Source: CanLII

Citation: R. v. Rebmann (R.) et al.
Date: 1994-09-08
Docket: Nos. 19936204, 19936241

Between:
Her Majesty the Queen (Prosecution)
and
Roger Rebmann, of St-Pierre et Miquelon, Jacky Serge-Fernant Basle, of St-Pierre, Albert Pen, of St-Pierre et Miquelon, Gérard Grignon, of St-Pierre, Jean-Louis Audoux, of St-Pierre et Yvon Dodeman, of St-Pierre (Accuseds)

Roberts, J.

Counsel:
Danielle Côté and Gordon McNab, for the Crown;
André Richard and Kenneth Templeton, for the accused.

[1] Roberts, J.: The accused were charged pursuant to the Coastal Fisheries Protection Act and were accused of contravening s. 4(1)(a) of this Act. The text of s. 4(1)(a) is the following:

4 (1) No person, being aboard a foreign fishing vessel or being a member of the crew of or attached to or employed on a foreign fishing vessel, shall in Canada or in Canadian fisheries waters

(a) fish or prepare to fish,

…

unless authorized by this Act or the regulations, any other law of Canada or a treaty.

[2] More specifically, the accused were charged with fishing unlawfully in Canadian waters in zone 3PS. By virtue of article 4(1)(a) of the Coastal Fisheries Protection Act it is illegal to fish in Canadian waters without an authorization as provided by the said Act, its regulations, any other law of Canada or a treaty. The accused argue in defence of this accusation that a treaty provided an authorization to fish. The treaty to which they refer is the Agreement between Canada and France on their Mutual Fishing Relations which signed and ratified on March 27, 1972.

[3] The defence's reliance on this treaty in defence results in several disputed issues, such as:

• (a) Does the traditional Canadian position on the applicability of treaties on domestic law allow for the invocation of the Treaty of 1972 in the present case?;
• (b) Alternatively can the Treaty of 1972 be invoked and applied by the court for other reasons in the present case?;
• (c) If the Treaty of 1972 is applicable, what principles of interpretation should the court apply to interpret it in Canadian domestic law?; and
• (d) Can the accused rely on the rights proscribed by the Treaty of 1972?

[4] Additionally, the accused raise the issue of the illegal delegation of power to set fishing quotas to demonstrate that in this case, the legal restrictions on fishing are not valid.

[5] Finally, the accused raise the issue of abuse of process in light of Canadian governmental actions on fishing quotas, international obligations of Canada and the events leading up to the indictment.

[6] The accused and the Crown agreed on the chronology and detail of the events which took place from January 7, 1993 to the change in venue on October 1, 1993. Their “Admissions” was filed at the beginning of trial and is reproduced below:

[TRANSLATED]

1. On January 7, 1993 around 9:00 AM, the French trawlers Marmouset and Goélette left the port of the Island of St. Pierre;
2. These two trawlers, less than 50 metres in length, were registered in St. Pierre and bore, respectively, registration numbers 341.148 and 521.701;
3. The two trawlers wee followed by Canadian Coast Guard vessels Cape Roger and Léonard J. Cowley;
4. The two trawlers were sailing to the west towards Canadian fisheries waters (fishing zone) and entered said Canadian fishing waters around 1:19 PM;
5. The two trawlers placed their fishing nets into the water around 4:00 PM on January 7, 1993;
6. The place where the said fishing nets were placed into the water is situated within twenty (20) nautical miles inside Canadian fisheries waters (fishing zone);
7. Around 4:20 PM on the same date, a fishing warden aboard the Leonard J. Cowley communicated to the French trawlers, in French and in English, ordering them to stop their vessels and to pull up their nets;
8. The French trawlers did not respond to the orders from the fishing warden;
9. Around 6:50 PM on January 7, 1993, fishing wardens from the Canadian Coast Guard vessels boarded the French trawlers Marmouset and Goelette. At this point, the two French trawlers were at least twenty nautical miles within Canadian fisheries waters (fishing zone) and their fishing nets were in the water. The trawlers were stopped and their engines no longer functioned;
10. The fishing wardens asked the captain of each ship to identify themself but no one did so. The men who seemed to be charge of the operation indicated that they had no intention of identifying a captain;
11. Before the refusal to identify the captain, the fishing wardens ordered everyone out of the wheelhouse;
12. The fishing wardens ordered the crew to pull up their nets and proceed to the port of St John's, Newfoundland; they refused;
13. A Coast Guard engineer inspected the two trawlers' engines but was unable to get them to start;
14. The fishing wardens then informed the crew that if they did not start the boats' engines and pull up the fishing nets, the nets would be cut;
15. The crew of the two boats continued to refuse to pull up the fishing next and on January 8, 1993 around 6:00 PM , Canadian authorities officially took charge of the boats, had the fishing nets cut and left them floating in the water. The boats were then towed to St. John's, Newfoundland by the Canadian Coast Guard vessels. The Cygnus, also a Canadian Coast Guard vessel, remained at the location where the fishing nets were;
16. On January 9, 1993 around 8:00 AM, the trawler Newfoundland Eagle arrived at the fishing nets' location and began to retrieve the said fishing nets;
17. Around 5:00 PM, the operation to retrieve the fishing nets of the two French trawlers was completed and the Newfoundland Eagle returned to Fortune, Newfoundland with the said nets on board. Upon their arrival at port, the fish contained in the nets were removed and the nets were placed in a secure location. The total weight of the fish was around 4500 pounds;
18. Even though they were previously informed of the reasons of their arrest, on January 10, 1993 around 12:00 PM, upon the arrival of the French trawlers at the port of St. John's, Newfoundland, the crew was re-informed that they were accused of contravening s. 4(1)(a) of the Coastal Fisheries Protection Act;
19. The accused did not hold Canadian licenses pursuant to the Act or the Canadian Regulations authorizing them to fish at that location;
20. The accused appeared before the Provincial Court in St. John's on January 11, 1993 and elected to be tried by a judge of the Supreme Court of Newfoundland. The preliminary inquiry was set for April 20, 1993.
21. On January 14, 1993, the accused were released by the Honourable Justice Rorke, judge of the Provincial Court, on a personal undertaking of $10,000 each. Rorke J. also ordered the release of the two French trawlers upon the production of a surety, by the owners, representing the value of the two vessels;
22. On April 20, 1993, the accused waived their right to a preliminary inquiry through their counsel. Arrest warrants were issued for the accused to avoid a loss of jurisdiction;
23. On April 21, 1993, an order for a French-language trial pursuant to s. 540 of the Criminal Code was pronounced;
24. On October 1, 1993, an order for change of venue was pronounced so that the trial of the accused would take place in Gander, Newfoundland.

[7] It suffices to say that since the the Agreement of 1972, there has been a good number of disputes between Canada and France on the interpretation of the Agreement and the allocation of quotas, and when then parties were unable to agree, they took resorted to arbitration. Additionally, on March 30, 1989, Canada and France referred a question on the maritime border between the two countries to arbitration by consent. The arbitrator rendered their decision on June 10, 1992. This decision did not make any conclusions on the allocation of quotas and did not affect fishing rights proscribed by the Agreement of 1972. Nevertheless, the arrangement on allocations that was in place between 1989 and 1992, following the Iglesias mediation, was coming to its end. Therefore, following the publication of the June 10, 1992 decision, meetings took place between Canadian and French representatives to negotiate new quotas for the coming years but they were unsuccessful. In the autumn of 1992 and during the months of January and February 1993, the negotiations and exchange of diplomatic notes continued. The actions of the accused, as described above, began on January 7, 1993, the same day that the French government sent diplomatic note 75/DJ to the Canadian government, which reads:

[TRANSLATED]

“The Minister of Foreign Affairs sends his compliments to the Embassy of Canada and is honoured to refer to embassy's note no. 325 of December 22, 1992, as well as their note no. 2608/DJ of October 10, 1992.”

“The French authorities note that, as established by note no. 234 of October 9, 2022, the Canadian authorities have, on their own authority, have interrupted the bilateral negotiations which began in July 1992, and have purportedly unilaterally set quotas and fishing allocations for the benefit of French fishers. They were set, in the same note, without specific justification, with particularly low quotas, and are clearly inferior to those that were accepted over the course of the previous negotiations. They finally stated that such quotas would be subject to compliance with remarkable conditions.”

“The next day, through the aforementioned diplomatic note no. 2608/DJ of October 10, 1992, France rejected the Canadian 'decisions' and highlighted the three aspects, procedural (unilateral decision), substantial (extremely low quotas not based on specific justification) and imposed conditions, which are contrary to the Agreement of March 27, 1972 defining the rights and obligations of France and Canada in their conduct in fishing matters. The note from France concluded that in order to avoid the development of a contentious relationship between the two States, it was essential to pursue bilateral contact with the goal of reaching a mutually acceptable and fair agreement.”

“However, Canada has not found it appropriate to proceed in the proposed manner. By way of diplomatic note no. 270 of November 9, 1992, Canada revealed its arguments attempting the refute the analysis presented by France and did not envisage further contact between the two delegations to settle the issues other than that of the quotas.”

“Finally, on December 29, 1992 by way of its note no. 325, the Embassy of Canada gave notice of the Canadian plan for the management of bottom-dwelling fish of the Atlantic of 1993, which made clear the considerable reduction of taking authorized for French fishers, particularly in respect to the cod stocks in sector 3PS and the Gulf of Saint Lawrence.”

“Under these conditions, the French authorities, who maintain with integrity their legal positions previously outlined particularly in note no. 2608/DJ, can only note, with much regret, Canada's refusal to come back to negotiations, re-examine the criteria for allocating quotas and remove the unacceptable conditions imposed on said quotas. Therefore, they note that there is a dispute between France and Canada on the interpretation and application of the Agreement of March 27, 1972 and that this dispute cannot be resolved by way of negotiation since Canada has taken the initiative to interrupt them. The French authorities also note that a rapid resolution of this dispute is necessary in order to prevent its worsening and to re-establish the normal course of fishing relationships between the two States.”

“The French party has therefore decided to refer the present dispute to the Commission proscribed by article 10 of the Agreement of March 27, 1972 to resolve all the disputes pertaining to the application of this Agreement.”

“France recalls that, by way of a memorandum attached to a letter dated March 21, 1985 from the French Prime Minister to the Prime Minister of Canada, the French government has designated for a period of ten years Professor Jean-Pierre Quenedec as the national expert to serve on this Commission. The French authorities would be grateful to the Canadian authorities to know the name of their national expert who would serve on this Commission so that they are able to consider the current dispute as soon as possible. They are, furthermore, ready to meet with Canadian authorities as soon as possible to agree on a third expert, who must be a national of a third-party State.”

“The French authorities understand that this resolution of this dispute, pursuant to the procedure proscribed by article 10 of the Agreement of 1972, will take some time. However, the interruption of all fishing activities on the French archipelago until the settlement of the dispute is complete risks catastrophic repercussions in regard to the economic situation and society of the collectivity of Saint-Pierre and Miquelon. In addition, in order to safeguard the short-term fishing activities in Saint-Pierre and Miquelon and during the resolution of the current dispute, the French authorities are ready to define, in consultation with the Canadian authorities, and in reference to the quotas set by the Canadian plan for the management of bottom-dwelling fish of the Atlantic of 1993, the transitional and provisional arrangements which will allow French and Canadian fishers to carry out their work in the relevant sectors, while observing that the application of such arrangements will not prejudice the resolution of this dispute.”

“The Minister of Foreign Affairs takes this occasion to renew his assurance of his high regard for the Embassy of Canada.”

[8] Canada's response, by diplomatic note, number 045, is dated February 22, 1993:

[TRANSLATED]

“The Embassy of Canada presents its compliments to the Minister of Foreign Affairs and is honoured to refer to the Minister's note number 75/DJ dated January 7, 1993 concerning fishing relationships between Canada and France.”

“The Embassy would like to recall that Canada has the right to set, if necessary without France's agreement, the share and allocation of fish which France may benefit from in Canadian waters. Canada's decision of October 9, 1992 came following the failure of exhaustive consultations over the course of which the Canadian authorities spared no effort to come to an agreement. During the course of these consultations, the leader of the Canadian delegation raised, on an exploratory basis, the possibility of additional quotas which demonstrated Canada's willingness to establish a relationship of cooperation between the two countries in fisheries matters. The Canadian authorities regret that France chose not to follow this way.”

“The Canadian authorities highlight that article 2 of the Agreement of 1972 stipulates the engagement of the Canadian government, '[TRANSLATED] in the case of a change of legal framework in the waters situated outside the actual limits of the territorial seas and fishing zones of Canada off the Atlantic coast, to the recognize the right of French nationals to fish in these waters, subject to possible conservation measures, to establish quotas'. Additionally, article 2 specifies that '[TRANSLATED] the French government will engage on its side to provide reciprocal rights to Canadian nationals in the area of Saint-Pierre and Miquelon'. It follows from these stipulations that the Parties envisaged, in 1972, the possibility of significant changes to the rights of the coastal State and that they wanted, from this perspective, to preserve the right of each Party to access the other's waters. The establishment of quotas is explicitly reserved to the coastal State by the Agreement and Canada's right to set quotas in its waters is not affected at all by the Agreement.”

“The Canadian authorities note in this regard that the United Nations Convention on the Law of the Sea provides the coastal State sovereign rights on conservation and management of biological resources in its exclusive economic zone. The Agreement of 1972 does not impact these sovereign rights which are an integral part of customary international law and does not subordinate these sovereign rights to an international body.”

“In their note, the French authorities claim that 'there is a dispute between France and Canada on the interpretation and application of the Agreement of March 27, 1972'. Given that the Agreement makes the coastal State entirely responsible for the management of resources, including the establishment of quotas, the issue raised by the French note would not constitute a dispute between the Parties under article 10. As a result, the Canadian authorities cannot accept the French demand to refer this issue to arbitration as provided by article 10 of the Agreement of 1972.”

“The Canadian authorities note the importance that it places on cordial relations and good neighbourliness between the Atlantic region of Canada and Saint Pierre and Miquelon. They hope that the present difficulties can be quickly resolved in order to facilitate renewed cooperation between these neighbours.”

“The Embassy of Canada takes this occasion to renew its expression of distinguished consideration to the Minister of Foreign Affairs.”

[9] The tradition of French fishing at large and in the areas of the coasts of Newfoundland certainly has a long history. The French fishers were among the first to arrive in the area. Dr. J.K. Hiller, historian and professor at Memorial University, was qualified as an expert on behalf of the accused by the court and he confirmed the proposition in Dr. Frederick W. Rowe's work History in Newfoundland that described in a precise manner the quasi-exclusive dominance of the French in fishing in the 16th century. As described by Dr. Rowe and confirmed by Dr. Hiller, the fishing in that era took place around Newfoundland, including the the zone now known as 3PS. By virtue of the Treaty of Utrecht of 1713, St. Pierre and Miquelon were ceded to England. However, migratory fishing continued and continued to be important. With the Treaty of Paris of 1762 which ended the Seven Years' War between England and France, St. Pierre and Miquelon were returned to France. This return represented England's recognition of France's special status in this area. The fishing rights of the French in the region were subsequently recognized and amended, first by the Treaty of Versailles of 1783, then by the Convention of 1904 and finally by the Treaty of 1972.

Agreement of 1972¹⁾

Agreement between Canada and France on their Mutual Fishing Relations

THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF FRANCE,

HAVING REGARD to the fact that the Canadian Government has deemed it necessary, notably with a view to ensuring the protection of Canadian fisheries, to adopt certain measures relating to the delimitation of the territorial sea and the fishing zones of Canada,

CONSIDERING it desirable to adapt to present circumstances their mutual relations in fishery matters,

HAVE AGREED as follows:

ARTICLE 1

The Government of France renounces the privileges established to its advantage in fishery matters by the Convention signed at London, on April 8, 1904, between the United Kingdom and France. The present agreement supersedes all previous treaty provisions relating to fishing by French nationals off the Atlantic coast of Canada.

Article 2

In return, the Canadian Government undertakes in the event of a modification to the juridical regime relating to the waters situated beyond the present limits of the territorial sea and fishing zones of Canada on the Atlantic coast, to recognize the right of French nationals to fish in these waters subject to possible measures for the conservation of resources, including the establishment of quotas. The French Government undertakes for its part to grant reciprocity to Canadian nationals off the coast of Saint-Pierre and Miquelon.

Article 3

Fishing vessels registered in metropolitan France may continue to fish from January 15 to May 15 each year, up to May 15, 1986, on an equal footing with Canadian vessels, in the Canadian fishing zone within the Gulf of St. Lawrence, east of the meridian of longitude 61 degrees 30 mins. west, subject to the provisions of Articles 5 and 6.

Article 4

In view of the special situation of Saint-Pierre and Miquelon and as an arrangement between neighbours:

• (a) French coastal fishing boats registered in Saint-Pierre and Miquelon may continue to fish in the areas where they have traditionally fished along the coasts of Newfoundland, and Newfoundland coastal fishing boats shall enjoy the same right along the coasts of Saint-Pierre and Miquelon;
• (b) A maximum of ten French trawlers registered in Saint-Pierre and Miquelon, of a maximum length of 50 metres, may continue to fish along the coasts of Newfoundland, of Nova Scotia (with the exception of the Bay of Fundy), and in the Canadian fishing zone within the Gulf of St. Lawrence, on an equal footing with Canadian trawlers; Canadian trawlers registered in the ports on the Atlantic coast of Canada may continue to fish along the coasts of Saint-Pierre and Miquelon on an equal footing with French trawlers.

Article 5

French fishing vessels covered by the provision of Article 3 must not direct their fishing effort to the taking of species other than those which they have traditionally exploited in the five-year period immediately preceding this agreement, nor shall they substantially increase the level of such effort.

Article 6

1. Canadian fishery regulations shall be applied without discrimination in fact or in law to the French fishing vessels covered by Articles 3 and 4, including regulations concerning the dimensions of vessels authorized to fish less than 12 miles from the Atlantic coast of Canada.
2. French fishery regulations shall be applied under the same conditions to the Canadian fishing vessels covered by Article 4.
3. Before promulgating new regulations applicable to these vessels, the authorities of each of the parties shall give three months prior notice to the authorities of the other party.

Article 7

The French patrol vessel which usually accompanies the French fishing fleet may continue to exercise its functions of assistance in the Gulf of St. Lawrence.

Article 8

The line defined in the annex to the present agreement determines, in the area between Newfoundland and the islands of Saint-Pierre and Miquelon, the limit of the territorial waters of Canada and of the zones submitted to the fishery jurisdiction of France.

Article 9

No provision of the present agreement shall be interpreted as prejudicing the views and future claims of either party concerning internal waters, territorial waters or jurisdiction with respect to fisheries or the resources of the continental shelf, or the bilateral or multilateral agreements to which either government is a party.

Article 10

1. The contracting parties shall establish a Commission to consider all disputes concerning the application of this agreement.
2. The Commission shall consist of one national expert nominated by each of the parties for ten years. In addition, the two Governments shall designate by mutual agreement, a third expert who shall not be a national of either party.
3. If, in connection with any dispute referred to the Commission by either of the contracting parties, the Commission has not within one month reached a decision acceptable to the contracting parties, reference shall be made to the third expert. The Commission shall then sit as an arbitral tribunal under the chairmanship of the third expert.
4. Decisions of the Commission sitting as an arbitral tribunal shall be taken by a majority, and shall be binding on the contracting parties.

[10] The general rule is that a treaty entered into by Canada does not have application in domestic law unless incorporated by a federal or provincial law in accordance with their powers as prescribed by ss. 91 and 92 of the Constitution of Canada. J. Maurice Arbour summarized this principle in their work Droit international public (2d. edition), at page 85:

[TRANSLATED]

In Canada, a regularly-concluded treaty will not have force in domestic law until it is integrated by a law in the Canadian legal system.

[11] The author explains in further detail, at page 107:

[TRANSLATED]

A treaty that is duly signed and ratified by Canada binds Canada internationally without becoming a formal source of domestic law 'ipso jure'; in the case that the enforcement of the treaty requires legislative action, such as the modification of a previous law or the adoption of a new law, the treaty must be explicitly incorporated into Canadian domestic law by ad hoc legislation, called implementation legislation. It follows then that in the absence of confirmatory legislation, a treaty does not create rights or obligations for individuals in their dealings with each other or with the State.²⁾

[12] J. Maurice Arbour's theory of incorporation is based on several decisions, including the following:

Canada (A.G.) v. Ontario (A.G.), 1937 CanLII 362 (UK JCPC), [1937] A.C. 326 (C.P.), Lord Atkin wrote at page 347, “Within the British Empire there is a well-established rule that the making of a treaty is an executive act, while the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action.”

Arrow River and Tributaries Slide and Boom Co. Ltd. v. Pigeon Timber Co. Limited, 1932 CanLII 6 (SCC), [1932] SCR 495, Lamont J. wrote at page 510, “The treaty in itself is not equivalent to an Imperial Act and, without the sanction of Parliament, the Crown cannot alter existing law by entering into a contract with a foreign power.”

Francis v. The Queen, 1956 CanLII 79 (SCC), [1956] SCR 618, Kerwin J. wrote at page 621, “The Jay Treaty was not a Treaty of Peace and it is clear that in Canada such rights and privileges as are here advanced of subjects of a contracting party to a treaty are enforceable by the Courts only when the treaty has been implemented or sanctioned by legislation. … It has been held that no rights under a treaty of cession can be enforced in the Courts except insofar as they have been incorporated in municipal law.”

[13] Even though the Agreement of 1972 is not a part of domestic Canadian law, that is it was not implemented by legislative action, the accused submit that this Agreement does not affect existing rights or the rights of citizens and falls into the category of treaties called “prerogatives of the sovereign” which focus on external elements and does not require legislative action to take effect. In other words, they argue that this agreement, in consideration of its objective, its goal and its scope, can be relied on by Canadian courts without the formality of implementation legislation. The state of law in this regard was well-summarized by the Honourable Justice J.E. Read in International Agreements, 26 CBR 520, as cited by J.G. Castel in International Law (1976) at page 973. The author introduces the citation with this general declaration on the subject of implementation treaties in Canada:

Generally speaking, international agreements signed and ratified by Canada which are not self-executory cannot have the force of law until their provisions are implemented by federal or provincial legislation or by executive or administrative action.

He continues:

J.E. Read, op. cit., at 528-9 discusses the classification of international agreements with regard for the need for legislative action:

When an international agreement has been concluded, it is necessary to determine whether legislation is needed. For this purpose, agreements fall into three classes:

• (a) Agreements which do not affect private rights or interests either directly or indirectly, and which do not involve action beyond existing legal powers of the government or contravene existing laws, do not need to be implemented by legislation.
• (b) A second class of agreement requires legislation in order to give effect to their provisions. It includes agreements calling for action by the government, where the executive action called for is not covered by existing legal powers or where it would be contrary to existing law: e.g., a convention which the executive could not enforce without fines or imprisonment directed against individuals…. The class also includes agreements which involve provisions directly or indirectly affecting private rights and interests. The Halibut and Sockeye Salmon Treaties are good examples of this type.
• (c) The third class is doubtful. There is some authority for the proposition that Treaties of Peace, and Treaties akin to Treaties of Peace in that their object is to avert imminent war, may affect private rights without legislation. This proposition is doubtful; and, in recent times, treaties of this character have always been implemented by statute.

³⁾

[14] I do not accept the accused's position that the Agreement of 1972 does not affect the rights and obligations of Canadian citizens and therefore the said Agreement falls under the first category described by Professor Read. It is sufficient to consider the second sentence of article 2 of the Agreement: “The French Government undertakes for its part to grant reciprocity to Canadian nationals off the coast of Saint-Pierre and Miquelon. ” The Agreement of 1972 has a manifest impact on the rights of Canadian citizens based both on the rights of Canadians that France recognizes as well as the rights of the French nationals that Canada recognizes. For this reason the said Agreement is a treaty which requires legislative intervention to take effect in domestic law.

[15] In support of this conclusion, I reference again J.G. Castel's International Law at page 975, where he analyzed Arrow River:

The Supreme Court of Canada thus held that treaties to which Great Britain is a party are contracts binding in honour upon the contracting States, but do not as such affect the rights of individual subjects of Great Britain or any other British country. A treaty in itself is not equivalent to an Imperial Act, and, without the sanction of Parliament, the Crown cannot alter the existing law by entering into a contract with a foreign power. For breach of a treaty a nation is responsible only to the other contracting nation and its own sense of right and justice. Where, as here, a treaty provides that certain rights or privileges are to be enjoyed by the subjects of both contracting parties, these rights and privileges are, under our law, enforceable by the courts only if the treaty has been implemented or sanctioned by legislation, which alone can make it binding upon the subject. In the absence of such legislation, a treaty is ineffectual to impose any limitation upon the legislative power exclusively bestowed by the Imperial Parliament upon the Legislature of a province.⁴⁾

[16] The accused argue, in the alternative, that s. 4(1) of the Coastal Fisheries Protection Act constitutes an “umbrella” disposition and this article calls for the automatic application of all fishing rights treaties in Canadian law. However, the incorporation of a treaty into domestic law by umbrella disposition is extremely exceptional, as highlighted by C. Emmanuelli and S. Slosar in their article L'application et l'interprétation des traités internationaux par le juge canadien (1978), 13 RJT 59 at page 73, where they address unilateral incidental interpretation of incorporation of treaties in Canadian law:

[TRANSLATED] In certain cases, an international is simply proclaimed into force by a legislative provision; in such an exceptional case, the incorporation of the treaty is not accompanied by any interpretation of its terms. Thus, article 3 of the Extradition Act constitutes an umbrella disposition which applies all extradition treaties to which Canada is a party in Canadian law.

[17] The authors refer to article 3 of the Extradition Act, RSC 1970, c. E-21, provides:

In the case of any foreign state with which there is an extradition arrangement, this Part applies during the continuance of such arrangement; but no provision of this Part that is consistent with any of the terms of the arrangement has effect to contravene the agreement; and this Part shall be so read and construed as to provide for the execution of the agreement.⁵⁾

[18] One can immediately note the difference in specificity between s. 3 of the Extradition Act and s. 4(1) of the Coastal Fisheries Protection Act. It is clear that s. 4(1) needs to be much more specific for it accomplish what the accused want.

[19] I also do not accept the application of the principles of useful effect and respect for international obligations in this case. These principles cannot override the requirement of incorporation of a treaty into Canadian law.

[20] The principle of useful effect was explained by Pierre-André Côté in the work Interpretation des lois, (2d. ed.), at page 259:

[TRANSLATED] In reading the text of a law, one must assume that each term, each sentence, each section and each paragraph were written deliberately to produce a certain effect. A legislator is economical in their words; they do not 'speak to say nothing'.

[21] The principle of respect for international obligations was elaborated upon in Daniels v. White, 1969 CanLII 67 (SCC), [1968] SCR 517 at p. 541, by Pigeon J.:

I wish to add that, in my view, this is a case for the application of the rule of construction that Parliament is not presumed to legislate in breach of a treaty or in any manner inconsistent with the comity of nations and the established raies of international law. It is a rule that is not often applied, because if a statute is unambiguous, its provisions must be followed even if they are contrary to international law, as was recently said in Inland Revenue Commissioners v. Collco Dealings Ltd. [[1962] A.C. 1], where all relevant authorities are reviewed. In that case, the House of Lords came to the conclusion that the intent of Parliament was clear and unmistakable and, therefore, the plain words of the statute could not be disregarded in order to observe the comity of nations and the established raies of international law. However, the principle of construction was recognized as applicable in a proper case.

[22] Therefore, having profoundly considered all the arguments advanced by the accused regarding the incorporation of the Agreement of 1972 into domestic Canadian law, I am not convinced that this has occurred. I turn to the question of how to interpret this Agreement as it is, that is as a treaty not incorporated into domestic law.

[23] In Canada, the rules on the conclusion of treaties came directly from the United Kingdom. J. Maurice Arbour discusses this subject in Droit international public at p. 102:

However, the rules which prevailed in the English legal system on the conclusion of treaties were naturally imported through the succession of States, especially since the Canadian constitution was based on the same principles as that of the United Kingdom which invested in the Queen all the executive powers of Canada. Since English law was clear on this subject, that the conclusion of a treaty lies exclusively within executive powers, Canadian law integrates this principle without any difficulty.

[24] The basic principles of treaty interpretation were summarized by Lord Oliver of Aylmerton in J.H. Rayner Ltd. v. Dept. of Trade, [1989] 3 W.L.R. 969 (H.L.) at pp. 1001 and 1002:

It is axiomatic that municipal courts have not and cannot have the competence to adjudicate upon or to enforce the rights arising out of transactions entered into by independent sovereign states between themselves on the plane of interntional law. That was firmly established by this House in Cook v. Sprigg, [1899] A.C. 572, 578, and was succinctly and convincingly expressed in the opinion of the Privy Council delivered by Lord Kingsdown in Secretary of State in Council of India v. Kamachee Boye Sahaba (1859), 13 Moo. P.C.C. 22, 75:

The transactions of independent states between each other are governed by other laws than those which municipal courts administer; such courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may make.

On the domestic plane, the power of the Crown to conclude treaties with other sovereign states is an exercise of the Royal Prerogative, the validity of which cannot be challenged in municipal law: see Blackburn v. Attorney General, [1971] 1 W.L.R. 1037. The Sovereign acts

throughout the making of the treaty and in relation to each and every of its stipulations in her sovereign character, and by her own inherent authority; and, as in making the treaty, so in performing the treaty, she is beyond the control of municipal law, and her acts are not to be examined in her own courts:

Rustomjee v. The Queen (1876), 2 Q.B.D. 69, 74, per Lord Coleridge, C.J.

That is the first of the underlying principles. The second is that, as a matter of the constitutional law of the United Kingdom, the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties, as it is sometimes expressed, are not self-executing, Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation, so far as individuals are concerned, it is ‘res inter alios acta’ from which they cannot derive rights and by which they cannot be deprived of rights or subjected to obligations; and it is outside the purview of the court not only because it is made in the conduct of foreign relations, which are a prerogative of the Crown, but also because, as a source of rights and obligations, it is irrelevant.⁶⁾

[25] These principles were well-summarized by Lord Diplock in British Airways v. Laker Airways, [1985] A.C. 58 (H.L.), at pp. 85 and 86:

The interpretation of treaties to which the United Kingdom is a party but the terms of which have not either expressly or by reference been incorporated in English domestic law by legislation is not a matter that falls within the interpretative jurisdiction of an English court of law.

[26] However, these principles have exceptions as explained by Lord Oliver of Aylmerton in Rayner at p. 1002:

These propositions do not, however, involve as a corollary that the court must never look at or construe a treaty. Where, for instance, a treaty is directly incorporated into English law by Act of the legislature, its terms become subject to the interpretative jurisdiction of the court in the same way as any other Act of the legislature. Fothergill v. Monarch Airlines Ltd., [1981] A.C. 251 is a recent example. Again, it is well established that where a statute is enacted in order to give effect to the United Kingdom’s obligations under a treaty, the terms of the treaty may have to be considered and, if necessary, construed in order to resolve any ambiguity or obscurity as to the meaning or scope of the statute. Clearly, also, where parties have entered into a domestic contact in which they have chosen to incorporate the terms of the treaty, the court may be called upon to interpret the treaty for the purposes of ascertaining the rights and obligations of the parties under their contract: see, for instance, Philippson v. Imperial Airways Ltd., [1939] 332.

[27] Lord Oliver of Aylmerton continued on page 1003:

It must be borne in mind, furthermore, that the conclusion of an international treaty and its terms are as much matters of fact as any other fact. That a treaty may be referred to where it is necessary to do so as part of the factual background against which a particular issue arises may seem a statement of the obvious. But it is, I think, necessary to stress that the purpose for which such reference can legitimately be made is purely an evidential one. Which states have become parties to a treaty and when and what the terms of the treaty are are questions of fact. The legal results which flow from it in international law, whether between the parties inter se or between the parties or any of them and outsiders are not and they are not justiciable by municipal courts.

How this very limited competence of the court to take cognisance of and to construe treaty obligations entered into by the United Kingdom is to be applied in the context of the issues raised by these appeals is perhaps best dealt with as each separate issue falls to be considered.⁷⁾

[28] In my view, none of the exceptions which Lord Oliver of Aylmerton discussed apply in this case. Given that the Agreement of 1972 was not incorporated into domestic Canadian law, I am of the view that this court does not have the power to interpret it.

[29] The accused argue that the cod allocations which Canada offered to France were invalid due to their illegal foundation and consequently, there was no restriction on the right to fish for those concerned.

[30] The regulation of Canadian fisheries is based on s. 43 of the Fisheries Act, RSC 1985, c. F-14:

43. The Governor in Council may make regulations for carrying out the purposes and provisions of this Act and in particular, but without restricting the generality of the foregoing, may make regulations

• (a) for the proper management and control of the sea-coast and inland fisheries;
• (b) respecting the conservation and protection of fish;
• (c) respecting the catching, loading, landing, handling, transporting, possession and disposal of fish;
• (d) respecting the operation of fishing vessels;
• (e) respecting the use of fishing gear and equipment;
• (f) respecting the issue, suspension and cancellation of licences and leases;
• (g) respecting the terms and condition under which a licence and lease may be issued;
• (h) respecting the obstruction and pollution of any waters frequented by fish;
• (i) respecting the conservation and protection of spawning grounds;
• (j) respecting the export of fish or any part thereof from Canada;
• (k) respecting the taking or carrying of fish or any part thereof from one province to any other province;
• (l) prescribing the powers and duties of persons engaged or employed in the administration or enforcement of this Act and providing for the carrying out of those powers and duties; and
• (m) authorizing a person engaged or employed in the administration or enforcement of this Act to vary any close time or fishing quota that has been fixed by the regulations.

⁸⁾

[31] The accused submit that s. 43(m) applies in this case and that this article explicitly declares that it is the Governor in Council's power to set allocations of fish through regulations.

[32] According to the accused, the French right to fish in Canadian waters is regulated by the Foreign Vessel Fishing Regulations and on March 26, 1987, the Governor in Council modified this regulation, including article 10. Article 10 was removed and replaced by the following:

10. (1) The Minister may allocate a quantity of a species of fish in a stock area to a flag state on the basis of deliberations and agreements between Canada and the flag state.⁹⁾

[33] At the time of the alleged offence, the Minister of Fisheries and Oceans sent a diplomatic note to France which allocated 3,268 metric tons of cod to France, even though there was no agreement as required by the modified s. 10 of the Foreign Vessel Fishing Regulations. The accused allege that s. 10 constitutes an illegal sub-delegation of power to the Minister of Fisheries and Oceans since only the Governor in Council can set allocations through regulation as prescribed by s. 43(m) of the Fisheries Act. This article explicitly stipulates that the power to modify the allocations, the close time and the size or weight limits of fish may only be delegated by regulation to the persons mentioned by subsection (1) of article 43.

[34] In support of their position, the accused cite the latin doctrine delegatus non potest delegare“, that is an authority that is delegated power under the law cannot delegate this power.

[35] In response to the accused's argument, I will first say that I am of the view that the power to set quotas mainly comes from subsections (a) and (b) of article 43 of the Coastal Fisheries Protection Act. I agree with the Crown that the sole function of subsection (m) is to allow for the nomination of individuals who would be authorized to modify the quotas that are allocated pursuant to subsections (a) and (b). Additionally, I agree with Cory J.'s statements in Re Shoal Lake Indian Band and the Queen (1979), 1979 CanLII 2040 (HCJ), 25 O.R.(2d) 334, at page 340:

It was argued that by s. 34(m) [now s. 43(m)] it was apparent that the scheme of the Act required the passage of a Regulation to fix quotas before 'some authorized person' could vary it. It was submitted that there could not be a variation of a Regulation without a Regulation. That argument cannot succeed.

The Fisheries Act contemplates means and methods of control distinct from and in addition to Regulations.¹⁰⁾

[36] In regards to section 10 of the Foreign Vessel Fishing Regulations, I also note that this section refers to the fixing of quotas when there is an agreement between Canada and the country of registration, something that doesn't exist in the present case.

[37] In general, I want to underline the distinction between administrative and legislative acts. This distinction was very-well described by S.A. de Smith and his explanation was adopted by the Court of Appeal for Ontario in Re Peralta et al. v. the Queen in Right of Ontario (1985), 1985 CanLII 3125 (ON CA), 16 D.L.R.(4th) 259, at page 283 D.L.R.:

A distinction often made between legislative and administrative acts is that between the general and the particular. A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; an administrative act cannot be exactly defined, but it includes the adoption of a policy, the making and issue of a specific direction, and the application of a general rule to a particular case in accordance with the requirements of policy or expediency or administrative practice.

[38] Furthermore, the interpretation that the powers proscribed ss. 43(a) and (b) are more administrative than legislative is the most plausible interpretation in the context of the administration of a government ministry like the Ministry of Fisheries and Oceans which is responsible for a vast and diverse set of issues and which must often make decisions with little delay. This ”[TRANSLATED] administrative necessity“ was recognized, for example, in Re Peralta, at page 271 D.L.R.:

… Parliament was ensuring that the Governor-in-Council was empowered to delegate to others the administration of its regulations. Accordingly, I differ from the view expressed by the Divisional Court judge that 'the clear intent' of Parliament was that the 'discretionary power' was entrusted to the Governor-in-Council and no one else. It is difficult to accept that Parliament intended that the Governor-in-Council administer in detail the myriad of situations existing across Canada from the suburban areas to the remote north.¹¹⁾

[39] In the same way, in his 1943 article Delegatus non potest delegare, 21 C.B.R. 257, Professor John Willis wrote at page 260:

Because, however, the courts will readily mould the literal words of the statute to such a construction as will best achieve its object; because they will, recognizing the facts of modem government, readily imply in an authority such powers as it would normally be expected to possess; because the presumptions of deliberate selection, strong when applied to the case of a principal who appoints an agent or a testator who selects a trustee, wears thin when applied to a statute which authorizes some governmental authority, sometimes with a fictitious name such as ‘Governor-in-Council’ or ‘Minister of Justice’, to exercise a discretion which everyone, even the legislature, knows will in fact be exercised by an unknown underling in the employ of the authority, the prima facie rule of 'delegatus non potest delegare' will readily give way, like the principles on which it rests, to slight indication of a contrary intent.

[40] Returning to Peralta, it should be noted that the power to sub-delegate the powers proscribed by paras. (a) to (k) of section 43 (formerly 34) was partially recognized by reason of the usage of the word “concernant” as opposed to “prescrivant”. On this subject, the court wrote at p. 271 D.L.R.:

… The word 'concernant' was also used to introduce the French version of s. 34(a) which reads in English 'for the proper management and control of the seacoast and inland fisheries'. In using the same word 'concernant' throughout, it reinforces my view that it was always the intention of Parliament that the Govemor-in-Council would have the power to subdelegate under para. 34(a) to (k), even though the word 'prescribing' was originally used in para. 34(g) and had to be changed.

The use of the word 'respecting' allows for a delegation of the administration of the regulations …

[41] In consideration of the above, I accept that the Minister of Fisheries and Oceans had the power to set quotas as it did in the fall of 1992.

[42] Finally, the accused argue that the Canadian government's actions on the granting of quotas, the negative Canadian response to the offer of arbitration pursuant to the treaty of 1972 and the present indictment constitute an abuse of process. By reason of this abuse of process, the accused argue that the court should order a stay of proceedings in this matter.

[43] First, it is clear that since R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128; 61 N.R. 159; [1985] 6 W.W.R. 127; 21 C.C.C.(3d) 7; 20 D.L.R.(4th) 651; 47 C.R.(3d) 193, this court does not have the jurisdiction to stay proceedings for an abuse of process. In Jewitt, Chief Justice Dickson, after summarizing the state of the law in this area, concluded as follows, at pp. 136 and 137 S.C.R.:

It seems to me desirable and timely to end the uncertainty which surrounds the availability of a stay of proceedings to remedy abuse of process. Clearly, there is a need for this Court to clarify its position on such a fundamental and wide‑reaching doctrine.

…

I would adopt the conclusion of the Ontario Court of Appeal in R. v. Young, supra, and affirm that 'there is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings'.¹²⁾

[44] However, Chief Justice Dickson added:

I would also adopt the caveat added by the Court in Young that this is a power which can be exercised only in the 'clearest of cases'. ¹³⁾¹⁴⁾

[45] Respecting this caveat highlighted by Chief Justice Dickson, Canadian courts have employed this power to stay proceedings with prudence.

[46] The applicable test was explained in another way by Heureux-Dubé J. in R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 SCR 1659, at page 1667 S.C.R.:

Under the doctrine of abuse of process, the unfair or oppressive treatment of an appellant disentitles the Crown to carry on with the prosecution of the charge. The prosecution is set aside, not on the merits (see Jewitt, supra, at p. 148), but because it is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court. The doctrine is one of the safeguards designed to ensure “that the repression of crime through the conviction of the guilty is done in a way which reflects our fundamental values as a society” (Rothman v. The Queen, 1981 CanLII 23 (SCC), [1981] 1 S.C.R. 640, at p. 689, per Lamer J.) It acknowledges that courts must have the respect and support of the community in order that the administration of criminal justice may properly fulfil its function. Consequently, where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings.¹⁵⁾

[47] Whether it is the Canadian government's position on the establishment of quotas or its response to the offer of arbitration from France pursuant, according to it, to the Treaty of 1972, these actions are not relevant in this court but rather in another forum. With regards to the current matter, I am not convinced that the actions taken by the Canadian authorities to enforce its fisheries laws constitute an affront to the fair play or decency of Canadian society. For these reasons, this defence is rejected.