Interpretation
Ac t
R. S _C. 1-21:
"(4) Words directing
other
public
officer
to
do
otherwise applying to him by
include
his
successors
in
their deputy_
"(5)
Where a power
duty imposed on the holder of an office as such, the
power
may
be
exercised
and
performed by the person for the time
with
the
execution of the powers and duties of the
office."
The language and the underlying
the
continuing
administration
of
..
A
person
be
able
to
in
passing
should
become
or
empowering
any
any act or thing, or
his
name
or
office,
the
office and his or
is
conferred
or
a
the
duty
shc:ll
be
being
charged
intent
seem
plain:
government
must
continue
19
independently
of
the
physical
presence
of
any
individual
official.
SSe (5)
seems broadly drawn to make this clear, even
in the absence of any acts of appointment or designation of
the
"person for the time being charged •• •• "
As already noted, s. 4 of the Regulations stops short
of saying the variation orders the Regional Director General may
issue
must
be signed by his hand alone.
If no other official
has been "charged with the execution of the
powers
and
duties
of
the
office"
by the Minister q~ the Governor-in-Council, it
does not seem unreasonable that
the Regional
Director
General
should
"charge"
a
person
with the continuing function of his
office in his
absence.
Here
it
appears
he
authorized
the
issuance
of
variation
orders by the Regional Director General
over the hand of Neil Bellefontaine signing "for"
the
Regional
Director-General,
J.-E.Hache.
Mr.
Hache remained responsible
to the minister who appointed him, who in turn
was
responsible
for his department to the Governor in Council, for orders issued
in
the
exercise
of
authority
granted
to
The
Regional
Director-General by the Governor-in-Council under s.
4
of
the
Regulations.
The
order in question was in his name and signed
by another hand.
No one to whom the orders applied was misled
nor
prejudiced.
The
actual
authority
was
exercised
with
apparent authority.
The Crown has invoked the maximum "omnia praesumuntur
rita esse acta," to which I have referred as the presumption
of
regularity.
It is translated in Black's Law Dictionary as:
"a
prima facie presumption of the regularity of the acts of
public
20
officers exists until the contrary appears."
that the contrary has appeared.
I
do not accept this ground of
appeal.
Between
the
drafting
foregoing
I
have
been
referred
by
dicisions
of
the
County Court in which similar arguments were
considered.
MacDonald, C.C.J.
came to conclusions similar
mine in R.
v.
McRae
(Febru ary 27, 1989 SN.
and Haliburton, C.C.J.
came to a different conclusion in R.
Porter
(C.Y.
4353 March 17, 1989 unreported).
THE
THIRD GROUND
The Appellant's position is that the variation orders
do
not apply to his vessel:
they relate to Class C vessels and
the Allison and Kristan is a C-2 vessel; he argues there
evidence to show that the Class C designation includes Class C-2
vessels.
Apparently
Class
"C"
vessels
subdivided into Class C-l and C-2 classifications but
nothing
in
the
evidence
to indicate the regulatory scheme by
which this was accomplished, nor its relevance
appeal.
Exhibit C-l is the fishing license for the Allison and
Kristan
and shows her to be 64 feet in length, licensed to fish
otter trawl as a dragger.
It may be noted
I
do
not
find
and
the
issuance
of
the
counsel
to
two
recent
to
116655 unrepor ted)
v.
is
no
have
recently
been
there
is
to
the
present
that
otter
trawl,
21
dragged behind the vessel, is mobile gear.
The relevant notices
of varation
orders
in
Exhibit
i5
which
were
broadcast
in
accordance
with s.
5 of the Regulations include the definition
of the class "C" vessels to which the variation
orders
relate:
"Class
·C· vessels are vessels less than 19.8 meters in overall
length using mobile gear."
As noted above, 19.8 meters
is
the
equivalent of 65 feet.
If
that
were not conclusive, the statement of facts
includes an admission that the App~~lant was fishing a Class "C"
vessel.
I find no merit in this ground of appeal.
Accordingly,
the
appeal
against
conv iction
is
d ismi ssed.
with
respect to the sentence appeal,
I find that the
fine is fit and proper
in
the
circumstances.
The
order
of
forfeiture
reflects
the
value of the fish un,lawful1y taken by
the Appellant; the lawful portion of his catch was not involved.
In
my
opinion
the
trial
judge
proceeded
on
the
proper
principles.
I dismiss the appeal against sentence.
COURT
TWO
IN THE
COUNTY
COURT
OF
DISTRICT NUMBER
TWO
ON APPEAL
FROM
THE
PROVINCIAL COURT
BETWEEN:
HER MAJESTY THE
QUEEN
-
and
DOUGLAS
W.
BROWN
HEARD
BEFORE:
His Honour Judge P.
R. Woolaver
PLACE HEARD:
Shelburne,
Nova Scotia
DATE(S)
HEARD:
March 17, 1988, May 19, 1988, October 13, 1988
CHARGE:
That he at or near Shelburne in the County of
Shelburne,
Nova Scotia, on or about the 19th
day of February 1988 did fail to comply with
a condition of a licence specified under the
authority of Subsection 33(1) of the Atlantic
Fishery Regulations, 1985, to wit: did take
in excess of the quantity of haddock specified
in Variation Order # 1988-027, and Variation
Order # 1988-029, contrary to Subsection 33(2)
of the said Regulations, and did thereby
commit an offence pursuant to Subsection 61(1)
of the Fislleries Act, R.S.C. 1970, c. F-14, as
amended.
COUNSEL:
Donald G. Harding, Esq.~ for the Prosecution
S. Clifford Hood., Q.C., for the Defence
CAS EON
A P PEA L
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.