2006 BCCA 277err2 R. v Kapp

Before:	The Honourable Chief Justice Finch
	The Honourable Mr. Justice Mackenzie
	The Honourable Mr. Justice Low
	The Honourable Madam Justice Levine
	The Honourable Madam Justice Kirkpatrick

C. Harvey, Q.C.	Counsel for the Appellants
C.J. Tobias and A. Semple	Counsel for the Respondent
J.J. Arvay, Q.C. and M.G. Underhill	Counsel for the Intervenor, Tsawwassen First Nation
A. Brown	Counsel for the Intervenor, Tseshaht First Nation
J.K. Lowes	Counsel for the Intervenor, Sport Fishing Defence Alliance B.C.
F.M. Kirchner	Counsel for the Intervenor, Cowichan Tribes
Place and Date of Hearing:	Vancouver, British Columbia
5 – 9 December 2005
Place and Date of Judgment:	Vancouver, British Columbia
8 June 2006

Written Reasons by:

The Honourable Mr. Justice Low

Written Reasons Concurring in the result by:

The Honourable The Honourable Mr. Justice Mackenzie (page 36, paragraph 97)

Written Reasons Concurring in the result by:

The Honourable Madam Justice Kirkpatrick (page 47, paragraph 117)

Written Reasons Concurring in the result by:

The Honourable Chief Justice Finch (page 64, paragraph 154)

Written Reasons Concurring in the result by:

The Honourable Madam Justice Levine (page 65, paragraph 159)

Reasons for Judgment of the Honourable Mr. Justice Low:

[1] In 1998 the federal Crown filed eleven informations charging a total of 145 commercial gillnet fishers with fishing during a close time. Ten of the informations were held in abeyance pending the outcome of a trial on the eleventh information. Ten of the accused fishers were named on that information. It charged that the ten accused:

. . . on or about the 20th day of August, 1998, in or near Area 29 as defined in the Pacific Fishery Management Area Regulations, in Canadian Fisheries Waters in the Province of British Columbia, unlawfully did fish for salmon with a gillnet during a close time contrary to s. 53(1) of the Pacific Fishery Regulations, 1993, and did thereby commit an offence contrary to s. 78 of the Fisheries Act, R.S.C. 1985, Chapter F-14 and amendments thereto.

[2] The other ten informations contained the same charge except that the offence date in each was August 19^th.

[3] On 28 July 2003, after a six-week trial, Kitchen P.C.J. entered a stay of proceedings of the charge as a remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms. The reason given for the stay was a breach of the equality rights of the ten accused under s. 15(1) of the Charter due to the issuance of a communal fishing licence to three First Nations bands pursuant to a government policy called the Pilot Sales Program (the “PSP”). He ruled that the PSP was not saved by s. 1 of the Charter. The decision of the trial judge can be found at [2003] B.C.J. No. 1772 (Prov. Ct.) (QL), 2003 BCPC 279.

[4] On the same day, without taking pleas, the trial judge entered stays of proceedings on the other ten informations.

[5] The Crown brought a summary conviction appeal. On 12 July 2004, Brenner C.J.S.C. overturned the order of the trial judge. He held that the PSP did not have a purpose or effect that was discriminatory under s. 15(1) of the Charter. He set aside the stays of proceedings on all eleven informations and he convicted the ten accused who had been tried. His reasons are at [2004] B.C.J. No. 1440 (S.C.) (QL), 2004 BCSC 958.

[6] The appeal judge later sentenced the ten convicted accused. He suspended sentence for six months without conditions and he imposed a fine of $100 with respect to each of them. The sentencing reasons are at [2004] B.C.J. No. 2388 (S.C.) (QL), 2004 BCSC 1503.

[7] There are 54 appellants before us. Five of them were among the ten convicted. Those appellants want their convictions set aside and reinstatement of the stay of proceedings entered by the trial judge. The other 49 appellants want reinstatement of the stays of proceedings they were successful in obtaining.

[8] Section 53(1) of the Pacific Fishery Regulations, S.O.R./93-54 creates the offence charged. That section reads:

53.(1) No person shall fish in any waters set out in column I of an item of Part I of Schedule VI for the species of salmon set out in column II of that item with the type of fishing gear set out in column III of that item during the close time set out in column IV of that item.

[9] Part I of Schedule VI prescribes a close time from January 1 to December 31 in each year for gill net fishing for all types of salmon. The fishery in a particular area or areas is opened from time to time by ministerial variation orders as part of the legislated and regulated management of the fisheries resource.

[10] The charging section is s. 78 of the Fisheries Act, R.S.C. 1985, c. F-14. It reads:

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

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

(b) an indictable offence . . .

In this case, the Crown proceeded summarily.

[11] At the commencement of the trial, the ten accused, through counsel, made several admissions of fact in writing. For example, para. 7 of the admissions related to the conduct of the appellant John Michael Kapp. That admission reads:

7. At or around 12:30 a.m. on August 20, 1998, the Fishing Vessel "Galaxie", CFV 26011 fished for salmon with a gillnet in the Canadian Fisheries Waters of the Lower Fraser River, in or near "Area 29" at or near the City of Vancouver in the Province of British Columbia. John Michael Kapp was the only individual on board "Galaxie", and he was engaged in fishing for salmon with a gillnet. The Fishing Vessel "Galaxie" had a valid "E" licence to gillnet fish in Area "E" for salmon, a copy of which is included in Appendix "F".

[12] Each of the ten accused made a similar admission with respect to his conduct on the offence date. There was also a formal admission that when the ten accused fished, Area 29 was closed to salmon fishing. The admissions proved all the elements of the offence charged and therefore were sufficient to establish the case for the prosecution.

[13] For a 24-hour period commencing at 7:00 a.m. on 19 August 1998, designated members of three First Nations bands were permitted to fish for salmon for sale in Area 29 pursuant to the Aboriginal Communal Fishing Licences Regulations, S.O.R./93-332 (the “ACFLR”), in particular, communal licences issued under those regulations as part of the PSP policy. The three bands are the Musqueam, the Burrard, and the Tsawwassen bands (collectively, the “MBT”).

[14] Prior to trial, the accused gave written notice of constitutional challenges to the ACFLR and their specific components. To the extent that the notice applies to this appeal, the appellants asserted:

(1) that certain aspects of the ACFLR violate s. 15 of the Charter “in that they authorize exclusive commercial fishing by an organization whose membership is based on race, a prohibited form of racial discrimination”;

(2) that certain sections of the ACFLR amount to an unconstitutional sub-delegation of powers granted by Parliament to the Governor in Council by s. 43 of the Fisheries Act;

(3) that the ACFLR are invalid because they grant an exclusive fishery that abrogates the public right of fishing without the clear and plain legislative authority of Parliament; and,

(4) that, in the alternative to (3), if Parliament did authorize the creation of an exclusive fishery that takes away the public right to fish, such authorization is ultra vires federal legislative power pursuant to s. 91(12) of the Constitution Act, 1867.

[15] On 2 November 2004, Donald J.A. granted the appellants leave to appeal on the Charter equality issue and on the exclusive fishery issues. He was not asked to grant leave on the sub-delegation issue. The Crown says that issue is not properly before this court and that we should not consider it. I agree with the Crown’s submission on that point and will not deal with the sub-delegation issue as a ground of appeal.

[16] Finch C.J.B.C. later directed the empanelling of a five-judge division because the appellants’ arguments on the exclusive fishery issues involve a challenge to this court’s decision in R. v. Huovinen (2000), 146 C.C.C. (3d) 301, 2000 BCCA 427, leave to appeal denied [2000] S.C.C.A. No. 478 (QL).

[17] It is my opinion that the constitutional issues argued by the appellants lack merit. Their arguments in this appeal focus on the PSP and the limited opening of Area 29 on the offence dates without taking into account the larger context of the Fisheries Act and the regulations enacted pursuant to it. To support my view of the issues, I will describe the legislative and regulatory structure of the management of the fisheries in this province. I will also identify the relevant political choices made by government in the complex administration of these fisheries.

Federal Fisheries Act, the ACFLR, and the PSP

[18] Since at least the time of Magna Carta in 1215, there has been a common law right (not a constitutional right) to fish in tidal waters. This right can be abrogated only by the enactment by Parliament of competent legislation: see R. v. Gladstone, [1996] 2 S.C.R. 723, 137 D.L.R. (4th) 648 at para. 67.

[19] The common law right to fish in Canada has been substantially limited by the Fisheries Act. That statute and the regulations passed pursuant to it control fishing. A right to fish in waters to which the statute has application does not exist in law unless authorized under that statute, usually by licence.

[20] Under s. 7 of the Fisheries Act, Parliament delegated to the Minister of Fisheries and Oceans (the “Minister”) the power to issue fishing licences. That section reads:

7.(1) Subject to subsection (2), the Minister may, in his absolute discretion, wherever the exclusive right of fishing does not already exist by law, issue or authorize to be issued leases and licences for fisheries or fishing, wherever situated or carried on.

[21] Section 43 of the Fisheries Act delegates to the Governor in Council the power to make regulations. The portions of that section that may be relevant to the present discussion read:

43. The Governor in Council may make regulations for carrying out the purposes and provisions of this Act and in particular, but without restricting the generality of the foregoing, may make regulations

(a) for the proper management and control of the sea-coast and inland fisheries;

(b) respecting the conservation and protection of fish;

. . .

(f) respecting the issue, suspension and cancellation of licences and leases;

(g) respecting the terms and conditions under which a licence and lease may be issued;

. . .

(l) prescribing the powers and duties of persons engaged or employed in the administration or enforcement of this Act and providing for the carrying out of those powers and duties; and

(m) where a close time, fishing quota or limit on the size or weight of fish has been fixed in respect of an area under the regulations, authorizing persons referred to in paragraph (l) to vary the close time, fishing quota or limit in respect of that area or any portion of that area.

[22] The Supreme Court of Canada has emphasized time and again that Charter analysis must be contextual. The context of this dispute involves the Fraser River sockeye salmon, one of the most complex of all of the world’s fisheries. The formidable task facing the fisheries managers was summarized by Donald M. McRae and Peter H. Pearse in a 2004 report for the Government of Canada entitled Treaties and Transition: Towards a Sustainable Fishery on Canada’s Pacific Coast (“the McRae-Pearse Report”):

Salmon pose a unique challenge to fisheries managers. They comprise five species and hundreds of stocks, each with its particular life cycles, yield capacity and natal spawning grounds. Many are fished by Americans as well as Canadians, by three sectors of the commercial fleet as well as recreational and aboriginal fishers, at sea and in freshwater fisheries extending from the Queen Charlotte Islands to B.C.’s central interior.

Knowledge of the abundance of stocks is often uncertain. Complicating matters, because of the migratory nature of salmon, the government has to apply an order of priority to demands on the fish, opposite to the order in which the fish are encountered. The first priority is to provide for adequate spawners on the spawning grounds in the headwaters and tributaries of rivers; second is the provision for aboriginal food, social and ceremonial needs (aboriginal food fishery), mainly down-stream along the rivers and estuaries but also along the coast; and the third is recreational and commercial fishing, mostly at sea.

This means that managers have to plan in reverse, providing for each of the main fishing groups in anticipation of higher priority demands on the fish further along their migratory path.

[23] The Department of Fisheries and Oceans (“DFO”) is charged with the responsibility of managing the fishery. As noted above, this includes the daunting task of protecting a sufficient escapement to preserve the runs and allocating the rest of the fish among the various groups participating in the fishery.

[24] There are five species of salmon that are harvested commercially – chinook, sockeye, coho, pink, and chum. Sockeye is the most important to the commercial fishing industry and to the aboriginal communities. This type of salmon spends two years in the northern parts of the Pacific Ocean and then migrates back to the Fraser River on one of two routes on either side of Vancouver Island. Most of the authorized catch of Fraser River sockeye is fished by the operators of large seine and trawler boats before the fish arrive at the mouth of the Fraser River.

[25] Historically, the Fraser sockeye runs were as large as 37 million fish before railway construction in the Fraser Canyon in 1913 nearly wiped out the runs on the upper river. Fish ladders at Hell’s Gate and other habitat remediation slowly brought the runs back from a low of 1.5 million fish to about 16 million in the 1990s. Before World War II, in an ugly chapter in our history, government-supported racial discrimination against Japanese and other “Oriental” fishers marred the industry. Echoes of that unhappy time still agitate the present and heighten sensitivities.

[26] In recent years, the major challenges to the fishery have been economic rather than societal in nature. The fishery has been beset by smaller runs, apparently due to a prolonged cyclical decline in the natural production. The decline in numbers has been coupled with lower prices resulting from an oversupply of farmed salmon in world markets. The combination of fewer fish and lower value has hurt all sectors of the industry.

[27] For thousands of years the aboriginal communities on the west coast of this country have relied heavily on fishing for survival. Fishing has also been an integral part of their culture. From 1888, fisheries regulations provided for aboriginal food fishing but prohibited aboriginal peoples from selling the fish they caught. Many aboriginal communities in this province, including the Musqueam and the Tsawwassen bands, assert a traditional right to sell or exchange fish.

[28] In R. v. Sparrow, [1990] 1 S.C.R. 1075, 70 D.L.R. (4th) 385, the court found that there is constitutional protection of the rights of aboriginal people to fish for food and for social and ceremonial purposes. In that case, the principal issue was whether a net-size restriction in a Musqueam Band food-fishing licence was inconsistent with s. 35(1) of the Constitution Act, 1982. That section of the constitution preserves the “existing aboriginal and treaty rights of the aboriginal peoples of Canada.” The Crown contended that the Fisheries Act regulations extinguished the band’s fishing rights. The court found that the Crown had failed to prove extinguishment and went on to consider the scope of the “existing Musqueam right to fish.” The court noted that the case had not been presented on the footing of an aboriginal right to fish for commercial purposes.

[29] The court said that it agreed with the “general tenor” of the following argument made on behalf of Mr. Sparrow:

[77] Conservation is a valid legislative concern. The appellants concede as much. Their concern is in the allocation of the resource after reasonable and necessary conservation measures have been recognized and given effect to. They do not claim the right to pursue the last living salmon until it is caught. Their position, as I understand it, is one which would give effect to an order of priorities of this nature: (i) conservation; (ii) Indian fishing; (iii) non-Indian commercial fishing; or (iv) non-Indian sports fishing; the burden of conservation measures should not fall primarily upon the Indian fishery.

[30] The court found in Sparrow that the trial judge had not made the findings of fact needed to answer the constitutional question. It confirmed the order for a new trial that had been made by this court. The constitutional question at the retrial was to be determined “according to the analysis set out in [the] reasons” of the Supreme Court of Canada. I agree with the Crown that this decision and other decisions of the courts left many questions unanswered as to the scope of aboriginal fishing rights.

[31] Aboriginal fishers and cannery workers have been part of the commercial industry from its earliest days. In his 1982 report entitled Turning the Tide: A New Policy For Canada’s Pacific Fisheries, Dr. Pearse addressed the history of Aboriginal involvement in the fishery and observed: “When the modern fishery developed in the last century, the Indians of the Pacific coast adapted to the new technology of fishing and canning much more readily and successfully than they adapted to other industries.” Aboriginal participation declined in the 1920s and 1930s with the trend toward consolidation of salmon canneries and larger fishing vessels and packers. Dr. Pearse recommended that aboriginal fishing rights be clarified and that aboriginal fishers be enabled to exploit their fishing rights commercially.

[32] Subsequent to the decision in Sparrow, the federal government, in June 1992, announced an Aboriginal Fisheries Strategy (the “AFS”) and introduced the Aboriginal Fisheries Agreements Regulations, S.O.R./92-415. Those regulations were replaced as of 16 June 1993 by the ACFLR. Both sets of regulations were made under the authority of s. 43 of the Fisheries Act.

[33] The AFS was a policy statement that announced, among other things, “[increased] economic opportunities in Canadian fisheries for Aboriginal people” and “demonstration projects to test the sale of fish caught by Natives.” The AFS was a response to the Sparrow decision and to major studies of the west coast fisheries in the 1980s. The PSP and the ACFLR were products of the strategy. The ACFLR are law. The PSP was policy that was implemented under the legal authority of the ACFLR.

[34] The AFS was an effort to expand “the role of Natives in the fisheries . . . while conserving fish stocks and maintaining a stable environment, predictable resource-sharing and profitable fisheries for all interests.” The trial judge found at para. 39 of his reasons that in 2002 aboriginal fishers owned or operated 47 percent of the seine fleet. The proportion of the Area "E" gillnet commercial licence holders is smaller but still substantial, estimated at about 35 percent.

[35] By 1997, the DFO claimed that the AFS had improved stability in the fishery while providing a greater aboriginal role in management and harvesting. Specifically, it stated that the AFS had contributed to better monitoring of aboriginal fishing, improved cooperation on enforcement, more selective fishing, and reduction in protests, confrontation, and litigation.

[36] The appellants challenge the effectiveness of the DFO in achieving these objectives, but not the objectives themselves. Indeed, they support one prominent part of the DFO policy, the purchase or voluntary retirement of commercial licences and the transfer of some of those licences to aboriginal groups and individuals. The number of vessels fishing under Area "E" commercial licences declined from 1400 in 1992 to 405 in 1998. The number of vessels fishing under MBT licences went up from 68 to 80 in 1994 and has remained constant thereafter.

[37] The AFS, however, underlined the DFO position that initiatives to expand aboriginal involvement in the commercial fishery were undertaken as a matter of government policy and not by acceptance of aboriginal commercial rights in the fishery. The DFO’s position was reinforced by the rejection of an Aboriginal right to take salmon for sale commercially in R. v. Van der Peet, [1996] 2 S.C.R. 507 and R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672.

[38] The ACFLR apply to fisheries nationwide. They provide in s. 4 that the Minister may “issue a communal licence to an aboriginal organization [defined in s. 2 as including, inter alia, ‘an Indian band’ or ‘an Indian band council’] to carry on fishing and related activities.” Section 5.(1) of the ACFLR reads, in part, as follows:

5.(1) For the proper management and control of fisheries and the conservation and protection of fish, the Minister may specify in a licence . . . any condition respecting any of the following matters,

. . .

(l) the disposition of fish caught under the authority of the licence.

[39] The ACFLR clearly empower the Minister to issue to bands such as the MBT licences for the harvesting of salmon for sale. Attached to these regulations is a policy statement. Under the heading “Benefits” is the following explanation:

The regulations and communal licences will provide a clear and simple regulatory framework for the management of Aboriginal fisheries which will meet the requirements set out in the Sparrow decision through accommodating the negotiation of licence terms and conditions. The regulations also will make the management of Aboriginal fishing consistent with the communal nature of Aboriginal fishing rights, provide Aboriginal organizations with new roles in fisheries management and enhance the control of Aboriginal communities over their own affairs. By creating a framework for the regulation of all Aboriginal fishing, these Regulations will promote continued stability in all fishing industry sections, provide the Department of Fisheries and Oceans with the mechanism to ensure conservation of the resource and reduce tensions among fishery users.

[40] Some of the predictions in this policy statement may not have come to pass, but the political purpose of the PSP and the ACFLR was clear. In my opinion, the appellants merely attack the political result of the implementation of the policy of the federal government.

[41] The Crown’s factum at para. 19 contains a useful description of the implementation of the ACFLR:

19. Approximately 70 Fisheries Agreements were negotiated annually with aboriginal groups throughout the Province. These groups received communal licences under the ACFLR authorizing fishing in accordance with the Fisheries Agreements. Fisheries Agreements negotiated under the Aboriginal Fisheries Strategy contained some or all of the following:

a) a harvest allocation to the aboriginal group;

b) terms and conditions to be included in the Communal Fishing License (including provisions for catch monitoring, reporting and enforcement);

c) arrangements for the co-management of the aboriginal fishery by the group and the Department;

d) cooperative management projects for improving the management of fisheries generally, such as stock assessment, fish enhancement and habitat management; and

e) a commitment to provide commercial fishing licences or other economic development opportunities.

[42] Only three of the 70 agreements contained a PSP component; one of these was the MBT agreement. Another was an agreement with the Hupacasath/Tseshaht First Nations near Port Alberni on Vancouver Island. Chief Judith Sayers of the Hupacasath First Nation testified at the trial. The agreement with her people was different from the MBT agreement in several respects including timing of openings and type of fishing gear permitted. Her evidence gave a broader perspective to the positive effects of communal licences issued under the PSP. I agree with the observation of the appeal judge that the constitutional issues raised cannot be properly considered without regard to the effect of the PSP on other aboriginal communities that participated in it, as well as on the many other aboriginal communities that might have benefited from such participation.

[43] The DFO acknowledged that the extension of the AFS to include a commercial sale component was largely a matter of pragmatism. The PSP was not expanded after 1992 but the three existing licences were renewed annually.

[44] It is important to note that each agreement that implemented the PSP contained a provision that there could be no PSP fishery opening without a general commercial opening. As stated by the appeal judge in para. 105 of his reasons, the real impact of the PSP on the non-MBT gillnet fishers was that they simply were given the right to fish at different times than were the MBT designated fishers. In the Fraser River, the PSP opening was prior to the general commercial opening and in the Alberni Inlet and the Somass River areas the order was reversed. I would not disturb the finding of the summary conviction appeal judge that the PSP opening had “a relatively minor impact in terms of catch numbers” in Area 29 and that there was even less of an impact on the Fraser River sockeye run as a whole. In absolute numbers, less than 60,000 of the 2.2 million sockeye salmon caught in the 1998 Fraser River run went to the MBT under the PSP.

[45] One of the purposes of the PSP was to test commercial salmon fishing by aboriginal communities on the basis that it might be incorporated into treaties. This was part of a strategy to reach negotiated settlements with bands, as encouraged by the courts, rather than to litigate. Under this program, the Minister, represented by officers in the DFO, made the various agreements with the aboriginal communities.

[46] In evidence is a multi-year fisheries management agreement made between the DFO and the MBT on 15 May 1995 and amended in subsequent years. It was under the terms of this agreement that the MBT were licensed to fish communally during the limited opening on the offence dates, 19 and 20 August 1998. The relationship between the agreement and treaty negotiations is identified in clause 1.(5) of the agreement:

1.(5) The Parties acknowledge that the subject matter of this Agreement may become the subject of treaty negotiations between the Federal Crown and a First Nation and that, should this occur, the value of any benefit that has been obtained by the First Nation through this Agreement may be considered in those negotiations and, if the First Nation agrees, may be listed in the resulting treaty as partial fulfilment of the Federal Crown's responsibilities under the treaty.

[47] The MBT agreement provided for the issuance of licences to the bands by the DFO. Each band designated the individual band participants and issued designation cards to them. The band provided the DFO with a list of those so designated.

[48] At trial there was a considerable body of evidence about the history of the Fraser River fishery and the reasons for its current management. Several experts testified. There was evidence about the impact of the ACFLR on the aboriginal communities and on the commercial fishing fleet. None of the ten accused testified but they called as witnesses fourteen members of the commercial fishing community. The thrust of the evidence of these witnesses was that, from their perspective, the PSP created economic hardship for them, that it had negative effects on management of the fishery and on conservation, and that these witnesses were offended by the provision to a separate group, the MBT, of its own opportunity to fish.

[49] The McRae-Pearse Report estimated that the aboriginal food fishery has averaged about 12 percent of the total catch of Fraser River sockeye “but this portion has varied widely mainly because the aboriginal catch has remained fairly steady while the commercial catch fluctuated dramatically.” The pattern of allocation of fish by DFO to the remaining sectors of the industry (apart from the food fishery) appears to be relatively stable. About two thirds of the total commercial catch of Fraser River sockeye is taken by seiners and trollers before the runs reach Area "E" (of which Area 29 is a part) where the appellants and PSP fishers are licensed. The recreational fishery takes less than one percent of the total commercial catch. In the years 1992 to 1998, the PSP catch has been less than 20 percent of the combined Area "E" commercial and PSP catch, except for the 1994 low-cycle year when it was 41 percent. Overall, the PSP represents less than five percent of the total sockeye harvest.

[50] The vicissitudes of the industry have continued. In a sense, this confrontation over the PSP is one flashpoint in a pervasive industry malaise, in large part due to declines in the stock and worldwide market conditions beyond DFO control. The appellants support increased aboriginal participation in the commercial fishery but they insist that it be one integrated commercial fishery rather than divided by the PSP into separate openings. They view the PSP as a preference that discriminates on the basis of race and has no constitutional sanction, unlike the aboriginal food fishery which underpins the balance of the AFS. The Crown agrees that the PSP licences are not premised on an aboriginal right to fish commercially but defends the PSP as an appropriate initiative in the overall management of the salmon fishery. The PSP initiative involves contracts made annually with the participating bands that caps the number of salmon that can be harvested by the bands in the food fishery as well as commercially and is intended to assist in the management of the food fishery. Whether it has succeeded in that objective is hotly contested.

[51] Like many policies involving ministerial discretion that have been implemented in the management of the fisheries over the years, the PSP was controversial and gave rise to a variety of perceptions about its impact, perceptions that found their way into the evidence. But, as will be developed below, the PSP policy implemented under the ACFLR through the exercise of ministerial discretion was a political choice. It was not adjudicative of people’s legal rights. Therefore it was not reviewable by the courts in the absence of a complaint of a breach of natural justice or a constitutional challenge. Only the latter is ventured here.

Non-Charter Constitutional Issues

[52] The appellants contend that the words “in his absolute discretion” in s. 7 of the Fisheries Act, by which Parliament delegated to the Minister the power to issue licences to fish, do not authorize the Minister “to create exclusive fisheries and to issue race-based licences.” It seems to me that the legal authority for the communal licensing was not s. 7 of the statute. Rather, the communal licences were granted pursuant to s. 43 and the ACFLR. The Minister did not therefore exercise his absolute discretion. In any event, the argument is that Parliament did not delegate to the Governor in Council or to the Minister the power to create such fisheries.

[53] The appellants further contend that even if the PSP and the communal licences issued in furtherance of it were authorized by Parliament, they were ultra vires the federal government because they infringed the exclusive power of the province over property and civil rights by creating an “exclusive fishery” for the MBT. They say that the MBT fishery was based on bloodline and excluded most Canadians.

[54] The Fisheries Act and its regulations, viewed collectively, are concerned with management of the fisheries and allocation of the resource among licensed users of the fisheries after conservation imperatives are addressed. The PSP and the communal licences were simply part of the regulatory scheme in force at the relevant time.

[55] The trial judge was bound by Huovinen and did not determine the non-Charter constitutional issues. However, in discussing the Charter issue, he appears to have found that the PSP created an exclusive fishery. The appeal judge saw the communal licences as being an allocation of the resource between user groups and not an exclusive fishery.

[56] In my opinion, the appeal judge was correct in his finding on this point. The appellants have presented no argument that persuades me otherwise.

[57] The simple answer to the appellants’ contention is that the MBT communal licence did not create a separate fishery at all. The MBT licence was only one of the methods of allocation of the resource. The fishery was the entire stock of fish migrating to and up the Fraser River annually. Individual or group allocations of the available stock (after limitations for conservation purposes) were part of the management of the fishery. Each allocation did not create a separate fishery.

[58] If I am wrong in concluding that the MBT licence did not create a separate fishery, the law is against the contention of the appellants that it created an exclusive fishery. In The History and Law of Fisheries, (London: Stevens and Hayes, 1903) at 35, the term “exclusive fishery” is defined by Stuart and Hubert Moore as follows:

1. Exclusive fisheries are those in which one has the sole and exclusive right of fishing, either by reason of the ownership of the soil and its profits, or because the right of fishing is derived from the owner of the soil. These fisheries, in both tidal and non-tidal waters, are sometimes described as "several" and sometimes as "free".

[59] In Coulson & Forbes on Waters and Land Drainage, 6^th ed. (London: Sweet and Maxwell, 1952) at 407, the author, S.R. Hobday, defines a “several fishery”:

A several fishery is the exclusive right of fishing in a particular place, a fishery in which no other person has an equal right with the owner.

[60] All licences issued by the Minister merely permit fishing at a particular place and time and do not grant an exclusive right to fish. The Minister retains the discretion to permit others to fish at the same place and time. The MBT were merely licensed to fish for salmon in a designated area for a 24-hour period. Their communal licence did not give them a proprietary right, or the right to fish to the exclusion of all other persons. The communal licences were subject to quotas. I am unable to find in the MBT licence, in the agreement with the MBT, or in the PSP any language that would connote exclusivity, a transfer of property, or the creation of a civil right.

[61] The Huovinen decision did not specifically deal with the division of powers issue or the exclusive fishery issue, but Huddart J.A., writing for the court, did discuss the scope of the ACFLR, the statute and the general regulations. She said that the regulations “must be read harmoniously.” I would add that the regulations and the statute must also be read harmoniously.

[62] The contention of the commercial fishers in Huovinen was that the ACFLR did not give the Minister the authority to issue communal licences that authorized the sale of fish caught under the licences. The court disagreed. Huddart J. A. referred at para. 20 to Comeau’s Sea Foods Ltd. v. Canada, [1997] 1 S.C.R. 12, 142 D.L.R. (4th) 193 at para. 36 in which the court said, in reference to s. 7(1) of the Fisheries Act, that the Minister’s discretion was “restricted only by the requirements of natural justice, no regulations currently being applicable” and that it resulted in “an administrative scheme based primarily on the discretion of the Minister.”

[63] In Huovinen at para. 24, Huddart J.A. said that a decision of the Minister to “grant a licence or vary the fishery closure is an allocation of the fishery resource among competing users, a political choice.” She said that “the regulatory scheme is designed to leave the political choice and thus the political accountability for allocation decisions with the Minister.”

[64] In their constitutional notice, the appellants claimed that the ACFLR are invalid because, without the authority of Parliament, they create an exclusive fishery and take away the public right to fish. However, in argument they say that it is the PSP that does this because it creates a fishery that excludes most Canadians. In effect, they say that the common law right to fish was taken away by the implementation of the PSP and that only Parliament can impose such a limitation on the right.

[65] No matter how it is cast, I do not accept this argument. Parliament limited the common law right to fish by enacting the Fisheries Act. Parliament delegated to the Minister the power to issue licences to fish and delegated to the Governor in Council the power to make regulations with respect to the issuance of licences. The Governor in Council passed the ACFLR, which give the Minister the authority to issue communal licences that include the right to sell fish. Under that policy, the MBT acquired such a licence. I see no basis for concluding that all of this is not regulation properly authorized by Parliament simply because the communal licence was issued to the MBT and was not available to all Canadians.

[66] I would not give effect to the non-Charter constitutional arguments of the appellants. The MBT licence did not create an exclusive fishery and issuance of it was within the delegated authority of Parliament. The appellants presented no effective challenge to this court’s reasoning or conclusion in Huovinen. There has been no infringement of a provincial power.

Charter Equality Issue

[67] Section 15(1) of the Charter reads:

15.(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[68] The governing authority with respect to a s. 15(1) analysis is Law v. Canada, [1999] 1 S.C.R. 497, 170 D.L.R. (4th) 1. After stating that the analysis requires “a purposive and contextual approach” in order “to avoid the pitfalls of a formalistic or mechanical approach,” Iacobucci J., at para. 88, said that a court should make three broad enquiries:

A. Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics?

B. Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds?

and

C. Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?

[69] In an article written by Professor Peter W. Hogg, entitled What is Equality? The Winding Course of Judicial Interpretation and published at (2005), 29 Sup. Ct. L.R. (2d) 39, the learned author, at p. 61, states that the first part of the enquiry under Law is whether:

(1) The challenged law imposes (directly or indirectly) on the claimant a disadvantage (in the form of a burden or withheld benefit) in comparison to other comparable persons; . . .

[70] In their constitutional notice the appellants challenged certain aspects of the ACFLR as violating their rights under s. 15(1) of the Charter “in that they authorize exclusive commercial fishing by an organization whose membership is based on race, a prohibited form of racial discrimination.” In this court they say they do not challenge the ACFLR and that the “impugned law” merely results from the ACFLR. They say that “only the racially segregated commercial fishery created by the PSP is challenged.”

[71] What the appellants really challenge is the MBT communal licence issued for the 24-hour period commencing at 7:00 a.m. on 19 August 1998. They say that because they were not permitted to fish during that opening of the fishery they were denied the right to equal benefit of the law.

[72] The Crown says that in the trial court the appellants attacked the ACFLR on Charter grounds and that the evidence led went well beyond the issuance of the PSP licence to the MBT. The evidence went to the effect of the PSP and the findings of the trial judge went beyond the effects of the MBT licence alone. The Crown argues that the use of discretion exercised pursuant to a law can be challenged under s. 15(1) only by attacking the law that is its source. The ACFLR were the law that empowered the Minister (through the DFO) to issue the MBT licence, so only the ACFLR can be the subject of the Charter challenge of the appellants. The Crown argues that the discretionary implementation of a law cannot be challenged under s. 15(1) absent a challenge to the law itself and relies on R. v. S.(S.), [1990] 2 S.C.R. 254, 57 C.C.C. (3d) 115.

[73] I do not agree that S.(S.) stands for such a broad proposition. That case was about the decision of the Attorney General of Ontario not to implement a certain program authorized by s. 4 of the Young Offenders Act, a federal statute. Many other provinces had implemented the program. The court said that “the law” for the purpose of a s. 15(1) analysis was s. 4 of the statute and not the decision of the Attorney General not to implement the section.

[74] I think the more applicable authority on this point is Eldridge v. B.C. (A.G.), [1997] 3 S.C.R. 624 in which a distinction was made between definitions in provincial medical statutes and the services rendered by those charged with the provision of medical services under the statutes. In that regard, La Forest J., at para. 20, said this:

There is no question, of course, that the Charter applies to provincial legislation; see RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573. There are two ways, however, in which it can do so. First, legislation may be found to be unconstitutional on its face because it violates a Charter right and is not saved by s. 1. In such cases, the legislation will be invalid and the Court compelled to declare it of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982. Secondly, the Charter may be infringed, not by the legislation itself, but by the actions of a delegated decision maker in applying it. In such cases, the legislation remains valid, but a remedy for the unconstitutional action may be sought pursuant to s. 24(1) of the Charter.

[Emphasis added.]

(See also Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] S.C.J. No. 6 (QL), 2006 SCC 6 at para. 22.)

[75] This does not mean, however, that one looks only to a particular law or its discretionary implementation in determining whether there has been discrimination contrary to the Charter. In my opinion, it would be an error in the present case to focus on the MBT licence and the partial opening of the fishery and to consider the claim of inequality in that narrow context.

[76] Both the trial judge and the appeal judge assumed that the appellants were denied a benefit of the law. Neither judge had for consideration the decision of the Supreme Court of Canada in Auton v. B.C. (A.G.), [2004] 3 S.C.R. 657, 2004 SCC 78.

[77] In Auton the inequality claim arose out of the failure of the provincial government to provide certain behavioural therapy for preschool-aged autistic children. McLachlin C.J.C. stated the issue as follows (para. 2):

[2] . . . the issue before us is not what the public health system should provide, which is a matter for Parliament and the legislature. The issue is rather whether the British Columbia Government's failure to fund these services under the health plan amounted to an unequal and discriminatory denial of benefits under that plan, contrary to s. 15 of the Charter. . .

[78] At para. 21, McLachlin C.J.C. described the s. 15 analysis under earlier cases as comprising two questions: “first, whether there is unequal treatment under the law; and, second, whether the treatment is discriminatory.” In the ensuing paragraph she said that Law provided for three analytical requirements: “(1) differential treatment under the law; (2) on the basis of an enumerated or analogous ground; (3) which constitutes discrimination.” At para. 23 she said that different issues will arise in different cases and that all the components of s. 15(1) must be met “as they apply to the case at hand.” With reference to Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, 56 D.L.R. (4th) 1, the Chief Justice referred to what was also said in Law, as cited above, that equality issues were to be looked at substantively and contextually and not on a formalistic basis. The purpose of s. 15(1) is “to prevent perpetuation of pre-existing disadvantage through unequal treatment.”

[79] The Chief Justice next discussed the issue of whether the claimants in Auton were seeking a benefit provided by law. She stated her conclusion as follows:

[47] I conclude that the benefit claimed, no matter how it is viewed, is not a benefit provided by law. This is sufficient to end the inquiry. However, since this is the first case of this type to reach this Court, it is appropriate to consider whether the petitioners would have succeeded had they established that ABA/IBI therapy was a benefit provided by law, by being designated as a non-core benefit.

[Emphasis added.]

[80] Returning to the present case, the first question to ask is this: did the discretionary implementation of the ACFLR deny the appellants a benefit provided by law? In my opinion, it did not. In Auton there was no benefit provided by the law in issue. In the present case there was a benefit provided by law, but the appellants were not denied that benefit. As in Auton, the claim of Charter inequality fails at the outset.

[81] The MBT designated fishers were given licensed fishing rights under the ACFLR that were not available to the appellants or to other non-MBT Canadians. At first glance it might appear therefore that the appellants and others were denied a benefit provided by law. But that is the kind of “formalistic or mechanical” analysis that is to be avoided. It defies common sense to consider the PSP, the MBT communal licence or the ACFLR in isolation from the fisheries management scheme as a whole. Through the exercise of ministerial discretion under regulations other than the ACFLR, the appellants were given the right to fish under commercial licence during other openings of the fishery in 1998. The MBT communal licence and the commercial licences under which the appellants fished were both parts of the overall scheme by which the Minister allocated the resource among various user groups. In commencing the s. 15(1) analysis by determining if the appellants were denied a benefit, “the law” to be considered is much broader than just the ACFLR or their implementation through ministerial discretion.

[82] After a proper examination of the regulatory scheme as a whole, it is apparent that the appellants were not denied a benefit of the law. The licensing scheme did not constitute unequal treatment of either the appellants or of the MBT. There was no disadvantage to the appellants in the form of a withheld benefit of the law. I agree with the submission of the Crown that this was essentially a policy dispute over the mechanics of providing each of the user groups with access to the resource.

[83] I have had the advantage of reading in draft form the judgment of Mr. Justice Mackenzie. Although I prefer to rest my conclusion on the first stage of the Law analysis, I agree with his reasoning and the conclusion he has reached on the third stage of the analysis.

[84] I would dismiss the Charter claim of the appellants.

Charter, s. 25

[85] The intervenor Tsawwassen First Nation urged Brenner C.J.S.C. and this court to apply s. 25 of the Charter to defeat the s. 15(1) claim of the appellants. The Crown and the appellants both opposed that position.

[86] Section 25 reads:

The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including

a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and

b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.

[87] It is arguable that s. 25 is a threshold issue where a Charter breach is asserted by a claimant (in this case the s. 15 breach asserted by the appellants) and aboriginal rights are said to be engaged. But it is also arguable that the words “shall not be construed” in s. 25 suggest that the section does not have application until the claimant proves the Charter breach alleged and the court determines that the breach is not saved by s. 1.

[88] I am inclined to think that s. 25 need not be considered at least until the claimant gets past the first test in the Law analysis. Section 25 does not foreclose assertion of a Charter right. It suggests that where there is a conflict between a claimant’s Charter right and rights of aboriginal people, the latter shall not be affected. In the present case, I have determined that there is no conflict of rights because the appellants were not denied a benefit of the law. This makes it unnecessary to consider the scope of s. 25 in this case.

[89] I do not wish to lay down a stringent rule regarding the stage in the overall analysis at which s. 25 must be considered. I am unable to anticipate the various scenarios in which the section could potentially be raised. The proper view might be that the point at which s. 25 must be considered will depend on the circumstances of the particular case. I have expressed my view as to the need to consider the section in the circumstances of this case and I am reluctant to say anything more about the topic for fear of hampering a reasonable analytical approach in other cases.

[90] I have had the benefit of reading in draft form the reasons of Madam Justice Kirkpatrick. I have some reservations about whether aboriginal commercial fishing comes under “other rights” in s. 25, but I prefer to refrain from deciding that issue in this case. As I have stated above, and as my colleague states in para. 145 of her reasons, the extent of aboriginal fishing rights in law has not yet been determined by the courts and those rights are a matter of ongoing treaty negotiations. I think that determination of the scope of s. 25 is better left for a case in which a claimant establishes a Charter breach, or at least gets past the first hurdle in the Law analysis.

Charter Remedy

[91] Although it is not necessary to determine the issue of remedy because of the failure of the appeal on the constitutional issues, I question whether any remedy was available to the appellants under s. 24(1) of the Charter upon proof of a breach of their rights under s. 15(1). The appellants do not claim that the breach they assert arose out of the offence section (s. 53(1) of the Pacific Fishery Regulation), the charging section (s. 78 of the Fishery Act), the conduct of the DFO officers, or the conduct of the prosecution.

[92] On the offence dates the appellants conducted what they call a “protest fishery” which, like “civil disobedience”, is a term unknown to the law. They deliberately broke a law in order to attack the PSP on constitutional grounds. Both the trial judge and the appeal judge so found. Even if the law under which the MBT fishers fished on the offence dates was in breach of the equality rights of the appellants, it remained unlawful for the appellants to fish on those dates.

[93] What distinguishes this case from all other criminal cases in which Charter rights are raised and with which I am familiar is that the appellants do not challenge the constitutionality of the law they disobeyed. As I have said, they do not claim that either s. 53(1) of the regulations or s. 78 of the statute offends their Charter rights. Nor do they challenge any provision in the law (such as a presumption clause or a reverse onus clause) that would have assisted the prosecutor in obtaining a conviction.

[94] There is no point to the airing of a Charter issue in a criminal or quasi-criminal proceeding unless resolution of the issue might lead to the end of the prosecution or to the exclusion of evidence. This was the subject of discussion in R. v. Vukelich (1996), 78 B.C.A.C. 113,108 C.C.C. (3d) 193, leave to appeal refused, [1997] 2 S.C.R. xvi, and in R. v. Pires; R. v. Lising, [2005] 3 S.C.R. 343, 2005 SCC 66 at paras. 33 to 35. In Pires, Charron J. said this at para. 35:

[35] The concern over the constructive use of judicial resources is as equally, if not more, applicable today as it was 15 years ago when Garofoli was decided. For our justice system to operate, trial judges must have some ability to control the course of proceedings before them. One such mechanism is the power to decline to embark upon an evidentiary hearing at the request of one of the parties when that party is unable to show a reasonable likelihood that the hearing can assist in determining the issues before the court.

[95] I do not wish to elaborate on this point because it was not fully argued before us. But I think the Crown would have been well advised to take the position at the beginning of the trial that, regardless of the merits of the Charter equality claims with respect to the ACFLR or the PSP, no remedy was available because the appellants deliberately broke a law other than the law they challenge. The lengthy trial in this case might have been avoided on this basis.

Conclusion

[96] I would dismiss the appeal.

“The Honourable Mr. Justice Low”

Reasons for Judgment of the Honourable Mr. Justice Mackenzie:

[97] I have had the opportunity to read in draft the reasons for judgment of my colleague, Mr. Justice Low. I agree that the appeal should be dismissed and with his reasons on the non-Charter issues. I adopt his outline of the factual context of these proceedings and I have used the same acronyms. My approach to the Charter issues differs in emphasis, although not in result.

[98] I have endeavoured to apply the three-stage analytical framework laid down in Law v. Canada, [1999] 1 S.C.R. 497. I have concluded that the appellants have not established that the impugned licence has a discriminatory purpose or effect. Consequently, in my view, the appellants have failed to satisfy the third element of the Law test and therefore have failed to establish that their s. 15 equality rights have been infringed.

[99] The position of the Crown on this appeal is that neither the PSP nor the communal licences engage any Charter or aboriginal rights. Nor does the Crown assert that the licences are affirmative action programs intended to benefit disadvantaged individuals or groups within s. 15(2) of the Charter. The Crown also disavows any aboriginal rights justification under s. 25 of the Charter or s. 35 of the Constitution Act, 1982. The Crown says simply that the PSP and the communal licences are a valid exercise of the authority delegated to the Minister of Fisheries and Oceans to manage the fishery under the Fisheries Act, R.S. 1985, c. F-14, and regulations.

[100] Law outlined three central elements in the test for s. 15 discrimination (per Iacobucci J. at para. 23):

(1) whether a law imposes differential treatment between the claimant and others;

(2) whether an enumerated or analogous ground of discrimination is the basis for the differential treatment; and

(3) whether the law in question has a "discriminatory" purpose or effect.

[101] In discussing the first element, Iacobucci J. in Law re-emphasized the importance of the correct characterization of the claimants and the group to which they are properly compared as outlined by McIntyre J. in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143:

[24] McIntyre J. began his discussion of the requirement of differential treatment by noting, at p. 164, that equality is a comparative concept, "the condition of which may only be attained or discerned by comparison with the condition of others in the social and political setting in which the question arises". It is impossible to evaluate a s. 15(1) claim without identifying specific personal characteristics or circumstances of the individual or group bringing the claim, and comparing the treatment of that person or group to the treatment accorded to a relevant comparator. This comparison determines whether the s. 15(1) claimant may be said to experience differential treatment, which is the first step in determining whether there is discriminatory inequality for the purpose of s. 15(1).

[Emphasis added.]

[102] The characterization of the appellants’ group and the appropriate comparator is controversial. The appellants submit that the correct comparison is between salmon gillnet fishers with commercial licences to fish in Area "E", excluding MBT fishers with commercial licences, (“the claimant group”) and fishers designated by the Musqueam and Tsawwassen bands as authorized to fish under the communal licence (“the comparator group”). For the purpose of these reasons I do not find it necessary to resolve the comparison controversy and I will assume that the appellants’ position is correct without canvassing the contrary arguments, which were accepted by the summary appeal judge. I also assume that the different opening for the individual and communal licences is “differential treatment” sufficient to satisfy the first element of the Law criteria.

[103] The appellants contend that the claimant group is a multi-ethnic group that includes aboriginal persons from bands other than the MBT, and the comparator group is limited to persons with a bloodline connection to the MBT through ancestry. The appellants say that the distinction between the two groups is based on a ground of discrimination analogous to race, a ground of discrimination enumerated in s. 15(1) of the Charter. On this view, the second element of the Law criteria is satisfied.

[104] While the first and second elements of the Law test are in issue, in my view, the third element presents the decisive test of the appellants’ case — does the MBT licence have a discriminatory purpose or effect? Iacobucci J. in Law (at paras. 25 to 27) stressed the contextual nature of this part of the analysis, again with reference to Andrews:

[25] McIntyre J. emphasized that true equality does not necessarily result from identical treatment. Formal distinctions in treatment will be necessary in some contexts in order to accommodate the differences between individuals and thus to produce equal treatment in a substantive sense: see pp. 164-69. Correspondingly, a law which applies uniformly to all may still violate a claimant's equality rights. The main consideration, McIntyre J. stated, at p. 165, must be the impact of the law upon the individual or group to whom it applies, as well as upon those whom it excludes from its application. He explained that the determination of the impact of legislation, by its nature, must be undertaken in a contextual manner, taking into account the content of the law, its purpose, and the characteristics and circumstances of the claimant, among other things. Hence, equality in s. 15 must be viewed as a substantive concept. Differential treatment, in a substantive sense, can be brought about either by a formal legislative distinction, or by a failure to take into account the underlying differences between individuals in society.

[26] Moving on to discuss the requirement that a s. 15(1) claimant show that differential treatment is discriminatory

Citation:	*R. v. Kapp,*
	2006 BCCA 277