Canada (Fisheries & Oceans) v. Canada (National Defence)

Canada (Fisheries & Oceans) v. Canada (National Defence) Court Court of Appeal Date 1993-09-30 Citation 1993 NSCA 182 Docket CAC 02830 Judge/Registrar/Adjudicator Freeman, Gerald B. (Honourable Justice) (CA); Hart, Gordon L.S. (Honourable Justice); Roscoe, Elizabeth A. (Honourable Justice) (CA) Document Type Decision Decision Content C.A.C. No. 02830 NOVA SCOTIA COURT OF APPEAL Freeman, Hart and Roscoe, JJ.A. Canada (Fisheries & Oceans) v. Canada (National Defence), 1993 NSCA 182 B E T W E E N: HER MAJESTY THE QUEEN IN RIGHT OF ) Wayne J. MacMillan and CANADA (DEPARTMENT OF FISHERIES ) and Michael A. Paré & OCEANS) ) for appellant ) appellant ) ) - and - ) ) HER MAJESTY THE QUEEN IN RIGHT OF ) Mark E. MacDonald and CANADA (DEPARTMENT OF ) Robert G. Grant NATIONAL DEFENCE ) for respondent ) respondent ) ) ) Appeal Heard: ) September 16, 1993 ) ) ) ) Judgment Delivered: ) September 30, l993 ) ) ) THE COURT: Appeal allowed from Provincial Court decision finding Her Majesty in Right of Canada represented by Minister of National Defence entitled to protection of limitation period in National Defence Act, per reasons of judgment of Freeman, J.A.; Hart and Roscoe, JJ.A. concurring FREEMAN, J.A.: The issue in this appeal is whether Her Majesty the Queen in the Right of Canada as Represented by the Minister of National Defence is a proper defendant in a prosecution under the Fisheries Act, R.S., c. F-14, brought in the name of Her Majesty the Queen, also in right of Canada, represented by the Minister of Justice. The information alleges that Her Majesty between April 1, 1991 and April 11, 1991, carried on work at Wash Brook, Cape Breton County, that resulted in the harmful alteration of fish habitat contrary to s. 35(1) of the Fisheries Act, thereby committing an offence under s. 78(a) of the Fisheries Act. The work was actually done by members of the 45th Field Engineering Squadron of the Canadian Armed Forces as part of a bridge construction field exercise undertaken at the Cape Breton rifle range. The trial judge found that Her Majesty was not immune from prosecution but he decided on a preliminary motion that the prosecution was barred by the six-month limitation period in s. 269 of the National Defence Act R.S.C. 1985 c. N-5, . S. 17 (formerly s. 16) of the Interpretation Act R.S.C., c. I-21 provides: " 17. No enactment is binding on Her Majesty or affects Her Majesty's rights or prerogatives in any manner, except as mentioned or referred to in the enactment." S. 34 (2) (formerly s. 27) of the Interpretation Act provides: " All the provisions of the Criminal Code relating to indictable offences apply to indictable offences created by an enactment, and all the provisions of that Code relating to summary conviction offences apply to all other offences created by an enactment, except to the extent that the enactment otherwise provides." S. 2. of the Criminal Code provides that "in this act . . . 'every one', 'person', 'owner' and similar expressions include Her Majesty . . . " In R. v. Eldorado Nuclear Limited (1984) 4 D.L.R. (4th) 193 (S.C.C.) Chief Justice Dickson, as he then was, held that "in the absence of a provision expressly incorporating the Criminal Code definition of 'every one' into the Combines Investigation Act, the definition applies only in the Code itself." With respect to ss. 17 and 34, then respectively ss. 16 and 27, he wrote: "Section 16 makes the Crown immune unless expressly bound, and it cannot be that s. 27 of the same Act binds the Crown unless expressly exempted. In my view s. 27 (2) of the Interpretation Act does not import the Criminal Code definition of "every one" into the Combines Investigation Act, and it does not make the latter Act binding on the Crown." In CNCP Telecommunications v. Alberta Government Telephones (1989), 98 N.R. 161 at p. 220 he explained further: "Section 16 requires a clear Parliamentary expression of an intention to bind the Crown. This does not necessarily require that a federal enactment requires a section stating "This Act shall bind Her Majesty" (although such a provision, as a matter of legislative drafting, would put the issue beyond doubt). S. 3(2) of the Fisheries Act provides: "This Act is binding on Her Majesty In Right of Canada or a Province. " In my opinion therefore the whole of the Fisheries Act is binding on the Crown; Her Majesty is not immune from prosecution under the Fisheries Act for offences committed in her name. The obvious intention of Parliament in enacting s. 2 of the Criminal Code was to make the concept of the criminal liability of the state, as personified by Her Majesty, a feature of Canadian criminal law. The respondent referred to jurisprudence from other Commonwealth jurisdictions relating to crown immunity. In my opinion the question is settled in Canada by statutes supported by jurisprudence: the state is not above the penal law nor immune from prosecution under it when the binding intention of a statute is clear. Similar conclusions were reached respecting the liability of the Crown in right of a province in R. v. Forest Protection Limited (1979), 25 N.B.R. (2d) 513 and R. v. British Columbia [1992] 4 W.W.R 490 (B.C.S.C.) In the British Columbia case Shaw J. distinguished Canadian Broadcasting Corp. v. Ontario (Attorney General), [1959] S.C.R. 188, 122 C.C.C. 305, 16 D.L.R. 609 in which the C.B.C. as a Crown agency was found not to be a "person" subject to prosecution under the Lord's Day Act. Shaw J. found that case "involved quite different legislation . . . . The Court was not addressing anything comparable to the scheme of the Fisheries Act and the quite specific wording of s. 3(2) of that Act. There is a similarity between the facts in present case and those in Department of the Environment, Canada v. Department of Public Works, Canada, (1992) 10 C.E.L.R. (N.S.) 135 (C.Q.), which set a precedent as the first case in which one minister of the federal Crown had prosecuted another. Public Works had misread its authorization from Environment and unlawfully dumped sand from a dredging operation in the Magadalen Islands over lobster grounds during a season when lobsters were breeding. Decoste J. of the Court of Quebec considered arguments of Crown immunity but found that s. 4 of the Canadian Environment Protection Act, S.C. 1988, c. 22 [R.S.C. 1985, c. 16 (4th Supp.)] provided a complete answer. It is identical to s. 3(2) of the Fisheries Act. In the present case the proceedings were brought approximately a year after the alleged offence. The respondent argued that Her Majesty in right of the Minister of National Defence was protected by a six-month limitation period on prosecutions. S. 269(1) of the National Defence Act was pleaded on her behalf: " No action, prosecution or other proceeding lies against any person for an act done in pursuance or execution or intended execution of this Act or any regulations or military or departmental duty or authority, or in any respect of any alleged neglect or default in the execution of this Act, regulations or any such duty or authority unless it is commenced within six months after the act, neglect or wilful default complained of or, in the case of continuance of injury or damage, within six months after the ceasing thereof." Counsel agreed that s. 269(1) created a limitation period for the benefit of persons performing duties under the National Defence Act that applied even when proceedings were brought under other federal acts. I will assume that to be the case. The issue is whether s. 269 applies to proceedings brought against Her Majesty under another federal act. I agree with the appellant that the s. 269 limitation does not apply to such proceedings against the Crown. Parliament's obvious primary intention in enacting s. 269 was to create a prescriptive defence for National Defence personnel with respect to the large number of military offences created by the Act. Her Majesty is not bound by the National Defence Act as she is by s. 3(2) of the Fisheries Act and s. 4 of the Environmental Protection Act. As she cannot be prosecuted for offences under the National Defence Act, it could not have been the intention of Parliament to protect her as a "person" under s. 269. The language does not support a conclusion that it was intended to apply to Her Majesty with respect to prosecutions under other acts. In my opinion the Crown is not a "person" entitled to the protection of s. 269 and the trial judge erred in finding that the six-month limitation period applied to Her Majesty. A similar result was reached in Pelletier v. R. [1970] Ex. C.R. 2 and Way v. Canada and John Doe (1993) 63 F.T.R. 24. The respondents argued that the prosecution of Her Majesty in Right of Canada by Her Majesty in Right of Canada creates an absurdity. While there may be conceptual difficulties, these must yield to the principle that Her Majesty in Right of Canada or a Province is not above the law. When a statute that Parliament has made binding upon Her Majesty is violated in her name and on her behalf, the declarative effect of a finding of guilt is more important than the penalty imposed. This is particularly true when the statutory violation consists of an act destructive to the environment. Decoste J. dealt with a similar argument in the Environment Canada case.. "Moreover, even if it is subject to the Act, what justification is there for a charge, knowing full well that the Treasury Board would receive from one hand (Environment Canada) what is paid with the other (Public Works Canada)? . . .we invited prosecuting counsel to explain the justification for these proceedings. First, he submitted, the general deterrent aspect is very important. By this, he meant sending a clear message to our private sector of the seriousness of the objective adopted by Parliament: the protection of the environment, of human life and of the health of Canadians. They want to practise what they preach. Second, they also want by doing this to make government employees and contractors take more responsibility. They must also be sensitized to this concept of the environment, and act in such a way that none of the many decisions which they must make involve the slightest risk to environmental protection. In my opinion, these two reasons alone fully justify the initiation of criminal proceedings." Decoste J. imposed a fine of $1.00 and ordered a $100,000 (reduced to $40,000 on appeal) cleanup of the damaged lobster grounds. I would allow the appeal and remit the matter to the Provincial Court for trial. Freeman, J.A. Concurred in: Hart, J.A. Roscoe, J.A. C.A.C. No. 02830 NOVA SCOTIA COURT OF APPEAL B E T W E E N: HER MAJESTY THE QUEEN IN RIGHT OF CANADA ) REASONS FOR (DEPARTMENT OF FISHERIES & OCEANS ) ) JUDGMENT BY: appellant ) ) FREEMAN, J.A. - and - ) ) HER MAJESTY THE QUEEN IN RIGHT OF CANADA ) (DEPARTMENT OF NATIONAL DEFENCE ) ) respondent ) ) ) )