COURT OF APPEAL REGINA. vs.

Transcription

1 COURT OF APPEAL ON APPEAL FROM THE ORDER OF THE HONOURABLE MR. JUSTICE CURTIS PRONOUNCED THE 23RD DAY OF SEPTEMBER, No. CA026446, CA026447, CA026448, CA Vancouver Registry REGINA vs. No. CAD26446 RESPONDENT (APPELLANT) GEORGE E. HOUVINEN, JOHN STEFIUK, FREDERICK EDWARD CARTER, TODD RICHARD STRUKOFF, LAWRENCE J. SALMI, LAWRENCE RUSSELL SHEARER, EDGAR ALFRED BIRCH, CHRIS STAMATIOU, WILLIAM ANDERSON, AUGUSTUS THOMAS JACOBSON, LEONARD SAMUEL HARRY SONNENBERG. TROY LESLIE STRUKOFF, PASQUALE MARRA, and JOHN REGINALD MURRAY APPELLANTS (RESPONDENTS) REGINA vs. No. CA RESPONDENT (APPELLANT) MICHAEL J. NORUM, EDWlN NORUM, LAWRIE RONNESETH, IRENE DONNA CURTIS, FRANK CORAY, DONALD BICKNELL, DARRELL FORSEYTH. DONALD MICHAEL CARTER and FRANCES CAROLINE CARTER APPELLANTS (RESPONDENTS) REGINA vs. PHIL ElDSVlK REGINA vs. No. CA RESPONDENT (APPELLANT) APPELLANT (RESPONDENT) No. CA RESPONDENT (APPELLANT) MIKE HAFFENDEN and MERVIN TUDOR APPELLANTS (RESPONDENTS) RESPONDENT'S FACTUM SOLICITORS FOR THE RESPONDENTS Department of Justice Howe Street Vancouver, B.C. V6Z 259 Tel. (604) IFax: (604) Harry J. Wruck. Q.C. and W. Paul Riley SOLICITORS FOR THE APPELLANTS Fasken Mariineau DuMoulin. LLP Barristers and Solicitors West Georgia Street Vancouver, B.C. V6E 3G2 Tel: (604) Fax: (604) Christopher Harvey. Q.C.

2 PART PAGE PART I: PART II: STATEMENT OF FACTS ISSUES ON APPEAL A. No Evidentiary Basis to Support the Ruling B. Issues Raised by the Appellants PART Ill: ARGUMENT A. No Evidentiary Basis to Support the Ruling B. Issues Raised by the Appellants lssue I: The Validity of the ACFLR The Governor in Council Clearly had the Authority To Establish the ACFLR The Aboriginal Nature of the ACFLR The Appellants' Regulatory Argument The Minister is entitled to issue license under the ACFLR even where no Aboriginal Right to fish commercially exists in law lssue II: Dispensation lssue Ill: Abuse of Process The Standard for Abuse of Process The Cummins Decision Selective Prosecution and Dispensation No Allegation of Bad Faith Public Interest in Continued Enforcement of the Fisheries Act PART IV: NATURE OF ORDER SOUGHT LIST OF AUTHORITIES

3 Respondent's Factum PART l STATEMENT OF FACTS 1. he Respondent does not accept the Appellants' Statement of Facts in that many of the important facts have not been set out, others are inaccurate whereas others are irrelevant and many of the purported facts are an intermingling of legal and non-legal arguments. 2. Paragraph 1 of the Statement Facts of the Appellants is incorrect in that the Appellants were not all charged with fishing for salmon during a close time as stated by the Appellants. Rather, various Appellants were charged with a series of fisheries offences including fishing during a close time, fishing for salmon with a gill net during a close time, and with being in possession of chum salmon caught in contravention of the Fisheries Act. 3. More particularly, the Appellants were charged with the following fisheries offences: a) Information C (A.B., p. 1): i) George Houvinen, John Stefiuk, Frederick Carter, Todd Strukoff, Lawrence Salmi, Lawrence Shearer, Edgar Birch, Chris Stamatiou, William Anderson, Augustus Jacobson, Leonard Sonnenberg, Pasquale Marra and John Murray were charged with violating s.25(1) of the Fisheries Act (setting fishing gear during a close time) and s.53(1) of the Pacific Fishery Regulations, 1993 (fishing for salmon with a gill net during a close time) in the Fraser River at Delta, B.C. on October 26, 1996; ii) George Houvinen, John Stefiuk, Edgar Birch, Troy Strukoff and Pasquale Marra were also charged with violating s.33 of the Fisheries Act (possession of chum salmon caught in contravention of the Fisheries Act or Regulations) on October 26, b) lnformation C (A.B., pp. 2 and 3): i) Michael Norum, Edwin Norum, Lawrie Ronneseth, Irene Curtis and Frank Coray were charged with violating s.25(1) of the Fisheries Act (setting fishing gear during a close time) and s.53(1) of the Pacific Fishery Regulations, 1993 (fishing for salmon with a gill net during a close time) in the Fraser River at Surrey, B.C. on August 9, 1997; ii) Donald Bricknell and Darrell Forsyth were charged with violating s. 25(1) of the Fisheries Act (setting fishing gear during a close time) and s. 53(1) of the Pacific Fishery Regulations, 1993 (fishing for salmon with a gill net during a close time in Canadian fisheries waters near Richmond, B.C.) the same offences on August 9,1997;

4 Respondent's Factum 2 iii) Donald Carter and Frances Carter were charged with violating s. 25(1) of the Fisheries Act (setting fishing gear during a close time on August 9, 1997 in Canadian fisheries waters) at New Westminster, B.C. on August 9, c) lnformation (A.B.. p. 4): Phil Eidsvik was charged that he, at Delta, B.C., counseled another person or persons to violate s.25(1) of the Fisheries A d (setting fishing gear during a close time) and s.53(1) of the Pacific Fishery Regulations, 1993 (fishing for salmon with a gill net during a close time) in the Fraser River on August 9, d) lnformation (A.B., p. 5): Mike Haffenden and Mervin Tudor were charged with violating s.25(1) of the Fisheries Act (setting fishing gear during a close time) and s.53(1) of the Pacific Fishery Regulations, 1993 (fishing for salmon with a gill net during a close time) in the Fraser River at Surrey, B.C. on November 6, The Appellants applied to Thomas P.C.J. on June 26, 1998 for a stay of proceedings prior to entering pleas to the charges set out herein. On August 6, 1998, the learned Provincial Court Judge entered a judicial stay of proceedings on all of the charges on the ground "... that the DFO has dispensed with the law by adopting an enforcement policy which focuses on one group, and exempts another group and that the policy violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed." Reasons of Thomas, P.C.J., A.B., page The learned Provincial Court Judge relied on his previous decision in R. v. Cummins, (January 26, 1998), Surrey Registry No [unreported], in which he stated, by way of dicta, that a licence issued under the Aboriginal Communal Fishing Licences Regulations (ACFLR) (Appendix "A" to the Appellants' Factum) to the Musqueam, Burrard and Tsawwassen Bands was a nullity because the Minister did not have the authority to permit the sale of fish caught under the licence. Reasons of Thomas, P.C.J., A.B., pages 38 to On September 23, 1999, Mr. Justice Curtis of the British Columbia Supreme Court allowed the Crown's appeal and remitted the matter back to the Provincial Court. Curtis J. found that the learned Provincial Court Judge erred in finding that the issuance of licences under the ACFLR for the sale of fish was illegal on the ground that the Department of Fisheries and Oceans (DFO) was attempting to dispense with the enforcement of the law in favour of a particular group. Curtis J. also found that the ACFLR permitted the issuance of licenses for commercial purposes, and therefore, "no improper dispensing with the law has been established."

5 Respondent's Factum 3 Reasons of Curtis, J., A.B., pages 58 to 60; paragraphs At paragraphs 1 and 2 of their Statement of Facts, the Appellants misstate one of the key poi"ts at issue on this appeal. The Appellants suggest that the enforcement policy in this case represents an illegal dispensation of the law in favour of aboriginals by the executive of the federal government. In fact, what is at issue is whether the law that permits certain aboriginals to fish commercially pursuant to the ACFLR represents any illegal dispensation of the law in favour of aboriginals. 8. Paragraphs 3, 4 and 6 of the Appellants' Statement of Facts are matters of argument and are addressed by the Respondent in Part Ill Argument of this factum. 9. Paragraph 5 of the Appellants' Statement of Facts is inaccurate in that the Regulatory Impact Analysis Statement (RIAS) is selectively quoted by the Appellants. specifically contemplates that the ACFLR may be used to authorize the sale of fish: The RlAS 'Terms and conditions may include, among other things, authorization for the sale of fish harvested under the licence, provide for the designation of persons or vessels to fish under the licence and obligate the licence holder to report on catches." See RlAS at Appendix A of the Factum of the Appellants, p. 3, 1'' paragraph 10. The statement in the RlAS is important because part of the purpose of the RlAS is to describe what the regulations do. Furthermore, the RlAS is part of the public consultation process. The federal government published the RlAS in the Canada Gazefte with the regulations at the time that these regulations were enacted. 11. The Respondent disagrees with the Appellants' Statement of Facts in paragraphs 7, 8, 9 and 10 in that the Appellants failed to adduce any evidence before the learned Provincial Court Judge to support the finding of those facts. In particular: (a) There is no evidence that licences were issued for any type of aboriginal fishery at the times and places alleged in the various Informations under which the Appellants were charged. The only evidence of the existence of an aboriginal fishery in which the sale of fish was permitted was completely irrelevant because the evidence related to a different time and place. This evidence consisted of counsel for the Appellants putting before the Court:

6 Respondent's Factum 4 (i) (ii) an irrelevant Aboriginal Communal Fishing Licence for the Tseshaht and Hupacasath Indian Bands for the period from May 28, 1998 to August 9, 1998 for the Sornass River and Alberni Inlet in Vancouver Island; (the Appellants, on the other hand, are alleged to have committed fishing violations in the lower mainland area of the Fraser River in 1996 and 1997); and Exhibit 4, Aboriginal Communal Fishing Licences for the Tseshaht and Hupacasath Indian Bands for salmon, A. B.. pages 21 to 26. an irrelevant DFO Notice to industry on June 19, 1998, of a pilot sales opening (the Appellants are alleged to have committed fishing violations in 1996 and 1997 and not in 1998). Exhibit 3, Public Notice of Fishery, A.B., pages 19 and 20. (b) There was no evidence before the Court that there were any aboriginal persons fishing at the same time or place as the Appellants were alleged (in the Informations) to be fishing. (c) There was no evidence before the Court that any of the Appellants fished at the same time or in the same place as Mr. Cummins did when he was arrested with respect to the charge on which he was subsequently convicted. 12. Paragraph 11 of the Appellants' Statement of Facts is incomplete and accordingly this Court should consider the following facts. Robert Martinolich, the Acting Director of Conservation and Protection for DFO and the Pacific Region, was the only witness called on the application for a judicial stay before the Provincial Court Judge. He was called by the Crown at the request of counsel for the Appellants. Mr. Martinolich testified about DFO's policy and procedure for enforcement of the Fisheries Act and Regulations with respect to aboriginal people. Proceedings before the Provincial Court Judge, June 26, 1998, Transcript pages 5 to When asked whether a person who was designated under an ACFLR licence would be charged if he was fishing for sale, Mr. Martinolich said: "A Provided he is in compliance with the terms and conditions of the licenses, there would be nothing to charge him with... Communal Licenses list term and

7 Respondent's Factum 5 conditions and if he's in adherence with them, then there would be no reason to charge him Q A All right. But the general enforcement policy, as I've said, if somebody is there fishing without a designation or status card, enforcement action is taken, if he has a designation or status card, then no enforcement action is taken with respect to the pilot sales or commercial fishery? If he's in violation of the Regulations or the term of conditional license, enforcement action would be taken. If he is not in violation of them or suspected violation, there's no enforcement action to take." Proceedings before Provincial Court Judge, June 26, 1998, Transcript, page 13, lines 4 to 12, and 44 to 47. and page 14, lines 1 to 7.

8 Respondent's Factum 6 PART II ISSUES ON APPEAL A. NO Evidentiary Basis to Support the Provincial Court Judge's Ruling 14. In the proceedings below, the Respondent argued, inter alia, that the learned Provincial Court Judge based his judgment upon facts not proved in evidence. While the learned Summary Conviction Appeal Judge chose to deal directly with the validity of the ACFLR and ultimately allowed the Crown's appeal on the basis that the ACFLR was valid, the Respondent nevertheless maintains that Provincial Court Judge's decision was based on facts not proven in evidence. The Respondent's principal position is that this appeal should be dismissed on that ground alone. B. Issues Raised by the Appellants 15. Should this Court not accede to the Respondent's submission that the Provincial Court Judge erred in law by basing his judgment on facts not in evidence before him, the Respondent would characterize those issues raised by the Appellants as follows: (i) Whether the Governor in Council has the power, pursuant to the provisions of the Fisheries Act, to enact the ACFLR authorizing the Minister to issue aboriginal communal fishing licences with a commercial component notwithstanding that the aboriginal group in question may not have established, in court, an aboriginal right to fish commercially. (ii) Whether the prosecution of the Appellants, in circumstances where those authorized to fish under the ACFLR would not be prosecuted, amounted to an improper dispensation of the law by the executive in favour of a particular group. (iii) Whether the prosecution of the Appellants, in circumstances where those authorized to fish under the ACFLR would not be prosecuted, amounted to an abuse of process warranting a judicial stay of proceed~ngs.

9 Respondent's Factum 7 PART Ill ARGUMENT A. NO Evidentiary Basis to Support the Provincial Court Judge's Ruling 16. In the proceedings below, the Respondent argued, inter aha, that the Provincial Court Judge erred in basing his decision staying the proceedings on facts not proved in evidence before him. While the learned Summary Conviction Appeal Court Judge chose to deal directly with the validity of the ACFLR, and ultimately allowed the Crown's appeal on that basis, the Respondent maintains before this Court that the Provincial Court Judge's decision was based on facts not before him. 17. The Respondent in a criminal appeal may advance any argument which would sustain the judgment rendered in the proceedings below, notwithstanding the fact that the learned Summary Conviction Appeal Court Judge chose not to deal with the Crown's argument respecting the insufficiency of the record. R. v. Perka, [I S.C.R. 232, 14 C.C.C. (3d) 385 (at pp C.C.C.); and R. v. Keegstra, [I S.C.R. 631, 98 C.C.C. (3d) 1 (at para. 26 C.C.C.) 18. Further, in summary conviction proceedings the Crown may appeal on a question of fact and the summary conviction appeal court may set aside the acquittal where the verdict is unreasonable or cannot be supported by the evidence. R. v. Baig (1 9W), 78 C.C.C. ( at p. 272 (B.C.C.A.); R. v. St. Jean. [I 9951 B.C.J. No (B.C.S.C.); and Criminal Code, R.S.C. 1985, c. C-46, ss. 81 5, With respect to the facts on which the Provincial Court Judge based his decision, he Respondent submits that there was no evidence to support his findings on the following matters. (a) There was no evidence to support the Provincial Court Judge's conclusion that the Appellants fished during the opening of the Fraser River for the Aboriginal Pilot Sales program. The only evidence of the existence of an aboriginal fishery in which the sale of fish was permitted was completely irrelevant because the evidence related to a different time and a different place. This evidence consisted of: (i) an irrelevant Aboriginal Communal Fishing License during 1998 in Vancouver Island area; (the Appellants on the other hand are alleged to have committed fishing violations in the Fraser River in 1996 and 1997); and

10 Respondent's Factum 8 Exhibit 4, Aboriginal Communal Fishing Licences for the Tseshaht and Hupacasath Indian Bands for salmon, A. B., pages 21 to 26 (ii) an irrelevant DFO Notice to industry on June 19, 1998, of a pilot sales opening (the Appellants are alleged to have committed fishing violations in 1996 and 1997). Exhibit 3, Public Notice of Fishery, A.B., pages 19 and 20 Since the Appellants were charged with a number of different offences alleged to have been committed at various different dates and places, it is impossible to determine from the evidence before the Provincial Court Judge which particular Indian bands, if any, were permitted by aboriginal communal fishing licenses to fish, and to what extent they were permitted to fish, at the times and places referred to in the charges against the Appellants. (b) There was no evidence as to why the Appellants committed the acts alleged in the charges against them. Consequently, the evidence did not support the Provincial Court Judge's conclusion that the Appellants committed the acts alleged in the charges against them as a means of protesting the aboriginal commercial fishery. (c) There was no evidence that the Appellants were licensed commercial fisherman. In other words, there was no evidence before the Provincial Court Judge with respect to whether the Appellants in fact had commercial fishing licenses which would have permitted them to lawfully commit the acts alleged in the charges if they had not been fishing during a closed time. 20. The Appellants, having applied to the Provincial Court Judge for an order staying the proceedings against them, bore the burden of establishing, on a balance of probabilities, the facts upon which a finding of abuse of process could properly be founded. In the Respondent's submission, the Appellants failed to do this. As a consequence, the appeal should be dismissed. 21. Finally, the Appellants allege that it is an abuse of process to prosecute them while allowing those designated under ACFLR to fish. As a component of this argument, the Appellants allege that there is no commercial aboriginal right to fish salmon in the "lower Fraser." The Respondent's position, as set out below, is that regulations can be enacted under the Fisheries Act (Appendix "E", Appellants' Factum), to authorize the Minister to issue, to an aboriginal organization, licences that permit the sale of fish, notwithstanding that the aboriginal

11 Respondent's Factum 9 organization may not have an established aboriginal right to fish commercially. Nevertheless, to the extent that the Appellants' position rests upon their assertion that no such aboriginal right exists, the onus rests with the Appellants to prove that assertion. 22. The Appellants presented no evidence before the Provincial Court Judge as to the scope of aboriginal communal fishing rights, if any, enjoyed by the various bands who fish the lower Fraser River. The Appellants argue that no commercial aboriginal fishing rights exist in the lower Fraser on the basis of the decision in R. v. Van der Peet, [I S.C.R. 507, (1996), 137 D.L.R. (4'" 289. Yet in that case, the Court made it clear that the scope of aboriginal rights recognized under s. 35 of the Constitution Act, 1982 must be determined on the evidence in each case having regard to the traditional practices of the bands in question: "Courts considering a claim to the existence of an aboriginal right must focus specifically on the traditions, customs, and practices of the particular aboriginal group claiming the right. In the case of Kruger, supra, this Court rejected the notion that claims to aboriginal rights could be determined on a general basis. This position is correct; the existence of an aboriginal right will depend entirely on the traditions, customs and practices of the particular aboriginal community claiming the right. As has already been suggested, aboriginal rights are constitutional rights, but that does not negate the central fact that the interests aboriginal rights are intended to protect relate to the specific history of the group claiming the right. Aboriginal rights are not general and universal; their scope and content must be determined on a case by case basis. The fact that one group of aboriginal people has an aboriginal right to do a particular thing will not be, without something more, sufficient to demonstrate that another aboriginal community has the same aboriginal right. The existence of the right will be specific to each aboriginal community." 23. Furthermore, the Van der feet decision related to fishing by members of the Sto:lo Indian Band who were fishing in the upper portion of the lower Fraser. The area in which the Appellants were fishing was near the mouth of the Fraser, which is an area for which Bands other than the Sto:lo are usually issued communal licences. The Appellants' reliance upon the decision in R. Van der Peet, supra, to say that there is no commercial aboriginal right to fish salmon in the lower Fraser is therefore misplaced. 24. The lack of evidence on this point is compounded by the fact that there is no evidence from which a court could identify the particular Indian bands that the Appellants allege do not have an aboriginal right to fish commercially.

12 Respondent's Factum 10 B. Issues Raised by the Appellants Issue I: The Valdity of the ACFLR 25. 'lt is respectfully submitted that the learned Summary Conviction Appeal Judge quite correctly held that the Fisheries Act gives the Governor in Council the necessary authority to enact the ACFLR. Accordingly, Mr. Justice Curtis quite rightly held that given there was a valid law in existence, pursuant to which aboriginal persons were fishing, there could be no improper dispensing of the law as alleged by the Appellants. Accordingly, the appeal against the judicial stay for abuse of process was correctly allowed. The Governor in Council Clearly had the Authority to Establish the ACFLR 26. It is submitted that the Governor in Council had ample authority under the Fisheries Act to make the ACFLR and to give the Minister the discretion to issue licences pursuant to the ACFLR. Section 7 of the Fisheries Act grants to the Minister the authority to issue fishing licences by providing as follows: "7.(l)... the Minister may, in his absolute discretion, wherever the exclusive right of fishing does not already exist by law, issue or authorize to be issued leases and licences for fisheries or fishing, wherever situated or carried on." 27. Section 43 of the Fisheries Act authorizes the Governor in Council to make the ACFLR: "43. The Governor in Council may make regulations for carrying out the purposes and provisions of this Act and in particular, but without restricting the generality of the foregoing, may make regulations (a) (b) (c) (d) (e) (f) (g) (I) (m) for the proper management and control of the sea-coast and inland fisheries; respecting the conservation and protection of fish; respecting the catching, loading, landing, handling, transporting, possession and disposal of fish; respecting the operation of fishing vessels; respecting the use of fishing gear and equipment; respecting the issue, suspension and cancellation of licences and leases; respecting the terms and conditions under which a licence and lease may be issued; prescribing the powers and duties of persons engaged or employed in the administration or enforcement of this Act and providing for the carrying out of those powers and duties; and where a close time, fishing quota or limit on the size or weight of fish has been fixed in respect of an area under the Regulations, authorizing

13 Respondent's Factum I I persons referred to in paragraph (I) to vary the close time, fishing quota or limit in respect of that area or any portion of that area. Sections 4 and 5(1)(1) of the ACFLR provide as follows: "4. The Minister may issue a communal licence to an aboriginal organization to carry on fishing and related activities. 5.(1) For the proper management and control of the fisheries and the conservation and protection of fish, the Minister may specify in a licence any condition respecting any of the matters set out in paragraphs 22(l)(b) to (2.1) of the Fishery (General) Regulations and any condition respecting any of the following matters, without restricting the generality of the foregoing: (I) the disposition of fish caught under the authority of the licence." The Appellants seek to unduly restrict the authority given by Parliament to the Governor in Council to make regulations under the Fisheries Act as well as restricting the broad discretion given to the Minister by Parliament under section 7 of the Fisheries Act. In order to appreciate the error in the Appellants' analysis it is helpful to examine the purposive approach that the Supreme Court of Canada adopted in analyzing sections 7 and 43(a) of the Fisheries Act in Comeau's Sea Foods Ltd. v. Canada (Fisheries and Oceans), [I997 1 S.C.R. 12; (1997), 142 D.L.R. (4") 193. In delivering the judgment of the Court, Major, J. opined at pages 201 to 202: "It is my opinion that the Minister's discretion under s. 7 to authorize the issuance of licences, like the Minister's discretion to issue licences, is restricted only by the requirement of natural justice, no regulations currently being applicable. The Minister is bound to base his or her decision on relevant considerations, avoid arbitrariness and act in good faith. The result is an administrative scheme based primarily on the discretion of the Minister: see Thomson v. Minister of Fisheries and Oceans, F.C.T.D. No. T February 29, This interpretation of the breadth of the Minister's discretion is consonant with the overall policy of the Fisheries Act. Canada's fisheries are a "common property resource", belonging to all the people of Canada. Under the Fisheries Act, it is the Minister's duty to manage, conserve and develop the fishery on behalf of Canadians in the public interest (s. 43). Licensing is a tool in the arsenal of powers available to the Minister under the Fisheries Act to manage fisheries. It restricts the entry into the commercial fishery, it limits the numbers of fishermen, vessels, gear and other aspects of the commercial fishery. Under the Fisheries Act, the Minister has the additional authority to open and close fisheries (s. 43)(a)..."

14 Respondent's Factum At pages 204 to 205, Major, J. continued to interpret the breadth of the Minister's wide discretion in light of the need to respond to policy concerns affecting thefishery, including socio- economic concerns, stating: "... Here as in that case, the Minister's wide discretion must be interpreted in the light of the need to respond to immediate policy concerns affecting the fishery... It is only after a licence has been issued that the Fisheries Act imposes limits upon the Minister's discretion... Where a Minister of the Crown is required by statute to exercise his or her discretion in reaction to immediate and pressing policy concerns, the legislature can usually be taken to have intended that he or she be ultimately responsible to political authority. In most instances the issuance of the licence would be expected to follow its authorization in short order... It is my opinion that the Minister implementing government policy in the discharge of his office was not acting ultra vires in revoking the authorization he had previously given to issue lobster fishery licences to the Appellant." 31. It follows from a review of these authorities that section 43 of the Fisheries Act gives the Governor in Council an extremely broad power to make regulations including, it is submitted, the power to make the ACFLR. 32. What the Appellants fail to recognize is that the discretionary power that has been given to the Minister by Parliament and by the Governor in Council may be exercised for all types of reasons including for the purpose of carrying out social, cultural or economic goals and policies. The Governor in Council clearly has the authority to make regulations to assist aboriginal groups in achieving economic goals. Gulf Trollers Association et al. v. Canada (Minister of Fisheries and Oceans) et a/., [I W.W.R. 727 (F.C.A.); leave to appeal to the S.C.C. refused on March 24,1987, [I W.W.R. Ixx. The Aboriginal Nature of the ACFLR 33. The approach of the Governor in Council in enacting the ACFLR is completely in accord with the legal principles laid down by the Supreme Court of Canada and this Honourable Court in respect to how aboriginal people should be treated by governments given their unique position in Canadian society. 34. Quite to the contrary of what the Appellants state at paragraph 6 of the Statement of Facts, it is clear that the creation of the ACFLR is not an attempt to bypass the Pacific Fishery Regulations, 1993 (Appendix "B, Appellants' Factum), but simply to create regulations to assist aboriginal people and better manage and conserve the fishery.

15 Respondent's Factum As Mr. Justice Wallace stated in Regina v. Van der Peet (1993), 80 B.C.L.R. (2d) 75 at 103 (affirmed by S.C.C. in Regina v. Van der Peet, [I S.C.R. 507): Vn my view, steps taken to facilitate and promote successful aboriginal participation in commercial ventures are undoubtedly desirable and beneficial to the province and its citizens as a whole. It is an issue which I understand is presently the subject of negotiation with various government departments and other concerned parties. If such is the case, the parties are to be commended for undertaking such a complex task and I wish them every success. This judgment should not impede their reaching an accord; it merely declares that on the facts of this case this appellant's right to participate in the commercial marketing of fish does not have as its basis the protected aboriginal right to fish for food, social and ceremonial purposes." 36. As the Supreme Court of Canada has held in Marshall v. R. (1999), 179 D.L.R. (4'" 193 (Marshall No. 2) at paragraph 22, fisheries conservation and management are matters that are best left to government and aboriginal people to resolve through negotiation and reconciliation of the complex and competing interests at stake. See also: Delgamuukw v. B.C. (1 997), 153 D.L.R. (4'" 193. para Given the nature of the unique relationship between the federal government and aboriginal peoples with respect to fishing issues, it is open to the Governor in Council to enact the ACFLR. 38. It also goes without saying that the aboriginal peoples of Canada are a disadvantaged group suffering serious social and economic problems. It is open to government to attempt to remedy that situation through initiatives such as through the creation of the ACFLR. Such management of the fishery is in keeping with the comments of Chief Justice McEachern in Delgamuukw et a1 v. British Columbia (1 991), 79 D.L.R. (4") 185 (B.C.S.C.) at 537 (overturned, but supported on this point by the Court of Appeal, (1993) 5 W.W.R. 97 at 922): 'The parties have concentrated for too long on legal and constitutional questions.... Important as these questions are, answers to legal questions will not solve the underlying social and economic problems which have disadvantaged Indian peoples from the earliest times. It is my conclusion, reached upon a consideration of the evidence which is not conveniently available to many, that the difficulties facing the Indian populations of the territory, and probably throughout Canada, will not be solved in the context of legal rights. Legal proceedings have been useful in raising awareness about a serious national problem. New initiatives, which may extend for years or generations, and directed at reducing and eliminating the social and economic disadvantages of Indians are now required. It must always be remembered, however, that it is for elected officials,

16 Respondent's Factum 14 not judges, to establish priorities for the amelioration of disadvantaged members of society.... Clearly a new arrangement is required which should be discussed between both levels of government and with the lndians other than in the context of land claims. The first priority should be for the two communities to find what they expect of each other. In a successful, ongoing relationship, there must be performance on both sides." 39. This is in part what the Governor in Council has attempted to do with respect to the enactment of the ACFLR. What the Appellants are seeking to do on the other hand is to have the Court second guess the decision by the Governor in Council to enact regulations to better address these difficult problems facing members of aboriginal society. In other words, the Appellants are telling this Court that they know better than the Governor in Council who has been given by Parliament the responsibility to enact regulations to better manage and conserve the fishery. This, it is submitted, this Honourable Court lacks the jurisdiction to do. Oakwood Development v. St.Francis Xavier, [I98516 W.W.R. 147 at 157 (S.C.C.) 40. As the Supreme Court of Canada in Opetchesaht Indian Band v. Canada, [I S.C.R. 119, (1997), 147 D.L.R. (4'7 I made clear, at page 23, in interpreting statutes relating to Indians, ambiguities and doubtful expressions should be resolved in favour of lndians. The Supreme Court has also made this point in a number of other cases including Nowegijck v. The Queen, ( S.C.R. 29, 144 D.L.R. (3d) 193 and in Mitchell v. Peguis lndian Band, [I99012 S.C.R. 85, 71 D.L.R. (4") 193, where the Court made it clear that the interpretation of legislation should be interpreted so as to assist aboriginal people not only in cases involving the Crown and native peoples but also in respect to Canadian society at large, which in the opinion of the Court bore the historical burden of the current situation of natives peoples. As a result, a liberal interpretation approach applies to any statute relating to lndians, even if the relationship affected is a private one. 41. The interpretation of regulations are governed by the same principles of interpretation as are applicable to statutes. See Cote, The Interpretation of Leqislation in Canada, Second Edition, 1992, page This approach has been applied particularly in relation to fisheries matters.

17 Respondent's Factum This Court in R. v. Nikal (1993), 80 B.C.L.R. (2d) 245 (conviction overturned by the Supreme Court of Canada (1996), 144 D.L.R. (4'" 658, with the majority of the Supreme Court agreeing with the Court of Appeal that a licensing requirement was not a prima facie infringement of an aboriginal right) characterized the power of the Minister to issue or authorize the issuance of fishing licences under section 7 of the Fisheries Act at page 257 as: "Licensing is a natural part of a centralized scheme to manage fisheries in order to ensure conservation and to achieve a proper allocation of the resource. It is a simple means of determining where and by whom fishing is done... it is a small part of the regulation of fishing." 44. At page 279, the Court of Appeal continued in commenting on the system of regulation of the salmon fishery as follows: "That system must be controlled, in my opinion, by one single organization with power to make decisions for the whole length of the river system and at sea, so as to control conservation of the resource throughout the system and that body should consult with all users of the resource throughout the system to endeavour to secure a consensus and voluntary compliance with agreed or otherwise fairly determined conservation goals." 45. At the same time, the Supreme Court of Canada held in R. v. Adams, [I S.C.R. 101, (1996) 138 D.L.R. (4'" 657, Marshall v. R. (1999), 177 D.L.R. (4m) 513 (Marshall No. 1) at paragraph 64, and in Marshall No. 2, supra, at paragraph 33, that in light of the Crown's fiduciary obligations to aboriginal peoples. Parliament must ensure that any licensing scheme that is created does not interfere with aboriginal rights. The Appellants' Regulatory Argument 46. The Appellants are also quite wrong to suggest that the Minister is attempting to amend the Pacific Fishery Regulations, 1993, given that those regulations set up a completely different administrative scheme from the ACFLR. What the Appellants' argument amounts to is simply this, the Appellants submit that the Minister should not be given such broad powers under the ACFLR to issue licences to aboriginal people, because in their view it is unfair, because it permits aboriginals to sell fish under the ACFLR without being required to be licensed under the Pacific Fishery Regulations, It is submitted that such an argument is a political argument and not a legal argument. 47. In respect to paragraph 4 of the Appellants' Statement of Facts, there is nothing in the Fisheries Act or in the Pacific Fishery Regulations, 1993 which prevents the Governor in

18 Respondent's Factum 16 Council from making regulations permitting aboriginal people to fish and to sell those fish as provided under the ACFLR. This is completely in accord with section 7 of the Fisheries Act which gives the Minister a very broad discretion to issue licences and by virtue of section 43 permits'the Governor in Council to make regulations relating to the fishery. 48. It is clear from an examination of the regulatory regime under the Fisheries Act and its regulations that the Appellants' argument that the ACFLR is invalid insofar as it is inconsistent with the Pacific Fishery Regulations, 1993 is wrong in law for several reasons. 49. First, there is no legal requirement imposed under the Fisheries Act or the Pacific Fishery Regulations, 1993 or any other regulation that all commercial activity must be authorized under the Pacific Fishery Regulations, In fact, s. 26 of the Pacific Fishery Regulations, 1993 provides that the ACFLR and the Fishery (General) Regulations (Appendix "D, Appellants' Factum) also permit commercial fishing. This is in fact also confirmed by subsection 35(2) of the Fishery (General) Regulations. 51. Section 26 of the Pacific Fishery Regulations, 1993 provides as follows: "26(1) Subject to subsection (Z), no person shall fish except under the authority of a licence issued under these Regulations, the Fishery (General) Regulations or the Aboriginal Communal Fishing Licences Regulations. (2) Subsection (1) does not apply to a person who is registered and who is engaged in commercial fishing for a species of fish from a registered vessel that is authorized by a commercial fishing licence to be used in fishing for that species." 52. Second, subsection 35(2) of the Fishery (General) Regulations, specifically contemplates that the commercial sale of fish can be undertaken pursuant to the ACFLR or pursuant to the Pacific Fishery Regulations, 1993 or pursuant to Part VII of the Fishery (General) Regulations. Subsection 35(2) of the Fishery (General) Regulations provides: "Subject to subsection (3), no person shall buy, sell, trade, barter or offer to buy, sell trade or barter any fish unless it was caught and retained under the authority of a licence issued for the purposes of commercial fishing, a licence issued under Part VII, a licence issued under the Aboriginal Communal Fishing Licences Regulations in which the Minister has authorized sale of fish or an Excess Salmon to Spawning Requirement Licence issued under the Pacific Fishery Regulations, 1993."

19 Respondent's Factum Under Part V11 (ss 50 to 53) of the Fishery (General) Regulations licences can be issued for experimental, scientific, educational or public display purposes. Again, the sale of fish can take place under these regulations. 54. Third, ss. 4 and 5(1)(1) of the ACFLR also authorizes the sale of fish. 55. Fourth, neither the ACFLR or the Pacific Fishery Regulations, 1993, nor any other Fisheries Act regulations even define commercial fishing. It follows therefore that it was never intended that the Pacific Fishery Regulations, 1993 are the only regulations that authorize commercial fishing. 56. The Appellants are also wrong in suggesting at paragraphs 19 and 20 of their argument that s. 6 of the ACFLR gives the Minister the power to grant exemptions and amend the Pacific Fishery Regulations, Instead the Governor in Council is simply saying that in case of a conflict between the ACFLR and other Fisheries Act regulations, the ACFLR prevail. 57. The Appellants also appear to be submitting that the general commercial regulations, the Pacific Fishery Regulations, 1993, should be read by implication as repealing the more specific regulations, namely the ACFLR, on the ground that they are inconsistent with each other. The law, however, is clear that repeal by implication is not favoured by the Courts and in any event the more specific regulations should override the more general regulations. Re: B.C. Teachers'~ederation'(l985) 23 D.L.R. ( (B.C.C.A.) Driedger, Construction of Statutes (3d ed., 1994, by Sullivan), at pp Maxwell, On The Interpretation of Statutes (12'~ ed., 1976, by Langan), at pp In response to paragraphs 19 and 20 of the Appellants' Argument, it is important to recognize that the Supreme Court of Canada has held on numerous occasions and in particular with respect to the Fisheries Act and the s. 43 regulation-making power under the Fisheries Act, that the Governor in Council has been validly given the authority by Parliament to make regulations respecting the issuance of licences. All that the ACFLR does is to confer on the Minister the power to issue communal licences and to specify in those licences conditions respecting, inter alia, the method of designation of persons by the licence holder. When the aboriginal organizations designate which persons will actually fish, they do not exercise a sub- delegative power, but rather exercise the authority conferred directly on them by the ACFLR. It is only when this two-step process is completed that the licence will be effective.

20 Respondent's Factum 18 Peralta v. Ontario (1 985), 49 O.R. (2d) 705) (Ont. C.A.); appeal dismissed S.C.C. (1988), 56 D.L.R. (575) 59.!t must be remembered that there is no rule or presumption for or against sub- delegation. In determining whether or not the Governor in Council has the authority to delegate to the Minister certain powers relating to ACFLR licences, it is necessary to determine whether or not the language of the statute gave the Governor in Council the necessary authority. In this case, there is no question that pursuant to section 43 of the Fisheries Act, Parliament gave the Governor in Council the authority to make the ACFLR for the proper management and control of the sea-coast and inland fisheries, including permitting the Minister to issue a communal licence to an aboriginal organization. See also: Reference re: Regulations in Relation to Chemicals, SCR 1 The Minister is entitled to issue licences under the ACFLR even where no Aboriginal Right to fish commercially exists in law 60. The Appellants incorrectly refer to the ACFLR as a section 35 Constitution Act, 1982 fishery at paragraph 3 of their Statement of Facts. This submission assumes that the ACFLR are "rights" based. In fact, the ACFLR are not "rights" based and do not require judicial recognition of an aboriginal right. The ACFLR simply authorize the Minister to issue licences under those regulations in his discretion subject to certain conditions. This is expressly set out in these types of licences, e.g., see Exhibit 4, second paragraph, A.B., p 21 and see pp 22 to 26. See also paragraphs 21 to 34 of the Appellants' argument. 61. It must be recognized that pursuant to section 7 of the Fisheries Act, the Minister has an absolute discretion to grant fishing licences. A fishing licence is merely a privilege to participate in a fishery for the duration of a licence. It does not create rights. There is no automatic right of renewal of these licences. The licence that was adduced as evidence in this case was issued on May 28, 1998 and expired on August 9, 1998 or earlier if DFO, after consultation with the First Nations, has determined that the maximum quantity has been reached. See Exhibit 4 Aboriginal Communal Fishing Licence for Tseshaht and Hupacasath Indian Bands for Salmon A.B., pages 21 and 22 and page 26. Re: Bennen (1998), 29 B.C.L.R. (2d) 346 at 350 (B.C.S.C.); Joys v. Minister of National (1 996), I28 D.L.R. (4M) 385 at 394 (F.C.A.); and Joliffe v. The Queen. [I F.C at 520 (F.C.T.D.).

21 Respondent's Factum 19 Issue II: Dispensation 62. The Appellants seek to characterize the charges against them as the manifestation of a DFO eriforcement policy which "dispenses with the application of the rule of law" in favour of aboriginal fishers. Yet the evidence of Mr. Martinolich demonstrated that it was DFO policy to enforce the law as set out in the Fisheries Act and the Regulations with respect to both aboriginal and non-aboriginal people. 63. The evidence of Mr. Martinolich established that aboriginal people who were not authorized to fish under licences issued pursuant to the Fisheries Act or the Regulations including the ACFLR or who did not adhere to the terms of their licences or other statutory requirements were in fact prosecuted. However, if someone designated to fish under a communal licence issued pursuant to the ACFLR did so in compliance with the terms of the licence, there would be no reason to charge him or her, and accordingly no enforcement action would be taken. 64. The DFO enforcement policy impugned by the Appellants was therefore nothing more or less than a policy to implement and enforce the licensing regime established by the combined operation of the Fisheries Act, the Pacific Fishery Regulations, 1993, the Fishery (General) Regulations, and the ACFLR. Thus, while the Appellants are at pains to attribute the differential treatment of aboriginal and non-aboriginal fisheries to departmental policy, in an effort to classify these differences as a function of dispensation by executive action, the Appellants in actuality take issue with the breadth of the Minister's licensing powers under the Fisheries Act and the way in which the Minister exercised those licensing powers under the ACFLR. 65. The Appellant asks this Court to apply the principles enunciated in R. v. Catagas (1977), 38 C.C.C. (2d) 296 (Man. C.A.) to find that the DFO enforcement policy in the instant case amounted to a form of unlawful dispensation. In R. v. Catagas, the accused was an Indian charged with a violation of the Migratofy Birds Convention Act. The accused applied for a stay of proceedings because the government of Manitoba had adopted a formal policy not to prosecute Indians for violations of the Act. The Court declined to grant the accused a stay of 'proceedings, finding that the executive did not have the power, except as allowed by statute, to dispense with the law in favour of a particular group.

22 Respondent's Factum R. v. Catagas, supra, is distinguishable from the instant case on a number of bases, not least of which is the fact that Catagas involved a consideration of the validity of a departmental policy respecting enforcement of the law, whereas the case at bar relates to the exercise of a statutory licensing power. The rule against dispensation enunciated in Catagas prohibits executive action which would serve to countenance distinctions not contemplated by the law. It has no application to cases in which the law itself creates a distinction, which someone wishes to categorize as unfair. 67. In the case at bar there is no "dispensation with the law" by way of executive action. The DFO policy impugned by the Appellants is simply a reflection of the licensing regime established by the Fisheries Act and the Regulations promulgated thereunder. Issue Ill: Abuse of Process The Standard for Abuse of Process 68. As set out in R. v. Power (1994), 89 C.C.C. (3d) 1, the residual discretion to remedy an abuse of process is to be exercised only in the "clearest of cases" where the conduct in issue "shocks the conscience of the community". Such cases will be extremely rare. In the Respondent's submission, the Provincial Court Judge erred in holding that the decision to continue with the prosecution of the Appellants following the ruling in R. v. Cumminq supra, constituted an abuse of process warranting a stay of proceedings. The Cummins Decision 69. Thomas, P.C.J. found the prosecution of the Appellants to be an abuse of process because 'The D.F.O. has chosen to disregard the law as stated in R. v. Cummins, supra". In Cummins, supra, the accused raised the validity of the ACFLR as a "defence" to charges of fishing during a closed time but was nonetheless convicted. Thus, while Thomas P.C.J. expressed the view in Cummins that the ACFLR were void and of no force and effect, his comments in this respect were quite clearly obiter dicta. The Crown, having succeeded in its case against Cummins to the extent that he was convicted of the offences charged, was not in a position to appeal from and challenge the correctness of the opinions expressed by Thomas P.C.J. in Cummins. 70. It is submitted that the Provincial Court Judge erred in concluding that the "DFO has chosen to disregard the law as stated in R. v. CumminS'. As Thomas P.C.J. noted in the course

23 - Respondent's Factum p~ ~ ~ p ~ ~ -- ~ p - ~ ~ of his reasons for judgment in Cummins, even if the ACFLR were a nullity to the extent that they authorized commercial aboriginal fishing, the legal significance of that finding was to the effect that?he fishery was not open to anyone, except aboriginals exercising their right to take fish for food, sdcia~ or ceremonial purposes, and was otherwise closed". The invalidity of the ACFLR therefore had no bearing upon the guilt or innocence of Mr. Cummins. It follows that the invalidity of the ACFLR would have no bearing upon the guilt or innocence of the Appellants. Selective Prosecution and Dispensation 71. The Appellants assert that it is an abuse of process for the Crown to prosecute them while at the same time "dispensing with the application of the rule of law" with respect to those permitted to fish under the authority of the ACFLR. In the Respondent's submission the Crown is merely enforcing the law as it is set out in the Fisheries Act and the Regulations. There was no evidence before the trial judge that the Crown failed to enforce the law or failed to prosecute anyone liable to prosecution. 72. In the alternative, if this Court finds that the Crown through enforcement of the licensing regime set out in the Fisheries Act and the Reguletions has somehow dispensed with the law in favour of aboriginal commercial fishers, the Respondent's position is that, absent evidence of bad faith or improper motives, such a practice cannot have any bearing upon the prosecution of the Appellants. In the Respondent's submission, an abuse of process cannot be founded on the non-prosecution of others for offences similar to those alleged against the accused. R. v. Simon (1992), 54 O.A.C. 398; R. v. Johnstone, [I9961 O.J. No (Ont. Gen. Div.); and R. v. Shoppers Morfgage and Loan Corp., [I 9871 O.J. No (0nt.Dist.Ct.) 73. R. v. Catagas, supra, does not assist the Appellants because the Court held in that case that a departmental policy purporting to dispense with the law as it related to members of certain Indian bands was null and void and accordingly could not be relied upon by an Indian in defence to the charges against him. There was no suggestion in Catagas that it would be in any way improper to prosecute non-indians who were not included in the (legally unenforceable) dispensation policy. 74. In R. v. Simon, supra, the accused was charged with trafficking of narcotics. He sought disclosure of material relating to a confidential informant in order to pursue an argument that the charges against him should be stayed because the Crown used information supplied by another

24 Respondent's Factum 22 drug trafficker in order to build the case against him. The accused intended to argue that it was an abuse of process to prosecute him because the confidential informant who had provided information against him was a higher level drug dealer. The Ontario Court of Appeal ruled that the trial' judge was correct in refusing disclosure because there was no basis on which the argument advanced by the accused could succeed. The Court noted at p. 399, paragraph 4 "It is well recognized that the doctrine of abuse of process serves to check the unfettered use of any and all investigative techniques in order to suppress crime. It is equally clear that the doctrine is carefully circumscribed and does not give the courts a general supervisory power to prevent prosecutions which the courts regard as somehow inappropriate or ill-advised. 75. In R. v. Johnstone, supra, the accused was charged with obtaining sexual services of a person less than 18 years of age. The accused applied for a stay of proceedings, arguing that the provision pursuant to which he was charged was laxly enforced and that others had not been prosecuted. After referring at length to the comments of L'Heureux Dube J. in R. v. Power, supra, Then, J. stated (at para. 23): "It is troubling that the police have not appeared, on the evidence, to be vigorous in enforcing 212(4). However, it does not follow that even if the police have turned a blind eye to this offence in the past, and even if such conduct can amount to neglect of duty, that such police conduct can vitiate the present charges unless it can be shown that the present charges have been laid in bad faith or for improper motives. This, in my opinion, has not been shown. Nor has an improper or discriminating exercise of discretion been demonstrated by the fact that other prominent citizens, who have been implicated, have as yet not been charged." 76. Finally, in R. v. Shoppers Mortgage and Loan Corp., supra, the accused company was acquitted of charges of failing to file annual statements under legislation governing financial institutions in the province. The trial judge found, inter alia, that the lax enforcement of the legislation in the past had lulled the accused company into thinking it was not obliged to file its statements in a timely fashion. In allowing a Crown appeal, Hoilett D.C.J. stated '?he law is clear that the lax, or indeed even the discriminatory, enforcement of a public statute does not provide a defence to a charge laid under the relevant statute". After considering the Manitoba Court of Appeal decision in Catagas, supra, Hoilett D.C.J. concluded: "It follows from the foregoing that the Crown's failure to prosecute in a given set of circumstances cannot be the basis for estopping it from prosecuting in other but similar circumstances. The reason for that is clear, because, the argument, taken to its logical conclusion would mean that the Crown's failure to prosecute one murderer, for whatever reason, would constitute a defence to another person charged with murder."

25 Respondent's Factum In R. v. Shoppers Mortgage and Loan Corp, supra, reference was made to the Supreme Court of Canada decision in Polai v. City of Toronto (1973), 28 D.L.R. (3d) 639. The Polai case involved an action by City of Toronto seeking to enforce a by-law against the defendant by way of an injunction. The trial judge dismissed the City's action because there was evidence that the by-law in question was infrequently enforced, and that the city maintained a secret "deferred list" of individuals who were in violation of the by-law but against whom no action had been taken. When the matter reached the Supreme Court of Canada, Judson J. found that the trial judge was in error in dismissing the City's action on the basis of "lax enforcement". His Lordship was firmly of the view that the City's failure to consistently enforce the by-law did not afford a defence. See also Burnaby (City) v. Pocrnic, [I 9991 B.C.J. No (C.A.) No Allegation of Bad Faith 78. The Appellants, in seeking a judicial stay of proceedings following Thomas P.C.J.'s ruling in R. v. Cummins, supra, in essence challenged the Crown's decision to proceed with the prosecution of the Appellants notwithstanding Thomas P.C.J.'s comments regarding the invalidity of the ACFLR. In R. v. Power, supra, L'Heureux Dube J., speaking for the majority of the Court, stressed that caution should be exercised in scrutinizing the decisions of the Crown in the exercising its prosecutorial discretion (at p. 10 C.C.C.): "... the Attorney General is a member of the executive and as such reflects, through his or her prosecutorial function, the interest of the community to see that justice is properly done. The Attorney General's role in this regard is not only to protect the public, but also to honour and express the community's sense of justice. Accordingly, courts should be careful before they attempt to "second-guess" the prosecutor's motives when he or she makes a decision. Where there is conspicuous evidence of improper motives or bad faith or of an act so wrong that it violates the conscience of the community, such that it would be genuinely unfair and indecent to proceed, then, and only then, should courts intervene to prevent an abuse of process which could bring the administration of justice into disrepute." 79. There is no suggestion or evidence in the case at bar that the Crown acted in bad faith in proceeding with the charges against the Appellants. Nor could it be said that the failure to prosecute others who the Appellants say are not authorized to fish violates the conscience of the community. Public Interest in Continued Enforcement of the Fisheries Act

26 Respondent's Factum The Respondent submits that there is a real public interest in proceeding with charges against the Appellants notwithstanding Thomas P.C.J.'s obiter comments in R. v. Cummins, supra. The Appellants ask this Court to affirm the Provincial Court Judge's conclusion that the prosechion of the Appellants "violat[ed] the conscience of the community". This would imply that Thomas P.C.J.'s comments in R. v. Cummins, supra respecting the invalidity of the ACFLR somehow rendered unenforceable the entire licensing regime established under the Fisheries Act. In the Respondent's submission, a trial judge's obitercomments with respect to the validity of a licensing scheme of specific application to one group of fishers should not give rise to a situation in which the Crown is precluded from enforcing a licensing regime of general application in respect of all other fishers. 81. Courts have ruled in the past that the mere fact that the constitutionality of a particular legislative provision has been put in issue in one proceeding does not mean that the state is prohibited from enforcing that law until such time as its constitutionality has been determined. For example, in Morgentaler v. Ackroyd (1983), 42 O.R. (2d) 659, the applicants sought an order declaring the abortion provisions in the Criminal Code unconstitutional. The applicants applied for an interim injunction prohibiting the police from investigating any offences under the impugned provision of the Code until their action was resolved. Linden J., applying the three part test for interim injunctive relief, concluded that on balance it would not be appropriate to grant the order sought. In doing so, his Lordship had occasion to comment upon the public interest in enforcing the law as it then stood: It is contended in this application that the courts should halt all prosecution (and even investigation) of alleged offences under s. 251 pending the final resolution of the constitutional issue. Such a step would grant to potential offenders an immunity from prosecution in the interim and perhaps forever. In the event that the impugned law is ultimately held to be invalid, no harm would be done by such a course of conduct. But, if the law is ultimately held to be constitutional, the result would be that the courts would have prohibited the police from investigating and prosecuting what has turned out to be criminal activity. This cannot be. For example, let us assume that someone challenged the constitutional valdity of the Narcotic Control Act, R.S.C. 1970, c. N-1, and sought an injunction to prevent the police from investigating and prosecuting that person for importing and selling narcotics pending the resolution of the litigation. If the court granted the injunction, the sale of narcotic drugs would be authorized by court order, which would be most inappropriate if the law is later held to be valid. 82. The Federal Court of Appeal made similar comments in dealing with an application for injunctive relief in Pacific Trollers Association v. Attorney General of Canada, [I F.C. 846