REGS Committee Report

Section 36(2) of the Ontario Fishery Regulations, 1989 provides that:

This provision was enacted in order to make the 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 that Act provides that:

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 in the Ontario Fishery Regulations, 1989 against contravening a term or condition of a licence 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). 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, the purpose of this regulatory provision is to do indirectly what could not be done directly, namely to impose criminal liability for the breach of a term or condition of a licence.

Section 36(2) was dealt with previously by the Committee in its Second Report of the Second Session of the Thirty-sixth Parliament (Report No. 66), as well as in its Second Report of the First Session of the Thirty-eighth Parliament (Report No. 75). The Committee maintains its position that this provision not only lacks legal authority, but trespasses unduly on rights and liberties, represents an unusual and unexpected use of the enabling authority and makes the rights and liberties of the person unduly dependent on administrative discretion.

Regulations imposing sanctions or creating offences must be authorized by Parliament 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. First, 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. Second, 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.

The Department of Fisheries and Oceans accepts that the Fisheries Act does not authorize the Governor in Council to create offences by regulation. Nevertheless, it has asserted that section 36(2) is valid. Although the Department itself earlier characterized section 36(2) as creating “the offence of violating the conditions set out in a licence”, it was later 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 36(2) of the Regulations, rather than as contravening the terms or conditions of a licence.

In its earlier Reports, the Committee characterized the argument that section 36(2) of the Regulations simply imposes a “standard of conduct” 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. In this regard, it is significant that in a letter of April 14, 2005 to the Minister of Fisheries and Oceans, the Ontario Minister of Natural Resources wrote that “subsection 36(2) is the offence section under which Ontario enforces terms and conditions on […] fishing licences.” The Joint Committee continues to agree with this characterization of section 36(2).

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. 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 to 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 lacking in any of the provisions of the Act relied upon to support the validity of section 36(2).

The powers granted to the Governor in Council in relation to licences by section 43 of the Fisheries Act 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 section 36(2) of the Regulations.

It is simply not the case 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 Department of Fisheries and Oceans, 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 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, in the absence of contrary statutory provisions, those contravening such documents are subject to administrative sanctions, such as suspension and cancellation.

The Department 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 involve a contravention of 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 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 provision is to obliterate that distinction.

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, Parliament has 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 could, and no doubt would, have so enacted. Section 36(2) 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 non-compliance with certain requirements is to give rise to punishment by way of fine or imprisonment, then these requirements should be duly enacted as law, preferably by Parliament itself. If it is considered necessary to delegate the power to make regulations providing for the making of the contravention of the terms or conditions of a licence punishable by a fine or imprisonment, such a delegation should be granted in explicit terms in the enabling statute. A mere 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.

Indeed, there are a number of instances in which Parliament has enacted provisions expressly making it an offence to contravene the conditions of a permit or licence. Reference may be made by way of example to section 24(3) of the Canada National Parks Act, section 33 of the Broadcasting Act, section 110 of the Firearms Act and section 40 of the Northwest Territories Waters Act. Similar provisions can also be found in the Territorial Lands Act, as well as in several other statutes. While the Committee takes no position on whether or not it would be desirable to enact a similar provision with regard to licences issued under the Fisheries Act, these precedents clearly show the sort of enabling authority that is legally required for breaches of an administrative instrument to be made subject to criminal sanctions.

The Department has more recently sought to rely on several court decisions to support its position. The Committee has considered these decisions and has concluded that they do not dispose of the issue.

The first of these, Barnett v. Canada (Minister of Agriculture and Agri-Food) concerned the importation of alpacas into Canada from Chile. While the animals were still in quarantine in Canada it was discovered that as a result of the actions of Chilean officials, the conditions of an entry permit had not been complied with. An order for the removal of the animals from Canada was issued pursuant to provisions of the Health of Animals Act providing for the forfeiture or removal of animals imported into Canada “in contravention of this Act or the Regulations”. At trial ([1996] F.C.J. No. 946, DRS 96-16472, Court File No. T-1039-96 (unedited)), the Federal Court quashed the removal order on the grounds that the official issuing the order had fettered his discretion by failing to consider other possible courses of action in addition to forfeiture or removal, and that in any event the removal order had effectively been made, not by the official who signed it, but by another official who had no authority to make such an order. Before reaching these conclusions, however, it was necessary for the Court to first consider whether the breach of the conditions of the entry permit constituted a breach of the Act or Regulations so as to trigger the provisions of the Health of Animals Act providing for forfeiture or removal.

The trial judge began by stating the principle that “A breach of a permit condition in not automatically a breach of the Act or Regulations under which it is issued. It can however be made such by express terms of the Act or Regulation.” (Emphasis added). She noted that sections 10(1)(a) and 160.1 of the Health of Animals Regulations “operate so as to make a failure to comply with the conditions attached to a permit a contravention of the Regulations.” The relevant portions of these provisions read:

The trial judge concluded that the bringing of alpacas into Canada other than in accordance with the conditions of the permit constituted a contravention of the Regulations, triggering the provisions of the Act providing for forfeiture or removal. She then quashed the removal order for the reasons noted above. It was this decision to quash the removal order that was appealed by the Minister.

On appeal ([1996] F.C.J. No. 1686, DRS 97-07370, Court File No. A-618-96 (unedited)), the Federal Court of Appeal reversed the decision of the trial judge and restored the removal order. The Court of Appeal found that taking the Health of Animals Act as it was written, the only alternative to the forfeiture of animals imported illegally was removal. On the question of whether a breach of the conditions of a permit constituted a breach of the Regulations, the Court of Appeal simply noted that this was the effect of sections 10(1)(a) and 160.1 of the Health of Animals Regulations.

While the trial judge and the Court of Appeal each took note of the fact that the breach of a condition of a permit was made a contravention of the Health of Animals Regulations by the operation of sections 10(1)(a) and 160.1 of those Regulations, both failed to consider the question of whether the Health of Animals Act authorized the making of regulations deeming a contravention of the conditions of a permit to be a contravention of the Regulations. It was taken for granted by the courts in Barnett that if a provision of the Regulations had been enacted requiring compliance with the conditions of a permit so as to make non-compliance a contravention of the Regulations, there must be authority for that provision in the enabling statute. This is likely because the applicant did not raise the issue of the validity of sections 10(1)(a) and 160.1 of the Health of Animals Regulations.

Yet if, as the trial judge noted, it requires express terms in the Act to make a breach of a condition of a permit a breach of the legislation under which that permit was issued, it logically follows that there must also be express enabling authority in the parent statute to support a regulation having this effect. If Parliament itself can only make a contravention of a condition of a permit a contravention of the legislation under which the permit was issued by expressly so providing, how could it be thought that Parliament’s delegate could do this unless the power to do so is conferred by Parliament in express language? While the enabling authorities in the Health of Animals Act are quite similar to those in the Fisheries Act, in neither statute is there any express authority to make regulations for the purpose of treating the breach of the conditions of an administrative document such as a licence or permit as if it were a contravention of the law. The failure to consider the question of whether enabling authority for sections 10(1)(a) and 160.1 of the Health of Animals Regulations existed in the first place casts serious doubt on the value of the Barnett case as a precedent.

While the Department has characterized the provisions dealt with in Barnett as being “the same in all key elements” as section 36(2) of the Regulations and section 78 of the Fisheries Act, this is not entirely accurate. It bears pointing out that the circumstances in Barnett did not involve the commission of an offence. The Health of Animals Regulations provide for the forfeiture of animals that have been imported in contravention of the Health of Animals Act or its Regulations, and for their removal from Canada where an inspector or officer has reasonable grounds to believe that this is the case or that the animals carry disease. Forfeiture and removal are not dependent on there being a conviction for the offence of contravening the Act or its Regulations. They may be seen as regulatory mechanisms intended to prevent the introduction and spread of disease into Canada, rather than as penalties for contravening the law. In Barnett, the question of whether contravening the conditions of the permit could be punished as an offence did not arise. The situation with respect to section 36(2) of the Ontario Fishery Regulations, 1989 is rather different. Here, the sole purpose is to put in place a mechanism whereby the contravention of the conditions of a licence is punishable by fine or imprisonment as an offence. One is left to wonder whether the courts in Barnett would not have viewed the matter differently had they been faced with the question of whether Mr. Barnett could be imprisoned for contravening the conditions of the permit. Perhaps at least, this possibility might have caused a more careful consideration of the authority for the relevant provisions of the Regulations.

To the extent the Barnett decisions stand for the principle that express language is required to make the breach of a permit condition a breach of the Act or Regulations under which it was issued, they are entirely consistent with the position taken by your Committee. The problem in Barnett is that this principle was only partly applied by the courts. Again, if it requires express terms in the Act or Regulations to treat a breach of a permit condition as a breach of the legislation under which it was issued, there must also be express authority in the parent statute to make a regulation having that effect. In not considering the question of the authority for sections 10(1)(a) and 160.1 of the Health of Animals Regulations, both the Trial Division of the Federal Court and the Federal Court of Appeal failed to deal with this second aspect of the principle.

The Committee has also been referred to two unreported judgments of the British Columbia Provincial Court. Each concerned a provision in the Fisheries (General) Regulations that corresponds to section 36(2) of the Ontario Fishery Regulations, 1989.

In R. v. Norum (2004, BCPC 0609), the defendant sought to introduce the Committee’s proceedings as evidence. The judge, however, ruled that this material could only be used as what he termed an “aide memoir” to assist the defendant in formulating his argument that the provision in question was ultra vires. The judge then went on to conclude that a breach of the conditions of a licence constitutes a breach of the regulations establishing that licence. As a precedent for this characterization, reliance was placed on the decisions of the Federal Court, Trial Division and the Federal Court of Appeal in the Barnett case. As noted above, however, the Committee has doubts as to the value of the Barnett case as a precedent.

In R. v. Murray (2005 BCPC 511), the judge concluded that a provision making it an offence to comply with licence terms and conditions was authorized by section 43(a) of the Fisheries Act as a regulation “for the proper management and control” of the fisheries. Licensing being central to the control and management of fisheries, the power to make a regulation requiring compliance with licence terms and conditions was seen to necessarily follow. The judge also concluded that there was nothing in the Act to indicate that Parliament intended that suspension or cancellation should be the only consequences for contravening the terms or conditions of a licence. This is contrary to the conclusion reached by the Committee as explained in detail above.

Finally, in R. v. Ivey Fisheries Ltd., (2006 NSPC 5), the Provincial Court of Nova Scotia dealt with the same question. Here, the judge described the defendant’s argument as being based “largely on the fact that a bill was before Parliament in June 2005 to amend the Fisheries Act to specifically make it an offence to breach terms and conditions of a lease, licence or permission granted under the Act. This was apparently recommended as a way to deal with a similar section in the Ontario Fishery Regulations which, in the opinion of the Parliamentary Standing Committee scrutinizing regulations was ultra vires.” (The Bill in question, Bill C–52, is further discussed below.) The judge rejected the relevance of the proposed legislation, observing that “the duty of this Court is to construe statutes and regulations as they presently exist”.

The judge in Ivey Fisheries Ltd. then concluded that:

To hold that Parliament intended to set up a scheme for licencing and controlling fishing without a mechanism for meaningful enforcement, other than licence suspension, would be to make a laughing-stock of Parliament. The obvious intent … was to provide for enforcement of all regulations properly enacted under the authority of the Act. As no one has suggested that the regulations referred to are not within the authority granted to issue and set terms and conditions of licences, I find that these regulations are not ultra vires”.

As concerns the comment that the absence of a means of enforcement of licences other than suspension (not to mention cancellation) would render Parliament a “laughing-stock”, it bears noting that it is by no means unusual for licencing schemes to be established by federal legislation under which suspension and cancellation are the sole means of enforcing licences. Indeed, in several instances, the addition of provisions corresponding to section 36(2) of the Ontario Fishery Regulations, 1989 is a relatively recent development. In view of this, and in light of the deemed adoption of the Committee’s Report No. 75 by the Senate, it would seem that at least some parliamentarians take a rather different view.

In the end, the Committee concludes that there is little in these lower court decisions that would merit retreating from its position. In particular, in none of these judgments did the court deal with the fundamental distinction in law between the exercise of a legislative power and the exercise of an administrative power. Under our system of law and government, it is generally accepted that criminal sanctions attach only to the contravention of a requirement that has been established by legislation. A licence, however, is an administrative document; it is not legislation. This means that the terms and conditions attached to the licence will be imposed administratively on a case-by-case basis by the official issuing the licence. Thus, the actual requirements that a licence holder must obey will be set out in the licence, as opposed to the law itself. Yet non-compliance with these terms and conditions will lead to criminal prosecution. In short, the exercise of an administrative discretion by individual officials is enforced as if it were law.

Moreover, the Norum, Murray and Ivy Fisheries Ltd. decisions further illustrate the difficulty in identifying a precise enabling provision authorizing these types of provisions. While the judge in Murray relied solely on section 43(a) of the Act, the judge in Norum also found authority in section 43(b), which permits regulations respecting the conservation and protection of fish. The judge in Ivy Fisheries Ltd., however, relied on sections 43(f) (respecting the issue, suspension and cancellation of licences and leases) and 43(g) (respecting the terms and conditions under which a licence and lease may be issued) as necessarily including the power to punish contraventions of the terms and conditions of licences as offences under the Act. The issue of validity aside, this underscores the need for Parliament to address the question in clear and uncertain terms.

Departmental officials have also referred to a passage from Elmer Driedger’s The Composition of Legislation — Legislative Forms and Precedents, published in 1976 by the Department of Justice. As indicated by the title, this work was intended by Mr. Driedger, a noted authority on statute law and a former Deputy Minister of the Department of Justice, to be a compilation of drafting illustrations, rather than a text on statutory interpretation (the subject of another work by the same author). As explained in the Forward to the 1963 First Edition, it is “an account of some of the things I do and some of the things I do not do, according to my own notions of what is good or right and what is not”. The author also cautioned that the examples provided “are intended to illustrate the point under discussion and are not necessarily to be taken as examples of good drafting or of good law.”

The passage in question is as follows:

Difficulties may arise where subsidiary orders are made by regulation. Suppose that the statute authorizes a Minister to make regulations, and also prescribes the penalty for breach of a regulation; and that a regulation is then made authorizing a subordinate official to issue directions. How can the directions be enforced? The statute supplies the penalty for breach of a regulation, but not of a direction; and the Minister has no authority to prescribe any penalties. This problem can be met by inserting another regulation to the effect that every person to whom a direction is issued shall comply with it. Failure to comply with a direction then constitutes a breach of a regulation and the Act supplies the penalty.

No authority approving of this approach is cited, nor is there any analysis of the principles with which the Committee is concerned. This should not be surprising, given that the purpose is to illustrate how a problem may be solved as an exercise in legislative drafting, rather than to discuss legal principles. Unfortunately, this also means there is no way of knowing with certainty whether the author viewed the mechanism described as giving rise to no concerns in law or in principle, or whether given the focus of the work, he simply never turned his mind to such questions. The above example could also be seen to presume that a proper enabling authority existed for the provisions described, just as it presumes the authority to make regulations delegating the power to issue directions. Of course whether that is in fact so must be determined in each particular instance. It is also worth noting that Dreidger’s example differs in one important aspect from the situation with respect to section 36(3) of the Ontario Fishery Regulations, 1989. In the example there is no means to enforce the direction (obviously it does no good to suspend or cancel a direction). Where the terms or conditions of a permit or licence are contravened, the sanctions of suspension and cancellation are provided.

In May of 2005, the Committee tabled its Report No. 75, which proposed the disallowance of section 36(2). The Government responded by introducing Bill C–52. This Bill would have added a provision similar to section 36(2) of the Regulations to the Fisheries Act itself. Section 36(2) would have become unnecessary, and in that sense the Committee’s concerns would be resolved. Based on the expectation that Bill C–52 would be passed, it was moved that the Committee’s disallowance report not be adopted, and that the matter be referred back to the Committee for further study. This motion was adopted by the House of Commons. (The Report was deemed to have been adopted in the Senate.)

Bill C–52 did not pass prior to dissolution, however, in part because some parliamentarians at the time opposed in principle making the contravention of an administrative document such as a licence punishable in the same manner as though it were a provision of an Act or Regulation, regardless of how this was done.

Thus, while continuing to assert the validity of section 36(2), the Government has agreed to amend the Fisheries Act to “clarify” that every person who contravenes a term of condition of a licence issued under the Act commits an offence. Indeed, there have been no less than five unsuccessful attempts to resolve the Committee’s objection by amending the Fisheries Act itself. In December of 1995, provisions creating the offence of contravening a term or condition of a licence were introduced as part of Bill C–115, a proposed new Fisheries Act. The Bill did not progress past first reading. In October of 1996, the Bill was reintroduced as Bill C–62. It too failed to receive passage. A more modest package of amendments, Bill C–33, was introduced in April of 2004, but also failed to receive passage. On May 5, 2005, Bill C–52 was introduced in response to the Committee’s report No. 75. Bill C–52 was itself a reintroduction of a previous bill (Bill C–43), that did not progress beyond first reading.

In response to the Disallowance Notice issued by the Committee on June 1, 2006, the Minister of Fisheries and Oceans informed the Committee that an amendment to the Fisheries Act “to specifically set out in the Act the requirement to comply with licence conditions” would be included in a forthcoming Bill to effect a comprehensive revision of the Act. This assurance was reiterated in the course of the appearance of the Minister before the Committee on November 23, 2006. As promised, Bill C–45 was introduced in the House of Commons on December 13, 2006. Proposed section 33(5) provides that “The holder and any other person fishing under the authority of a licence must comply with the conditions of the licence.” The Bill would then establish a system of sanctions for fisheries violations, included contraventions of the terms and conditions of licences, to be administered by a new Canada Fisheries Tribunal.

Nevertheless, given the history of previous unsuccessful attempts to enact such legislation, there may be some scepticism as to whether the fact of the introduction of comprehensive fisheries legislation yet again means that a resolution of the Committee’s objection is near at hand. It goes without saying that a comprehensive revision of the Act represents a significant legislative initiative, and will be the subject of lengthy and intensive scrutiny not only by Parliament, but by the affected industry, environmental groups, and other interested members of the public.

In the meantime, section 36(2) of the Regulations remains. Presumably fishers continue to be punished for the breach of the terms and conditions of their licences in a manner that the Committee views as improper, not to say illegal. The use of the regulatory technique to which the Committee has objected may also be found in a number of other regulations made under the Fisheries Act, as well as in regulations made under other statutes.

Being well aware of the problems and difficulties of reaching a consensus on a reform of the Fisheries Act, and considering that these regulations may have a direct impact on the liberties of Canadians, your Committee considers that further delay is not acceptable, and feels justified in again proposing the disallowance of section 36(2) of the Ontario Fishery Regulations, 1989. In the event the Houses agree with the revocation of this provision, your Committee would expect this decision to form a precedent for the immediate removal of similar provisions in other regulations under the Fisheries Act.

In closing, the Committee wishes to briefly address certain concerns expressed both by officials of the Department of Fisheries and Oceans and the Government of Ontario that section 36(2) is a necessary enforcement mechanism without which licence violations cannot be addressed. Disallowance of section 36(2) may change the manner of enforcing compliance with terms and conditions of licences, but would certainly not affect in any way the ability to impose such terms and conditions. Moreover, whether or not section 36(2) remains in the Regulations, the authority to issue licences and to impose terms and conditions on the licence would remain unimpaired, as would the ability to enforce observance of those terms and conditions. The imposition of a fine or a jail term for breach of a licence condition, as opposed to suspending or cancelling the same licence, has nothing to do with the sustainability of the fishery resource.

While the Committee understands that the federal and provincial governments favour the enforcement of terms and conditions of licences through fines and imprisonment rather than licence suspensions or cancellations, the Committee would be remiss in its statutory responsibility if it allowed this policy preference to override the principle that the Executive may not create offences punishable by criminal sanctions without clear authority granted by Parliament. It is the responsibility of the Executive to ask the Houses for that authority.

It is the view of the Committee that the conclusions reached in its previous Reports remain valid. 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 purpose of section 36(2) of the Regulations is to impose criminal liability for the breach of a term or condition of a licence. There is no authority in the Fisheries Act either express or necessarily implied, however, for such a provision. Even leaving the issue of legality aside, such a provision can be seen to contravene the Committee’s criteria as trespassing unduly on rights and liberties, representing an unusual and unexpected use of the enabling authority, and making the rights and liberties of the subject unduly dependent on administrative discretion.

While it may be that the enactment of new fisheries legislation will resolve this concern, given the substantive nature of the objection to this and similar sections in other regulations, and having regard to the fact they bring into play the right to freedom and security of the person, the Committee considers that a resolution of this issue ought to be a priority, and ought not to be deferred any longer. It is surely not acceptable that the requirements a citizen must obey upon pain of criminal prosecution be determined by a single official who decides what will or will not be included in the terms or conditions of a licence.