REGS Committee Report

March 23, 2000

The Standing Joint Committee for the Scrutiny of Regulations has the honour to present its

Pursuant to its Order of Reference, section 19 of the Statutory Instruments Act, R.S.C. 1985, c. S-22, the Joint Committee draws the attention of the Houses to section 36(2) of the Ontario Fishery Regulations, 1989 as enacted by SOR/89-93.

Section 36(2) of the Regulations provides that:

36.(2) No holder of a commercial fishing licence shall violate any

of the terms or conditions of the licence.

This provision was created with a view to making a contravention of a term or condition of a licence an offence under the Fisheries Act, R.S.C. 1985, c. F-14. Section 78 of the Act provides as follows:

A term or condition of a licence is not a provision of the Act or the regulations, and the violation of such a term or condition does not constitute a contravention of the Act or regulations within the meaning of section 78 of the Act. The enactment of a general prohibition against contravention of a term or condition of a licence as part of the Ontario Fishery Regulations, 1989 is designed to attract the application of section 78 of the Act. While a person contravening a licence term or condition is not liable to the penalties set out in the Fisheries Act, following the enactment of section 36(2) of the Regulations, that person would be liable for the breach of section 36(2) of the Regulations. Section 36(2) then, is intended merely to bridge the gap between a contravention of a term or condition of licence and the penalties provided for in the statute. In effect, this regulatory provision is intended to do indirectly what could not be done directly, namely to impose a criminal liability for the breach of a term or condition of a licence.

It is beyond dispute that Parliament must authorize regulations imposing sanctions or creating offence either expressly or by necessary implication. Nowhere in the Fisheries Act is the making of regulations creating offences expressly authorized, nor can the existence of such a power be said to be necessarily implied. In fact the Act implies quite the opposite. Firstly, the acts which will constitute offences under the Fisheries Act are set out in the Act itself and it is to be presumed that if Parliament had wished to empower its delegate to add further offences to these it would have provided so explicitly. Secondly, the Act confers a power to make regulations providing for the suspension and cancellation of licences, a clear indication as to the sanctions that Parliament intended would follow a contravention of a term or condition of licence.

Contrary to its initial position, the Department of Fisheries and Oceans has now accepted that the Fisheries Act does not authorize the Governor in Council to create offences by regulation. Nevertheless, the Minister of Fisheries and Oceans has asserted that section 36(2) is valid. Although the Department of Fisheries and Oceans itself earlier characterized section 36(2) as creating "the offence of violating the conditions set out in a licence", it is now said that this provision does not create an offence, "but merely impose(s) a standard of conduct, breaches of which may be prosecuted under section 78 of the Act." At another time, the provision has been characterized as establishing a "prohibition". The "standard of conduct" imposed by section 36(2) of the Regulations is the requirement to comply with the terms and conditions of a licence. In turn, section 78 of the Act makes it an offence to contravene the Regulations. Technically then, the offence will be characterized as contravening section 78 of the Act, rather than as contravening the terms or conditions of a licence.

The Committee considers that the argument that section 36(2) of the Regulations simply imposes a "standard of conduct" is best characterized as disingenuous. Were it not for section 36(2) of the Regulations, a person contravening the terms or conditions of a licence would not be subject to criminal prosecution. Moreover, the actual requirements that must be complied with will be found, not in the Regulations, but in the terms and conditions of the licence. The only purpose of section 36(2) of the Regulations is to make the non-observance of the terms and conditions of a licence, which are not legislative requirements, punishable as if they were. To ignore this is to ignore the clear intent and effect of the provision.

Of course it is also the case that no matter how one characterizes section 36(2) of the Regulations, authority for the enactment of that prohibition must still be found in section 43 of the Fisheries Act. This has been explicitly recognized by the Minister. The enactment by a delegate of a prohibition designed to make the contravention of terms and conditions imposed in the exercise of an administrative power subject the same penalties as Parliament decided should apply to rules enacted in the exercise of a legislative power represents the exercise of a substantive law-making power for which clear and precise enabling authority must be shown to exist. Such authority is entirely lacking in any of the provisions of section 43 of the Act relied upon by the Minister. The powers granted to the Governor in Council in relation to licences are the power to make regulations "respecting the issue, suspension and cancellation of licences" (s.43(f )) and "respecting the terms and conditions under which a licence may be issued" (s.43(g)). While, at first glance, section 43(g) might appear relevant, its French version makes it clear that this provision concerns the establishment of the licence conditions themselves. Section 36(2), however, is not a licence condition but a regulatory prohibition. Finally, section 43(a) has also been invoked by the Minister. This enabling clause empowers the Governor in Council to make regulations "for the proper management and control of the sea-coast and inland fisheries". It is the view of the Committee that such a general regulation-making power lacks the specificity required to support a provision such as we are dealing with here.

The Minister’s position appears to rest on the fundamental misapprehension that the power to make regulations for the proper management and control of the sea-coast and inland fisheries (s.43(a)) respecting the issue, suspension and cancellation of licences and leases (s.43(f)) and respecting the terms and conditions under which a licence and lease may be issued (s.43(g)) must necessarily include the power to punish contraventions of the terms and conditions of licences as offences under the Act. For the Minister, there can be no imposition of a "standard of conduct" unless the sanction for contravening the standard is a fine or imprisonment. But is not the conferral of a power to make regulations providing for the suspension and cancellation of licences a clear indication as to the sanctions which Parliament intended would adhere to breaches of the terms and conditions of licences? The Department of Fisheries and Oceans earlier argued that the power to make regulations respecting the cancellation and suspension of licences "would not negate the offence and punishment provisions set out in the Act. A person who has contravened a condition of his licence may keep the licence and pay a penalty for the violation." Yet why would Parliament expressly provide for suspension and cancellation of licences unless it considered that these were the appropriate sanctions for failure to comply with the terms and conditions of a licence? Why did Parliament not itself provide that every contravention of the terms and conditions of a licence constitutes an offence? Section 78 makes it an offence to contravene the Act or the regulations. It says nothing whatsoever about the terms and conditions of a licence. It is submitted that this is because a licence is an administrative document, and those contravening such documents are usually subject to administrative sanctions, such as suspension and cancellation. Absent a clear legislative authorization, it is inappropriate to treat contraventions of administrative documents as offences.

The Minister of Fisheries and Oceans has also sought to rely on section 9 of the Act, which prevents the Minister from suspending or cancelling a licence if a prosecution has been commenced with respect to the operations under the lease or licence. This is said to indicate Parliament’s intent that failure to comply with the terms or conditions of a licence could be prosecuted as an offence under the Act. In fact, it indicates quite the opposite. Clearly, there will be some circumstances in which an action constituting a violation of the terms and conditions of a licence also constitutes an offence under the Act or the regulations. Section 9 of the Act is intended to address this situation. Section 9, however, must be read together with section 79.1 of the Act. Section 79.1 provides that where a person is convicted of an offence under the Act in respect of any matter relating to operations under a licence the court may, in addition to any punishment imposed, cancel or suspend the licence and prohibit the person to whom the licence was issued from applying for any new lease or licence during any period the court considers appropriate. Where violations of the conditions of a licence also contravene the Act or regulations, section 9 requires the Minister to choose whether to suspend or cancel the licence or to prosecute. If the latter is chosen, only the court may then impose cancellation or suspension as an additional punishment. Indeed, these mechanisms further indicate that Parliament intended that there be a distinction between violating the terms and conditions of a licence and contravening the Act or the regulations. The aim of the disputed provisions is to remove these distinctions completely.

To summarize, the purpose of section 36(2) of the Regulations is to make it an offence to contravene the terms and conditions of a licence. In section 78 of the Act, however, Parliament has already provided that only contraventions of the Act and the regulations are to constitute offences. If Parliament had wished contraventions of licence conditions to constitute offences, it would have so provided. Sections 36(1) is nothing more than an attempt to treat contraventions of licence conditions, which are administrative requirements, as if they were contraventions of legislative requirements. Regardless of whether this is characterized as creating an offence or not, the requisite clear and explicit enabling authority for such a provision cannot found in the Fisheries Act.

If the provisions in question are considered necessary for the proper management of the fisheries, Parliament should be asked to amend the Act to establish the offence of contravening the terms or conditions of a licence. A perception of necessity on the part of those charged with the administration of a statute is no substitute for proper legal authority. This is all the more so when the liberty of the subject is at stake. The central relevant fact is that in enacting section 36(2), the purpose of the Governor in Council is to make the breach of any licence term or condition punishable by fine or imprisonment. In the Fisheries Act, Parliament expressly reserved these penal sanctions for the breach of legislative requirements expressed either in the Act or in regulations made under the Act. The clear and explicit authority that would be required to support a regulation made for the purpose of expanding the application of the statutory penal provisions to requirements imposed in the exercise of an administrative power is not to be found in the Act at this time. In enacting section 36(2) of the Ontario Fishery Regulations,1989 the Governor in Council is doing indirectly that which the Fisheries Act does not authorize him to do directly, namely, extend the application of section 78 of the Act to breach of terms or conditions of a licence.

As the Committee reported to Parliament in 1987 : « The inadequacy of the present statutory framework in terms of contemporary management of our fishery resources is a matter of public knowledge. Faced with a statute that does not meet modern management requirements, the Executive sees itself forced to resort to regulatory techniques of doubtful validity in order to meet those needs. While it recognizes those difficulties, your Committee does not consider they excuse the persistent and deliberate misuse of the regulation-making powers conferred by Parliament. »

The Joint Committee reports that section 36(2) of the Ontario Fishery Regulations, 1989 is not authorized by the terms of the enabling legislation, trespasses unduly on rights and liberties, and makes an unusual and unexpected use of the powers conferred by the Fisheries Act. Additional provisions similar to section 36(2) have been enacted in the Ontario Fishery Regulations, 1989 and in other regulations made under the Fisheries Act. Your Committee’s conclusions apply equally to those provisions.

In accordance with Standing Order 109 of the House of Commons, the Joint Committee requests the government to table a comprehensive response to this Report.

A copy of the relevant Minutes of Proceedings and Evidence (Issue No. 3, Second Session, Thirty-sixth Parliament) is tabled in the House of Commons.

Respectfully submitted,

Joint Chairmen