R. v. Munro, 2024 BCSC 173

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Munro, 2024 BCSC 173 Date: 20240202 Docket: 30571 Registry: Prince Rupert Rex v. Adam Thomas Munro, 605463 B.C. Ltd. - and - Docket: 30572 Registry: Prince Rupert Rex v. Adam Thomas Munro, ATM Fishing Ltd. and Silas Levesque Before: The Honourable Justice Maisonville On appeal from: Decisions of the Provincial Court of British Columbia dated April 8, 2022 ( R. v. 605463 B.C. Ltd ., Masset Registry File No. 6930-1) and September 28, 2022 ( R. v. Munro , Masset Registry, File No. 6931-1) Reasons for Judgment Counsel for the Crown: A.M.

Switzer Counsel for the Appellants, Adam Thomas Munro, 605463 B.C. Ltd., and Silas Levesque: I.M. Knapp Place and Date of Hearing: Prince Rupert, B.C. November 17, 2023 Place and Date of Judgment: Prince Rupert, B.C. February 2, 2024 Table of Contents Overview ... 3 THE DECISIONS BELOW ... 3 Munro . 3 605463 B.C. Ltd. 5 The Regulatory Framework .. 7 The Central ISSUE ON APPEAL .. 10 Legal principles .. 10 Standard of Review .. 10 Statutory

Interpretation .. 12 Position of the Appellants .. 14 Separating the Roles of the Minister and the GIC .. 14 Proposed Errors . 15

Section 9 of the Act 17 Analysis .. 18 Distinction between the Roles of the Minister and the GIC .. 18 The Regulatory Regime . 19 Sub-Delegation .. 22 1. Licence Conditions as Elements of the Offence . 22 2. Sub-Delegation .. 24 Sentence Appeal .. 28 conclusion .. 29 Overview [ 1 ] The two

summary conviction appeals before the Court, which will proceed together, concern the statutory vires of s. 22(7) of the Fishery (General) Regulations , SOR/93-53 [ FGRs ] promulgated under the Fisheries Act , R.S.C. 1985, c. F-14 [ Act ].

Section 22(7) renders it an offence to fail to comply with licence conditions set out by the Minister of Fisheries and Oceans (the “Minister”). [ 2 ] The central issue before the Court is whether s. 22(7) of the FGRs , made pursuant to s. 43 of the Act , is ultra vires the powers of the Governor in Council (“GIC”) granted by Parliament, and whether the promulgation of s. 22(7) constituted unlawful sub-delegation. [ 3 ] In the alternative, the appellants, Mr. Munro, 606463 B.C. Ltd., and Mr.

Levesqaue, argue that their sentences should be varied and that additional fines for accrued monetary benefits should be eliminated therefrom. [ 4 ] For the reasons that follow, both grounds of appeal are dismissed. THE DECISIONS BELOW [ 5 ] This appeal arises from two decisions of the Provincial Court of British Columbia in R. v. Munro , 2022 BCPC 203 [ Munro ] and R. v. 605463 B.C. Ltd. , 2022 BCPC 77 [ 605463 B.C. Ltd . ]. Counsel have asked that the appeals, given the same argument is being advanced, proceed together.

Munro [ 6 ] In the summer of 2018, the fishing vessel Wind Walker I participated in the British Columbia’s Salmon Area F Salmon Troll Fishery near the village of Masset, Haida Gwaii, BC, for which the Wind Walker I was properly licensed. Adam Munro was the owner of the vessel and Silas Levesque was the skipper, also known as the vessel master. Both Munro and Levesque possessed a valid fish harvester registration card.

Munro was also the sole director of ATM Fishing Ltd. between July 22 and August 9, 2018. [ 7 ] The Wind Walker I’s Conditions of Licence allowed for the catch and retention of 390 Chinook salmon in 2018. The court below held the Crown had established beyond a reasonable doubt that the Wind Walker I had failed to cease fishing upon catching its 390 Chinook salmon quota in contravention of the Conditions of Licence: [55] The Wind Walker I was required by its Conditions of Licence to cease fishing for Chinook salmon in 2018 upon catching 390 Chinook salmon.

The Conditions of Licence were valid and attached to Salmon Troll Licence 2018 AT 3150 2018. Upon offloading its catch on August 8, 2018, the Wind Walker I had 294 more Chinook salmon than allowed by its VRQ. The Wind Walker I had failed to acquire all or part of another fishing licence holder’s 2018 Area F TAC of Chinook salmon to allow for the catching of 684 Chinook salmon. [56] The only rational conclusion to be drawn from the evidence is that the Wind Walker I did not cease fishing for Chinook salmon when the maximum of 390 Chinook salmon were caught.

Munro, as the vessel owner, and Levesque, as the vessel skipper, therefore caught fish in contravention of s. 22(7) of the Fishery (General) Regulations , committing an offence contrary to s. 78 (

a) of the Fisheries Act . [ 8 ] While the trial judge noted that it is common practice in British Columbia for licence holders in the commercial fishery to transfer a share of their total allowable catch to another licence holder, no such transfer was demonstrated in the instant circumstances. [ 9 ] At trial, the appellants, Mr. Munro and Mr. Levesque, unsuccessfully argued that s. 22(7) of the FGRs , which is the provision of the regulations governing fishing licence condition violations, that renders such a violation an offence under the Act , was ultra vire s.

It was argued that it amounted to sub-delegation by the GIC to Parliament of legislative powers and sub-delegation of such powers is not permitted at law.

[ 10 ] The trial judge rejected this argument and found Mr. Munro guilty of Counts 1 and 3 and Mr. Levesque guilty of Counts 1, 3, and 4 under the Act . The counts were set out as follows: Count 1 Adam Munro, Silas Levesque, and ATM Fishing Ltd., between July 22, 2018, and August 9, 2018, at or near the Village of Masset, in the Province of British Columbia, while carrying out activities under the authority of a licence, to wit, Salmon Area F Salmon Troll Licence 2018, did contravene or fail to comply with a condition of the licence, to wit: Fishing for Chinook shall cease when the maximum set out in subsection 1(1)(a)(

i) is reached, contrary to Section 22(7) of the Fishery (General) Regulations , and did thereby commit an offence contrary to

Section 78 (

a) of the Fisheries Act . Count 3 Adam Munro, Silas Levesque, and ATM Fishing Ltd., between July 22, 2018, and August 15, 2018, at or near the Village of Masset, in the Province of British Columbia, and elsewhere in the Province of British Columbia, did possess fish caught in contravention of the Fisheries Act or its regulations contrary to

Section 33 of the Fisheries Act , and did thereby commit an offence contrary to

Section 78 (

a) of the Fisheries Act . Count 4 Silas Levesque, between July 28, 2018, and November 5, 2019, at or near the Village of Masset, in the Province of British Columbia, while carrying out activities under the authority of a licence, to wit, Salmon Area F Salmon Troll Licence 2018, did contravene or fail to comply with a condition of licence, to wit: the vessel master shall submit fish slips as required by licence not later than seven (7) days after landing, contrary to Section 22(7) of the Fishery (General) Regulations , and did thereby commit an offence contrary to

Section 78 (

a) of the Fisheries Act . [ 11 ] In the sentencing judgment, R. v. Munro , 2023 BCPC 5 , on Count 1, each of Mr. Munro and Mr. Levesque was sentenced to a fine of $2,500; on Count 3, each of Mr. Munro and Mr. Levesque was sentenced to a fine of $1,000; and on Count 4, Mr. Levesque was sentenced to a fine of $5,000. Mr. Munro and Mr. Levesque each were also subjected to a penalty pursuant to s. 79 of the Act in the amount of $21,537.75, representing the value of the catches said to have been caught unlawfully. 605463 B.C.

Ltd. [ 12 ] The second appeal concerns a vessel called Winter Wind, which was owned by the company, 605463 B.C. Ltd., and skippered by Mr. Munro. Four charges were approved against the three accused as follows: Count 1 Adam Thomas Munro, 605463 B.C.

Ltd., and Michael Andrew Bullock were charged that, between July 22, 2018 and August 11, 2018, at or near the Village of Masset, in the Province of British Columbia, while carrying out activities under the authority or a licence, to wit, Salmon Area F Salmon Troll Licence 2018, did contravene or fail to comply with a condition of licence, to wit: fishing for Chinook shall cease when the maximum set out in subsection 1(1)(a)(

i) is reached, contrary to Section 22(7) of the Fishery (General) Regulations , and did thereby commit an offence contrary to s. 78 (

a) of the Fisheries Act . Count 2 Adam Thomas Munro, 605463 B.C. Ltd., and Michael Andrew Bullock, between April 30, 2019 and July 17, 2019, at or near the Village of Masset, in the Province of British Columbia, while carrying out activities under the authority of a licence, to wit, Salmon Area F Salmon Troll Licence 2018, did contravene or fail to comply with a condition of licence, to wit: the licence holder shall ensure that all paper harvest logs issued are delivered to the catch reporting service provider by April 30, 2019, contrary to s. 22(7) of the Fishery (General) Regulations , and did thereby commit an offence contrary to s. 78 (

a) of the Fisheries Act . Count 3 Adam Thomas Munro, 605463 B.C. Ltd., and Michael Andrew Bullock, between July 22, 2018 and August 30, 2018, at or near the Village of Masset, in the Province of British Columbia, did sell fish caught in contravention of the Fisheries Act or its regulations contrary to s. 33 of the Fisheries Act , and did thereby commit an offence contrary to s. 78 (

a) of the Fisheries Act . Count 4 Adam Thomas Munro, 605463 B.C. Ltd., and Michael Andrew Bullock, between July 22, 2018 and August 30, 2018, at or near the Village of Masset, in the Province of British Columbia, did possess fish caught in contravention of the Fisheries Act or its regulations, contrary to s. 33 of the Fisheries Act , and did thereby commit an offence contrary to s. 78 (

a) of the Fisheries Act . [ 13 ] In his decision, 2022 BCPC 77 , the trial judge noted that the evidence led established that the defendants, Mr. Munro, 605463 B.C. Ltd., and Mr. Bullock, had purchased additional quota through a broker, but for unexplained reasons, that quota was not formally lodged with the relevant fishing licence. The defendants were found to have not made adequate efforts to ensure that this occurred. [ 14 ] Ultimately, Mr. Munro and 605463 B.C. Ltd. were found guilty on all counts. [ 15 ] In the sentencing judgment, R. v. Munro , 2023 BCPC 4 , Mr. Munro and 605463 B.C.

Ltd. were each subject to a fine of $2,500 on Count 1; $5,000 on Count 2; $1,000 on Count 3; and $1,000 on Count 4. Mr. Munro and 605463 B.C. Ltd. were also each subjected to a penalty pursuant to s. 79 of the Act in the amount of $10,540.69.

The Regulatory Framework [ 16 ] The principal object of the Act is to properly manage and control the fisheries. It provides a framework for the management and control of fisheries and delegates to both the GIC and the Minister separate and complementary tasks to further its general objectives. [ 17 ] The Act expressly delegates the power to create regulatory offences to the GIC in ss. 78 and 43 .

Section 78 creates offences for either violating a provision of the Act or violating its regulations: Punishment not otherwise provided for 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 and liable, for a first offence, to a fine not exceeding five hundred thousand dollars and, for any subsequent offence, to a fine not exceeding five hundred thousand dollars or to imprisonment for a term not exceeding two years, or to both. [ 18 ] The regulatory powers of the GIC relevant to this appeal are set out at s. 43(1) of the Act as follows: Regulations 43

(1) 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) respecting the proper management and control of the seacoast and inland fisheries, including for social, economic or cultural purposes; (

b) respecting the conservation and protection of fish; […] (

c) respecting the catching, loading, landing, handling, transporting, possession and disposal of fish; (

d) respecting the operation of fishing vessels; […] (

e) respecting the use of fishing gear and equipment; (e.1) respecting the marking, identification and tracking of fishing vessels; (e.2) respecting the designation of persons as observers, their duties and their carriage on board fishing vessels; […] (

f) respecting the issuance, suspension and cancellation of licences and leases, including (

i) if the lease or licence holder or the applicant for that lease or licence is a party to an agreement in respect of the lease or licence that contravenes any provision of this Act or of the regulations, or (ii) if the applicant for the lease or licence is a corporation; (

g) respecting the terms and conditions under which a licence and lease may be issued; […] (g.1) respecting any records, books of account or other documents to be kept under this Act and the manner and form in which and the period for which they shall be kept; (g.2) respecting the manner in which records, books of account or other documents shall be produced and information shall be provided under this Act ; […] (

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; […] (

p) prescribing anything that is required or authorized by this Act to be prescribed. [ 19 ] In consequence, pursuant to ss. 43 and 78 of the Act , the GIC holds broad authority to regulate or create offences and to carry out

the purposes and provisions of the Act for proper management and control of the fisheries respecting conservation and protection of fish. [ 20 ] The Minister is also granted certain regular regulation-making powers.

The powers granted to the Minister include making agreements respecting the matters of fisheries management (s. 4.1); implementing programs for the purposes of the Act and making limited regulations to control that (s. 4.4); designating fishery officers and controller power (s. 5); designating people responsible for administering and enforcing the act (s. 38); allocating the proceeds from the sale of fish to fund scientific and management effort (s. 10); requiring studies assessments and analysis of work which may harm fish or obstruct their free passage (ss. 20, 21, and 37); authorizing works which may harm fish or fish habitat (s. 35); and making directions and limited subordinate regulations respecting the dumping of substances (s. 36). [ 21 ] There are 40 sets of regulations issued under the Act , and numerous offences have been created within the various regulations.

The FGRs create obligations on fishers and, thus, create corresponding offences under the Act for failure to comply with those obligations. [ 22 ] Moreover, a number of these obligations in the FGRs are subject to penal consequence, including without limitation:

a) Section 11 (holder of licence to produce it on demand);

b) Section 12 (vessel registration card to be kept on board and produced on demand);

c) Section 15 (no alterations to document nor used by anyone other than the holder); and,

d) Section 19 ( where there is a transfer of ownership of a registered vessel and the vessel is not registered in the name of the new owner, one cannot use the vessel as a fishing vessel) . [ 23 ] In 1993, the GIC promulgated the FGRs . These regulations included s. 22(7) , which is at issue in these appeals. The

section reads: No person carrying out any activity under the authority of a licence shall contravene or fail to comply with the condition of the licence. The Central ISSUE ON APPEAL [ 24 ] Centrally, the appellants argue that s. 22(7) of the FGRs is ultra vires the power of the GIC, and that the trial judge in Munro erred in not finding that to be so. They suggest that the GIC does not have authority under the Act to create offences respecting violations of licence conditions.

More specifically, they say that the Act does not allow for sub-delegation and that s. 22(7) of the FGRs amounts to, or requires the sub-delegation of power. [ 25 ] The issue on appeal was raised at trial in Munro , and in 605463 B.C. Ltd. , it was raised in a motion subsequent to trial that was dismissed. In its submissions, the Crown consented to this appeal proceeding in respect of both decisions, given that the issue is the same and that the same appellant is implicated, Mr. Munro.

Legal principles Standard of Review [ 26 ] The instant appeal concerns a question of law raised in respect of two Provincial Court decisions. This is not a judicial review proceeding wherein the statutory vires of s. 22(7) of the FGRs has been challenged directly. Regardless, whether a regulation is ultra vires the applicable statutory grant is a question of law, which, in a

summary conviction appeal from a Provincial Court decision would attract a correctness standard of review. This is the standard I adopt in the instant appeal. [ 27 ] I note that Supreme Court of Canada has held that in order to find that a regulation is ultra vires a statute on the basis of inconsistency with statutory purpose, it would have to be “irrelevant”, “extraneous”, or “completely unrelated” to the statutory purpose: Katz Group Canada Inc. v.

Ontario (Health and Long - Term Care) , 2013 SCC 64 at para. 28 . [ 28 ] In approaching the analysis, I have reviewed the following interpretive principles set out in West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal) , 2016 BCCA 473 [ West Fraser Mills BCCA ] at para. 45: [45] […] i. a regulation is presumed to be intra vires the empowering statute.

The onus is on a person challenging the vires of a regulation to demonstrate that it is ultra vires ; ii. where a statute confers power to make regulations, those powers are to be construed broadly and purposefully; and, iii. an impugned regulation should, where possible, be interpreted in a manner that falls within the scope of the regulation-making power set out in the statute. [ 29 ] Although not necessary to disposition of this appeal, I note that, with respect to statutory vires questions in the judicial review context there is some interesting discussion with respect to the applicable standard of review.

I note the following passage from West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal) , 2018 SCC 22 [ West Fraser Mills ], where the standard

or review was contemplated in respect of a statutory vires question: [23] It is true that this Court, in Dunsmuir [v. New Brunswick, 2008 SCC 9], referred to prior jurisprudence to indicate that truequestions of jurisdiction, which some suggest the present matter raises, are subject to review on a standard of correctness — noting,however, the importance of taking a robust view of jurisdiction. Post-Dunsmuir, it has been suggested that such cases will berare: Alberta (Information and Privacy Commissioner) v.

Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 33.We need not delve into this debate in the present appeal. Where the statute confers a broad power on a board to determine whatregulations are necessary or advisable to accomplish the statute’s goals, the question the court must answer is not one of vires in thetraditional sense, but whether the regulation at issue represents a reasonable exercise of the delegated power, having regard to thosegoals, as we explained in Catalyst [Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5] and Green [v.

Law Societyof Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360], two recent post-Dunsmuir decisions of this Court where the Court unanimouslyidentified the applicable standard of review in this regard to be reasonableness. In any event, s. 26.2(1) of the Regulation plainly fallswithin the broad authority granted by s. 225 of the Act as an exercise of statutory

interpretation. This is so even if no deference isaccorded to the Board and if we disregard all of the external policy considerations offered in support of its position. [30] This passage followed a holding at the Court of Appeal that the applicable standard of review on statutory vires questions wascorrectness: West Fraser Mills BCCA at paras. 43 and 46.

To be clear, West Fraser Mills had its inception in a judicial reviewapplication, not an appeal. [31] Indeed, in the context of judicial review on questions of statutory vires, there is authority to suggest that that the presumption ofreasonableness discussed in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 overtook the correctnessstandard from West Fraser Mills BCCA: Portnov v. Canada (Attorney General), 2019 FC 1648, aff’d 2021 FCA 171 at para. 24;Innovative Medicines Canada v.

Canada (Attorney General), 2020 FC 725at paras. 61–63. [32] Ultimately, however, as the Supreme Court of Canada indicated in West Fraser Mills, and as the Federal Court has indicated inPortnov and Innovative Medicines Canada, it may be that “nothing ultimately turns on this question” and “[t]he result is the samewhether the applicable standard of review is correctness or reasonableness”: Portnov at para. 24. Statutory

Interpretation [33] Statutory

interpretation is to be conducted in accordance with the general scheme adopted by the Supreme Court of Canada inBell Express Vu Limited Partnership v. Rex, 2002 SCC 42 [Bell], which sets out: [26] In Elmer Driedger’s definitive formulation, found at p. 87 of his Construction of Statutes (2nd ed. 1983): Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Driedger’s modern approach has been repeatedly cited by this Court as the preferred approach to statutory

interpretation across a widerange of interpretive settings: see, for example, Stubart Investments Ltd. v. The Queen, (SCC), [1984] 1 S.C.R. 536, atp. 578, per Estey J.; Québec (Communauté urbaine) v. Corp. Notre-Dame de Bon-Secours, (SCC), [1994] 3 S.C.R. 3, atp. 17; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, at para. 21; R. v. Gladue, (SCC),[1999] 1 S.C.R. 688, at para. 25; R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65, at para. 26; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001SCC 2, at para. 33, per McLachlin C.J.; Chieu v.

Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, 2002 SCC 3, atpara. 27. I note as well that, in the federal legislative context, this Court’s preferred approach is buttressed by s. 12 of the

InterpretationAct, R.S.C. 1985, c. I-21, which provides that every enactment “is deemed remedial, and shall be given such fair, large and liberalconstruction and

interpretation as best ensures the attainment of its objects”. [27] The preferred approach recognizes the important role that context must inevitably play when a court construes the written wordsof a statute: as Professor John Willis incisively noted in his seminal

article “Statute

Interpretation in a Nutshell” (1938), 16 Can. BarRev. 1, at p. 6, “words, like people, take their colour from their surroundings”. This being the case, where the provision underconsideration is found in

an Act that is itself a component of a larger statutory scheme, the surroundings that colour the words and thescheme of the Act are more expansive. In such an instance, the application of Driedger’s principle gives rise to what was described in R.v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, 2001 SCC 56, at para. 52, as “the principle of

interpretation that presumes a harmony,coherence, and consistency between statutes dealing with the same subject matter”. (See also Stoddard v. Watson, (SCC), [1993] 2 S.C.R. 1069, at p. 1079; Pointe-Claire (City) v. Quebec (Labour Court), (SCC), [1997] 1 S.C.R. 1015,at para. 61, per Lamer C.J.) [28] Other principles of

interpretation — such as the strict construction of penal statutes and the “Charter values” presumption —only receive application where there is ambiguity as to the meaning of a provision. (On strict construction, see: Marcotte v. DeputyAttorney General for Canada, (SCC), [1976] 1 S.C.R. 108, at p. 115, per Dickson J. (as he then was); R. v.Goulis (1981), (ON CA), 33 O.R. (2d) 55 (C.A.), at pp. 59-60; R. v. Hasselwander, (SCC), [1993] 2S.C.R. 398, at p. 413; R. v. Russell, [2001] 2 S.C.R. 804, 2001 SCC 53, at para. 46.

I shall discuss the “Charter values” principle later inthese reasons.) [29] What, then, in law is an ambiguity? To answer, an ambiguity must be “real” (Marcotte, supra, at p. 115). The words of theprovision must be “reasonably capable of more than one meaning” (Westminster Bank Ltd. v. Zang, [1966] A.C. 182 (H.L.), atp. 222, per Lord Reid). By necessity, however, one must consider the “entire context” of a provision before one can determine if it isreasonably capable of multiple

interpretations. In this regard, Major J.’s statement in CanadianOxy Chemicals Ltd. v. Canada (AttorneyGeneral), (SCC), [1999] 1 S.C.R. 743, at para. 14, is apposite: “It is only when genuine ambiguity arises between twoor more plausible readings, each equally in accordance with the intentions of the statute, that the courts need to resort to externalinterpretive aids”, to which I would add, “including other principles of

interpretation”.

[30] For this reason, ambiguity cannot reside in the mere fact that several courts -- or, for that matter, several doctrinal writers -- have come to differing conclusions on the

interpretation of a given provision. Just as it would be improper for one to engage in a preliminary tallying of the number of decisions supporting competing

interpretations and then apply that which receives the “higher score”, it is not appropriate to take as one’s starting point the premise that differing

interpretations reveal an ambiguity. It is necessary, in every case, for the court charged with interpreting a provision to undertake the contextual and purposive approach set out by Driedger, and thereafter to determine if “the words are ambiguous enough to induce two people to spend good money in backing two opposing views as to their meaning” (Willis, supra , at pp. 4-5). [Iacobucci J.’s emphasis.] Position of the Appellants Separating the Roles of the Minister and the GIC [ 34 ] In the Act , the GIC is granted a legislative role to establish rules of general application.

The appellants argue that the GIC’s role is to establish a framework of behaviour as towards the proper management and control of seacoast and inland fisheries. Those powers have been used, for example, to outline who may catch fish, what fish may be caught, and when, where, and how they are to be caught. [ 35 ] The appellants contend that the Minister’s role is different from that of the GIC, and is instead akin to a steward responsible for making day-to-day decisions and administering programs focused on research conservation, conservation, and environmental protection.

Moreover, the Minister regulates individual access to fisheries and balances competing rights and interests. [ 36 ] The appellants argue that, through the licensing power couched in s. 7 of the Act , the Minister has created a complex licensing scheme to regulate the activities of those licensed thereunder. The Act also contains express provisions respecting remedial action and enforcement. The Minister is entitled to cancel or suspend licences in the event that its provisions have not been followed and no proceedings under the Act have been commenced ( s. 9 ).

The appellants argue this licensing power in the Act has been “expressly contemplated by Parliament, who in turn has expressly established a system to address noncompliance with that scheme”. [ 37 ] On the basis of the foregoing, the appellants seek to establish that there is a distinction to be made between the contravention of a licence, which, they say, should be addressed in a purely administrative capacity, and a contravention of the Act or the FGRs , which they acknowledge are offences to be prosecuted.

They suggest that the former administrative decisions are discretionary and individual in nature, call for an examination of an individual's personal circumstances prior to a judgement call, and require remediation based on expertise. In contrast, breaches of rules of general application, they argue, are deserving of criminal sanction.

In other words, licensing conditions are not inherently “criminal”. [ 38 ] In consequence, the question becomes whether the GIC through s. 43(1) of the Act , has the jurisdiction to break down the distinction between the two powers and effectively reorganize the regulatory scheme established by Parliament as the appellants allege it has done through the promulgation of s. 22(7) of the FGRs . Proposed Errors [ 39 ] The appellants argue that the trial judge erred in finding s. 22(7) was intra vires based on s. 43(1)(a). The appellants concede that s. 43(1)(

a) conveys a broad power but, nonetheless, that the scope of that power is not unlimited. They suggest that it is not open to the GIC to upset the management regime created by Parliament and the Act , nor to sub-delegate to the Minister powers to legislate standards of behaviour subject to criminal sanction. [ 40 ] The argument of the appellants turns on an

interpretation of s. 43(1)(

a) which empowers the GIC to make regulations respecting “proper management and control” of the fishery. The appellants consider the French language version of the act, which provides: 43

(1) Le gouverneur en conseil peut prendre des règlements d’application de la présente loi, notamment : (

a) concernant la gestion et la surveillance judicieuses des pêches en eaux côtières et internes, notamment à des fins sociales, économiques et culturelles; [ 41 ] The appellants do not contest that the translation of “gestion” means management, but they argue that the translation of “surveillance judicieuses” does not mean control, but rather means careful or sound monitoring. They say that this careful or sound monitoring are tightly limited to an object: the fishery. On this basis, they argue that the proper

interpretation of s. 43(1) (

a) of the Act is to permit regulations that enable the fishery to be directed, controlled, and overseen. They suggest that this

interpretation does no lend to the very broad powers that were found to exist in Munro . [ 42 ] Judge Gulbransen considered this argument in R. v. Murray , 2005 BCPC 511 , which was relied on—and according to the appellants produced an error—in Munro . In Murray , Gulbransen J. considered s. 22(7) of the FGRs and found that s. 43(1) (

a) of the Act contemplated regulations which “exercise power over a subject” and that s. 22(7) was not ultra vires of the powers delegated to the GIC: at paras. 22–27. [ 43 ] The appellants argue that the error in the analysis in Murray , however, was that Gulbransen J. held that mandating compliance with the licence is essential to the operation of a licensing scheme, and thereby an exercise of control over the fishery.

The appellants argue that Gulbransen J. erred because the requirement to comply with the licence is already implicit in a licensing; it would be redundant, they argue, to mandate compliance through operation of a separate provision. Optional compliance with licences would render such a system completely meaningless and Parliament could not have been taken to have created such an absurd result.

[44] The appellants argue that the only purpose of s. 22(7), consequently, must be to turn an administrative matter—to be regulated bythe Minister—into something to be punished by criminal law. In other words, they say that this would effectively constitute a re-writingof s. 78 of the Act to apply explicitly in respect of licensing conditions and, thus, would create a new enforcement mechanism by theimposition of a new penalty not contemplated therein. [45] The appellants acknowledge that the GIC has clearly been delegated the power to establish the behaviour which is the subject ofcriminal sanction.

They say that the GIC has not, however, been delegated the power to create new classes of penalties to enforcebehaviour already left to the Minister to regulate on an administrative basis. On this basis, the appellants argue that s. 22(7) sub-delegatesthe power conferred on the GIC to set standards of behaviour which may be enforced by criminal sanction.

Sub-delegation, they say,must be made on the basis of clear and unambiguous language and that is not the case with s. 43 of the Act. [46] Consequently, the appellants submit that the trial judge was in error in finding that s. 22(7) was intra vires the powers delegatedto the GIC.

Section 9 of the Act [47] The appellants contend that Parliament intended that the only consequence for non-compliance with a licence condition would besuspension or cancellation of the licence, and that the Act does not permit further regulation of licence infractions. They rely on s. 9 ofthe Act which, at the applicable time, read: 9 The Minister may suspend or cancel any lease or licence issued under the authority of this Act, if (

a) the Minister has ascertained that the operations under the lease or licence were not conducted in conformity with its provisions; and (

b) no proceedings under this Act have been commenced with respect to the operations under the lease or licence. [48] The appellants refer to Murray, where they argue that Gulbransen J. held that this

section demonstrated that the Act doescontemplate proceedings for the breach of licence conditions in addition to suspension or cancellation of a licence. In Murray,Gulbransen J. relied on the following

interpretation of s. 9: [34]

Section 9(

a) permits the Minister to suspend or cancel a licence if the operations under the licence were “…not conducted inaccordance with its provisions.” The proceedings referred to in s. 9(

b) respecting “operations under the lease or licence” must bereferring to “operations” referred to in s. 9(

a) which were not conducted in conformity with the provisions of the lease or licence. […] [49] The appellants say that, as they suggest is the case with s. 79.1 of the Act, s. 9 “simply gives jurisdiction” to the applicable actor“to determine the fate of a licence holder’s licence when they are accused of an offence under the Act or Regulations” (emphasis inoriginal). It does not, in their view, refer to proceedings specific to licensed activities and instead refences generally to other offences.

Analysis Distinction between the Roles of the Minister and the GIC [50] It is suggested by the Crown that the distinction the appellants have attempted to establish between the roles of the Minister andthe GIC does not consider the purpose and language of the Act, and that, overall, it is regulatory in nature. I agree. The Crown reliesupon R. v. Sault Ste.

Marie, [1978] 2 S.C.R. 1299, at 1302–1303, : In the present appeal, the Court is concerned with offences variously referred to as “statutory”, “public welfare”, “regulatory”, “absoluteliability”, or “strict responsibility”, which are not criminal in any real sense, but are prohibited in the public interest : Sherras v. DeRutzen [[1805], 1 Q.B. 918 (D.C.)].

Although enforced as penal laws through the utilization of the machinery of the criminal law, theoffences are in substance of a civil nature and might well be regarded as a branch of administrative law to which traditional principles ofcriminal law have but limited application. They relate to such everyday matters as traffic infractions, sales of impure food, violations ofliquor laws, and the like. In this appeal we are concerned with pollution. [51] As the Crown has put forward, both areas dichotomized by the appellants are covered and actually jointly managed by theMinister and GIC.

For example, in s. 4.1(1) of the Act, the Minister can enter into agreement for facilitating cooperation between theparties. In s. 4.1(3), however, the GIC can also regulate that activity so there is parallel ability. Similar provisions are found in ss. 4.4(1)and (2).

Section 4.4(1) allows the Minister to implement programs and make grants and contributions and s. 4.4(2) allows the GIC toregulate on that conduct. [52] Moreover, the Minister and the GIC perform shared functions in giving effect to the licensing regime. In s. 7 of the Act, theMinister is authorized to issue licences for fishing and in s. 9, the Minister is authorized to revoke licences under specified conditions.Turning to s. 43(1), the various subsection set out above include very broad language for the proper management and control of thefisheries. Section 43(1)(b), for example, permits that regulations may be made respecting conservation and protection of fish, ands. 43(1)(

g) permits that regulations may be made respecting the terms and conditions under which a licence and lease may be issued. Tothis extent, while the Minister may issue a licence, the GIC is often in the position of a regulator who can limit or delineate the subjectmatter and terms under which the Minister may complete their function. [53] Counsel also referred me to R. v. Cox, 2003 NLSCTD 56, the court recognized that, due to the size and complexity of theCanada's fishing and licensing regimes, the administration of those regimes cannot be carried out exclusively by the actors contemplatedin these Reasons:

[69] […] Handrigan, P.C.J. was correct in his conclusion. He was aware of the pragmatic and functional approach as set out in the"Brown and Evans" text above. At paragraph 37: It is entirely impracticable to suggest that the Governor in Council (or the Minister of Fisheries, for that matter!) could have the level ofinvolvement in the many fisheries that are operated in Canada to exercise the powers that are conferred in

Section 43 of the Act orSection 22 of the Regulations. It is implied by the necessity created by the practical problems that this would present that a delegate canexercise some of the authority conferred on those that are in these offices. And further at paragraph 40: It is no perversion of the logic in this passage to extend the rationale adopted by Justice MacKinnon to the next level of delegation, fromthe Governor in Council to the Minister, nor for that matter, from the Minister to his subordinates.

The actual operational andadministrative control of fisheries must of necessity be placed in the hands of the operatives of the controlling government department. Itshould not come as any surprise when the representatives of the Minister are clothed with the authority to do this work. [54] The fact that licences are issued by the Minister does not support a conclusion that licensing falls outside the regular regulatoryregime. The Regulatory Regime [55] The purpose of the Act is clearly set out in applicable case law, despite having not been set out in the Act at the time of theoffence. In R. v.

Ulybel Enterprises Ltd., 2001 SCC 56, the Supreme Court of Canada adopted the language of the Nova Scotia Court ofAppeal in R. v. Savory (1992), (NS CA), 108 N.S.R. (2d) 245 in describing the leading object of the Act as follows: [24] […] The Act and the Regulations have been passed for the purpose of regulating the fishery; regulatory legislation should be given a liberalinterpretation. A major objective of the Act and the Regulations is to properly manage and control the commercial fishery. [56] The regulatory power held by the GIC as a matter of s. 43(1) of the Act is expansive.

While certain classes of these regulationsare enumerated, it is express that this enumeration does not restrict the generality of the foregoing (i.e., the creation of “regulations forcarrying out the purposes and provisions of” the Act). The question of whether regulating compliance with licence conditions falls withinthe subject matter of s. 43(1) of the Act must be considered contextually and purposively in accordance with Bell. [57] Regulating conduct in the fisheries is critical to their overall control. All fishing activities take place under the authority of alicence in British Columbia. In R. v.

Nikal, (SCC), 1996 1 S.C.R. 1013, the Supreme Court of Canada described thelicensing scheme in the Act context as “essential foundation of a conservation program”: at para. 94. The Supreme Court of Canadafurther held: [102] Indeed as a general rule it can be said that the simple requirement of a licence will seldom constitute a prima facie infringementof the s. 35 aboriginal right to fish. If the salmon fishery is to survive, there must be some control exercised by a central authority.

It isthe federal government which will be required to manage the fishery and see to the improvement and the increase of the stock of thatfishery. It is for the federal government to ensure that all users who are entitled to partake of the salmon harvest have the opportunity toobtain an allotment pursuant to the scheme of priorities set out in Sparrow. Any system of control must commence with a licensingscheme. It is through the issuing of licences to the various type of users that the department will be able to know at least the numbers offishers and the categories of those that are fishing.

This will provide the first rough basis from which the department can make theestimates necessary to manage the fishery resource. The licence is the essential first step in the preservation and management of thisfragile resource. This need to manage the stock goes far further than simply preventing the elimination of the salmon. Managementimports a duty to maintain and increase reasonably the resource. The licence assists this duty by providing a means of identification thathelps to ensure that only those permitted to do so are fishing in the authorized areas.

It serves as a means of control by eliminating thosethat do not have a licence from fishing. [58] Similarly, in R. v. Ivy Fisheries Ltd., 2006 NSPC 5, the Nova Scotia Provincial Court held that regulations requiring compliancewith licence conditions fall within the purpose of the Act, and that, more specifically, licence violations fell within the authority of theGIC to regulate. The Court in Ivy Fisheries Ltd. held: [27] I agree with the Crown that the whole tenor and intent of the Act is to create an enforceable regime for the management of thefisheries.

To hold that Parliament intended to set up a scheme for licencing and controlling fishing without a mechanism for meaningfulenforcement, other than licence suspensions, would be to make a laughing-stock of Parliament. The obvious intent of s. 78 was toprovide for enforcement of all regulations properly enacted under the authority of the Act. […] [59] The approach from Ivy Fisheries Ltd. was adopted in Murray by Gulbransen J., and was incorporated into the reasoning inMunro by the trial judge. The applicable passage from Murray is as follows: [35] The introductory words of

section 43 of the Act clearly provide a very broad scope for the making of regulations.

Section 43(a)also is of broad scope. The Act does not make violation of licence terms an offence but does contemplate proceedings other thansuspension and cancellation. A power to make regulations for the "proper management and control of a fishery" plainly includes themaking of a regulation that requires that licence holders comply with its conditions. Control over a fishery where licensing is central toits regulation and management, also includes exercising authority over the performance by licence holders of the conditions attached to alicence. [60] Licensing is central to the Act.

Most fishing activity takes place under the authority of a licence and is consequently limited bylicence conditions. The regulation of licences is essential to the control, preservation, and management of the fisheries. In Munro, the

court held: [53] […] The provision set out at s. 22(7) of the Fisheries (General) Regulations is not ultra vires of Parliament. The FisheriesAct authorizes the Minister to issue fishing licences. The Fisheries Act authorizes the Governor in Council to make regulations regardingfishing licence conditions that the Minister can issue.

The Fisheries Act authorizes the Governor in Council to make regulations for theproper management and control of the fisheries, including imposing obligations on fishers that could result in penal liability if fishinglicence conditions are not followed. [61] I see no reason to depart from this reasoning. As I have found above, the compartments that the appellants say separate the rolesof the Minister and the GIC are not water-tight. By authorizing the GIC to regulate on control, protection, conservation, and managementof the fishery, the Act authorizes the GIC to regulate on licence compliance.

I am not satisfied that a different result would be reachedupon the appellants proposed

interpretation of the French version of the Act. [62] Moreover, I am not satisfied that Parliament intended that the only consequence for non-compliance with a licence conditionwould be suspension or cancellation of the licence as a matter of the operation of s. 9 of the Act. I reach this conclusion insofar as theMinister and GIC are not dichotomous in the manner contemplated by the appellants and in light of the applied purpose of the statutoryregime.

Sub-Delegation [63] The appellants suggest that by promulgating s. 22(7) of the FGRs, the GIC sub-delegated to the Minister the power to setstandards of behaviour which may be enforced by criminal sanction. The Crown responds that the correct result was reached in Munro inrejecting the contention that s. 22(7) of the FGRs constitutes sub-delegation.

In the alternative, if this Court finds that there was in factsub-delegation in the instant circumstances, the Crown argues that s. 43 of the Act in fact authorizes sub-delegation. [64] For the reasons that follow, I agree with the reasons on this point in Munro that s. 22(7) does not constitute a sub-delegation ofpower. Even if there were sub-delegation, I would not accede to the appellant’s contention that that sub-delegation was unlawful. 1.

Licence Conditions as Elements of the Offence [65] The Crown submits that the trial judge was correct in finding that the provision does not amount to a sub-delegation, insofar aslicensing conditions are not statutory instruments and are instead matters to be proven at trial. I agree. [66] An analogous issue was considered by the Supreme Court of Canada in R. v.

Furtney, [1991] 3 S.C.R. 89, .There, the appellants argued that the terms and conditions of lottery licences were not published or gazetted and that, inconsequence,convictions for failing to comply with the conditions violated their rights in Canadian Charter of Rights and Freedoms,

Part 1 of theConstitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. [67] In Furtney, the Supreme Court of Canada found that, given the variance of difference licences and conditions, the argument thatpublication was required offended common sense. Instead, the Court found that the offensive violating the licence and conditions are, infact, elements of that offence and must be proven: [47] In argument reference was made to the provisions of the Statutory Instruments Act, R.S.C., 1985, c. S-22, which by ss. 2(1)(b)and 11(2) forbids conviction for contravention of a regulation or statutory instrument not gazetted.

There is an order-in-council, notpublished as a statutory instrument, setting out some terms and conditions (including the one of which the appellants are said to havecounselled a breach). However, the offence charged relates to the terms and conditions of specified licences which is an allegation thatthose terms and conditions are an express provision of the licences, a matter to be proven, rather than an allegation that the terms andconditions are imposed by law.

The terms and conditions of individual licences are not within the definition of statutory instruments. [48] I would dismiss the appeal. [68] I am satisfied that Furtney applies in the context of the Act. In R. v. Joe, 2000 BCSC 1100, a fisherman was charged with failingto comply with the condition of a licence under an identical provision to s. 22(7) of the FGRs made under the Aboriginal CommunalFishing Licence Regulations, SOR/93-332. [69] In Joe, the court below had accepted the argument that the licence conditions were regulations and thus needed to be published orgazetted.

On appeal, however, Justice Hutchison found that licences issued under the Aboriginal Communal Fishing Licence Regulationswere “not a statutory instrument within the meaning of the Statutory Instruments Act, [R.S.C. 1985, c. S-22]” and that he did “not findthat the licence issued was a regulation requiring notice to those persons likely to be affected”: Joe at paras. 9 and 19. 2. Sub-Delegation [70] Even if there was sub-delegation in this matter, I would not find that it was unlawful.

In Re Peralta and the Queen (1985), 16D.L.R. (4th) 259, (O.N.C.A.), aff’d (SCC), [1988] 2 S.C.R. 1045 [Peralta], the Ontario Court ofAppeal found that sub-delegation under a provision equivalent to s. 43(1) of the Act lawful. Associate Chief Justice MacKinnon set out: [37] The first particular power given under the regulation-making power of the Governor in Council is "for the proper managementand control of the sea coast and inland fisheries" (para. 34(a)). This states the general purpose of the entire

section and a wide authorityis conferred in the following paragraphs by the use, as noted earlier, of the word "respecting", "embracing any regulation for any purposecoming within the defined subject" matter: Driedger, The Composition of Legislation, 2nd ed. (1976), at p. 192. Driedger (at p. 193)points out that the distinction between purposes or subjects on the one hand and powers on the other is relevant to subdelegation:

For example, if a Minister had powers to make regulations respecting tariffs and tolls he could authorize some other person to fix a tariffor toll; such a regulation would clearly be one respecting tariffs and tolls.

But if the Minister's authority is to makeregulations 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. [38] Looking at the nature and purpose of the statute, and the use of the word "respecting" ("concernant"), I am persuaded thatsubdelegation was intended by necessary implication, and the prima facie rule of construction delegatus non potest delegare gives wayto the intent of the legislation. ... the courts will readily mould the literal words of a statute to such a construction as will best achieve its object; because they will,recognizing the facts of modem government, readily imply in an authority such powers as it would normally be expected to possess;because the presumption of deliberate selection, strong when applied to the case of a principal who appoints an agent or a testator whoselects a trustee, wears thin when applied to a statute which authorizes some governmental authority, sometimes with a fictitious namesuch as "Governor-in-Council" or "Minister of Justice", to exercise a discretion which everyone, even the legislature, knows will in factbe exercised by an unknown underling in the employ of the authority, the prima facie rule of delegatus non potest delegare will readilygive way, like the principles on which it rests, to slight indications of a contrary intent. [71] In Furtney, the Supreme Court of Canada considered certain gaming offences that were contrary to provisions in the CriminalCode, R.S.C. 1985, c.

C-46. Under the applicable regime, gaming and betting activities were prohibited, however, s. 207 of the CriminalCode exempted certain organizations through a licensing regime. The applicable licences carried terms and conditions as set out by theLieutenant Governor of a province and were issued by that Lieutenant Governor. [72] The Supreme Court of Canada rejected the appellant’s argument that the provisions relating to licence exemptions amounted tounlawful delegation of criminal law power and were, thus, ultra vires the Criminal Code.

Instead, in Furtney, the Supreme Court ofCanada affirmed the reasoning from Peralta that the prohibition against delegation is limited to delegation to a legislature, but thatParliament may nonetheless delegate legislative authority to other bodies or agencies: [34] The use of the word "respecting" allows for a delegation of the administration of the regulations. Counsel for the appellantMinister argued that the wisdom and common sense of this

interpretation is shown by the fact that it is the provincial ministers, familiarwith the multiplicity of situations and problems in their own province, to whom these powers are delegated. However, I believe Mr. Scottto be right when he argued that we must find the right to subdelegate from the wording of the legislation itself and not from the mannerin which the power is exercised. In the Act there is no indication of the person or body to whom the Governor in Council may delegate,and the fact that it has been to provincial ministers cannot by itself establish the right.

However, the exercise of the right may beconsidered to show that interpreting the legislation as conferring the power of subdelegation does not lead to an absurdity. [73] In Jackson v. Ontario (Minister of Natural Resources), 2009 ONCA 846, the appellants argued the Ontario Fishery Regulations,2007, SOR/2007-237, were ultra vires to the extent that they authorized Ontario’s Minister of Natural Resources to impose quotas inrespect of licences.

The matter concerned s. 43 of the Act and provisions of the Ontario Fishery Regulations, 2007 passed pursuant to theauthority in s. 43 of the Act. [74] The appellants in Jackson argued that the applicable provisions amounted to improper sub-delegation.

They suggested that theAct did not specifically authorize the GIC to sub-delegate to a provincial minister and that, in substance, what was delegated was itslegislative power rather than administrative power. [75] The Ontario Court of Appeal disagreed with the Jackson appellants and relied on Furtney in considering the principles relevant tolawful delegation as follows: [26] Under our constitutional system, Parliament cannot delegate its legislative powers to a provincial legislature. Parliament can,however, delegate its legislative powers to another body: see R. v. Furtney, (SCC), [1991], 3 S.C.R. 89 at 104.

Here,Parliament has not delegated its legislative power in relation to inland fisheries to the provincial legislature. Instead, it has delegated itslegislative power over fisheries to another body, the Governor in Council, which, in turn, has sub-delegated this power to the OntarioMinister of Natural Resources. Thus, the delegation at issue here is not constitutionally impermissible. The narrow question raised bythe appeal is whether the delegation is invalid because it was not carried out properly. [76] I note that an argument similar to that advanced by the instant appellants was advanced in Cox.

The appellants there argued thatthe GIC had unlawfully sub-delegated its function of imposing licence conditions in s. 22(1) of the FGRs. Contrary to the position of theappellants, the court discussed lawfulness of sub-delegation: Cox at para. 69 (excerpted above). [77] More broadly, the Crown argues that explicit authorization of sub-delegation is not necessary; rather, for sub-delegation to belawful, it need only be consistent with Parliament’s intent.

That, under s. 43 of the Act, the Crown proceeds, the GIC may makeregulations “respecting” a range of subjects indicates a board grant of power, and incumbent sub-delegation authority. Moreover, theCrown suggests that s. 43(1) authorizes the GIC to prescribe the powers and duties of persons employed in the administration andenforcement of the Act, which, at least implicitly, indicates that the GIC can make regulations delegating its powers and duties. [78] The Crown’s submission corresponds with the Federal Court’s decision in Antonsen v.

Canada (Attorney General), (FC), [1995] 2 F.C. 272: [45] In my view the conditions which are attached to the licences in this case fit within the Peralta decision. Counsel for the plaintiffs'argument amounts to a requirement that the Minister deal with each licence individually and designate specific landing locations for eachvessel different from the specific landing locations for other vessels. It is argued that this would be an administrative decision andproperly the subject of subdelegation. I am not persuaded that such a degree of detail is required. The licence conditions relate to only thehake fishery.

The licence holders are obliged to choose between landing options and each set of conditions relates to a subset of hakelicence holders. The licence holders apply on an individual basis for an exemption which allows them to deliver fish to foreign licensedprocessing vessels. The power granted to the Governor in Council is framed as a power "respecting" the terms and conditions of a

licence. I am persuaded that the landing conditions on their face are a valid exercise of the authority which has been subdelegated to theMinister. [79] The appellant cites authority indicating that “if Parliament intends to confer upon a subordinate body the right to enact penalregulations, the legislation purporting so to do must say so explicitly and with absolute clarity”: Keough v. Memorial University ofNewfoundland (1980), 26 Nfld. & P.E.I.R. 386, [1980] N.J. No. 185 (S.C.T.D.) as cited in Haghdust v.

British Columbia LotteryCorporation, 2014 BCSC 1327 at para. 109. [80] Keough, however, is not a case about the sub-delegation of powers within a broad and purposive statutory scheme; rather itconcerned whether regulations of a university board involving parking penalties were ultra vires its authorizing legislation.

Moreover, inlight of Furtney and the case law that has followed, I am not satisfied that this prospect should have any bearing on the outcome of thismatter. [81] The Crown further argues that it is of no import whether, if sub-delegation has occurred, that delegation is characterized asadministrative, legislative, or regulatory. I agree. This was discussed in Jackson where the Ontario Court of Appeal held: [46] Finally, the appellants contend that the delegation to the provincial Minister is invalid because what has been delegated islegislative power, not administrative power.

The contention appears to be that the Governor in Council can validly delegate onlyadministrative powers. [47] Respectfully, this contention is misconceived. For the purpose of determining whether a delegation is valid, the distinctionbetween legislative and administrative power is irrelevant. The delegation of any kind of power, legislative or administrative, toParliament or a provincial legislature, is not permitted.

The delegation of any kind of power, even a legislative power, to an official or toa body other than Parliament or a legislature, is quite permissible: see e.g. [Reference Re: Regulations in Relation to] Chemicals, [ (SCC), [1943] S.C.R. 1] [Chemicals Reference]; R. v. Furtney at para. 33; and Hogg, Constitutional Law of Canada, 5th ed.supplemented (Scarborough: Thomson Carswell, 2007) at 14-22. [48] Admittedly, para. 63 of the judgment of this court in Peralta suggests that legislative power cannot be delegated.

That suggestionis inconsistent with principles of delegation and with the Supreme Court of Canada's jurisprudence. Thus, it is unnecessary tocharacterize the delegation of the provincial Minister. However characterized, the Governor in Council's delegation of its powers toOntario's Minister of Natural Resources is valid. [82] I am satisfied that not sub-delegation occurred in the instant circumstances, and even if it did, it was not unlawful.

Sentence Appeal [83] The appellants argued that, if I did not accede to their primary ground of appeal concerning s. 22(7) of the FGRs, I should varythe sentences imposed in both proceedings by setting aside all orders made pursuant to s. 79 of the Act, which reads as follows: Additional fine 79 Where a person is convicted of an offence under this Act and the court is satisfied that as a result of committing the offence theperson acquired monetary benefits or monetary benefits accrued to the person, the court may, notwithstanding the maximum amount ofany fine that may otherwise be imposed under this Act, order the person to pay an additional fine in an amount equal to the court’sfinding of the amount of those monetary benefits. [84] The appellants argue that the court below, in each of the sentencing decisions, misinterpreted the term “as a result” as onlyrequiring that the offence “be connected to” the offence.

They go on that the applicable offences failures to exercise due diligence thatcannot support the causative link required by the term “as a result.” [85] The appellants cited no authority to support the rigour they propose in respect of their

interpretation of the s. 79 of the Act. Thissection grants a discretionary authority to the presiding judge to impose additional fines. In the instant circumstances, it was found thatfinancial benefits flowed to the appellants as a matter of their negligence and lack of due diligence, and I would not disturb this result. conclusion [86] In s. 43(1) of the Act, Parliament granted to the GIC broad powers to regulate towards the purpose of the Act. The regulation oflicensing regimes is critical to this purpose, and, to be specific, to effective conservation the fishery context.

As part of regulating in thisspace, the GIC has required compliance with conditions of licence. Moreover, the regulatory roles of the Minster and the GIC in thelicensing space are shared. Broadly, their roles are complementary, not exclusive. [87] The promulgation of s. 22(7) of the FGRs was a lawful exercise of the power delegated by Parliament to the GIC. Moreover, Ihave found that the licences and their conditions are not statutory instruments, and, in relation to these, no sub-delegation has occurred.These findings are largely for the decisions of the court below, namely, Munro and 605463 B.C.

Ltd., where the operation of theapplicable scheme was succinctly summarized as follows (Munro at para. 53): [53] […] The Fisheries Act authorizes the Minister to issue fishing licences. The Fisheries Act authorizes the Governor in Council tomake regulations regarding fishing licence conditions that the Minister can issue. The Fisheries Act authorizes the Governor in Councilto make regulations for the proper management and control of the fisheries, including imposing obligations on fishers that could result inpenal liability if fishing licence conditions are not followed.

[ 88 ] Both grounds of appeal are dismissed. “Maisonville J.”