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 an

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