T-1672-87
Ken Martin, Pacific West Net Co. Ltd., Redden
Net Co. Ltd., Pacific Net & Twine Ltd., Pacific
Gillnetters Association (Plaintiffs)
v.
John Ball, the Minister of Fisheries and Oceans
and the Queen (Defendants)
INDEXED AS: MARTIN V. BALL
Trial Division, Rouleau J.—Vancouver, Septem-
ber 14; Ottawa, November 20, 1987.
Judicial review — Prerogative writs — Certiorari — Fish
ery officer seizing gill net exceeding 80 microns contrary to
Regulations — Discretion of fishery officer under s. 58 Fish
eries Act — More stringent ministerial policy instructing
fishery officers to seize all nets in violation of Regulations —
No fettering of fishery officer's discretion — Discretion to be
exercised on case-by-case basis — Seizure lawful — Court
should not interfere where discretion exercised in good faith.
Fisheries — Seizure by fishery officer of gill net on ground
filament diameter exceeding 80 microns, contrary to s. 26
Pacific Commercial Salmon Fishery Regulations — New
stringent ministerial policy as to seizure not fettering fishery
officer's discretion under s. 58 Fisheries Act — Micrometer
proper and efficient method of measurement for purposes of
seizure.
The applicant, Martin, was charged with having fished for
salmon with a gill net, the web of which contained single
filaments that weighed more than 50 grams per 9 000 metres of
filament (50 deniers), contrary to section 26 of the Pacific
Commercial Salmon Fishery Regulations. A fishery officer
seized the net and related equipment, as well as a quantity of
fish. The applicant moves for certiorari setting aside the seizure
on the ground that it was unreasonable and unlawful. Section
58 of the Fisheries Act grants a fishery officer the discretionary
power to seize fishing material. Prior to 1987 the Minister's
attitude towards nets which were marginally illegal was a
lenient one. After receiving several complaints concerning the
use of illegal gill nets, the Minister decided to rigorously
enforce the Regulations. Fishery officers were instructed to
seize all nets with a filament diameter exceeding 80 microns.
The applicant contends that in adopting such a policy the
Minister fettered the discretion conferred on enforcement offi
cers by section 58 of the Act. The applicant also disputes the
micrometer measurement method as a sole determinant for
seizure.
Held, the application should be dismissed.
The adoption of a more stringent policy to enforce the statute
does not entrench upon the discretion conferred on fishery
officers by section 58 of the Act. The decision of the Supreme
Court of Canada in Maple Lodge Farms Ltd. v. Government of
Canada stands for the proposition that a Minister may indicate
considerations to be guided by in the exercise of discretion but
cannot fetter the discretion by treating the guidelines as bind
ing to the exclusion of other valid reasons. In the case at bar,
the circular sent to fishermen and net salesmen outlining the
policy was not prohibitive. Fishery officers could still elect not
to seize nets whose measurements were within a close margin of
80 microns. Such a discretionary power is exercised having
regard to the circumstances of each case. An analogy was
drawn with the prosecutorial discretion of the Attorney General
discussed in R. v. Catagas, a decision of the Manitoba Court of
Appeal.
The fishery officer acted in conformity with section 58 of the
Act when he seized the applicant's net, related equipment and
fish. He did so to prevent continuation of the offence. Where
discretion has been exercised in good faith, the Court should
not interfere in the administration process of the Minister.
There was no reason to question the use of the micrometer to
determine measurement for the purpose of seizure. The
micrometer provides a means of measurement which can be
quickly and efficiently used on location. The Minister has a
latitude to determine the method of measurement provided it
complies with recognized standards.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss.
18, 44.
Fisheries Act, R.S.C. 1970, c. F-14, ss. 58, 60.
Pacific Commercial Salmon Fishery Regulations,
C.R.C., c. 823, s. 26 (as am. by SOR/86-641, s. 2).
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Catagas (1977), 81 D.L.R. (3d) 396 (Man. C.A.);
Maple Lodge Farms Ltd. v. Government of Canada,
[1982] 2 S.C.R. 2; 137 D.L.R. (3d) 558; (1982), 44 N.R.
354; affg [1981] 1 F.C. 500; 114 D.L.R. (3d) 634; 42
N.R. 312 (C.A.).
CONSIDERED:
Rex v. Port of London Authority. Ex parte Kynoch
Limited, [1919] 1 K.B. 176 (CA.).
REFERRED TO:
Starlight Drive-In (1978) Ltd. v. Hewitt (1984), 57
B.C.L.R. 250 (S.C.).
COUNSEL:
S. Schwartz for plaintiffs.
J. Bromley for defendants.
SOLICITORS:
Watchorn & McLellan, Surrey, British
Columbia, for plaintiffs.
Ray Connell, Vancouver, for defendants.
The following are the reasons for order ren
dered in English by
ROULEAU J.: The applicant [plaintiff] Ken
Martin was charged that he fished for salmon with
a gill net, the web of which contained single
filaments that weighed more than 50 grams per
9 000 metres of filament (50 deniers) contrary to
section 26 of the Pacific Commercial Salmon
Fishery Regulations (P.C.S.F.) [C.R.C., c. 823
(as am. by SOR/86-641, s. 2)]. As a result, on
June 30, 1987, the respondent [defendant] John
Ball, an enforcement officer for the respondent
Minister of Fisheries and Oceans, seized the gill
net and attendant lines, floats and weights as well
as a quantity of fish from the net and boat of the
applicant. All this, as alleged by the applicant,
because of a change of policy directed by the
Minister.
This motion by the applicants is brought pursu
ant to sections 18 and 44 of the Federal Court Act
[R.S.C. 1970 (2nd Supp.), c. 10] seeking an order
in the nature of certiorari setting aside the seizure
by Fisheries officer John Ball; quashing the deci
sion of the Minister of Fisheries and Oceans of
adopting a policy of relying on micrometer mea
surements to determine whether a gill net may be
seized pursuant to section 58 of the Fisheries Act
[R.S.C. 1970, c. F-14]; further seeking an order
quashing the decision of the Minister of Fisheries
and Oceans of pursuing a policy that when seizing
nets to also take into custody the attendant lines,
floats and weights pursuant to section 58 of the
Fisheries Act; a declaration that the seizure of the
gill net belonging to the applicant Ken Martin by
Fisheries officer John Ball was unreasonable and
unlawful; an order that the Minister return the
net; and, finally, an order that the respondents be
prohibited from relying solely on the micrometer
measurement of the net as the sole determinant of
seizure under section 58 of the Fisheries Act.
It is agreed by the parties that Mr. Ball mea
sured the diameter of the filament of the net using
a micrometer and determined that the net was in
breach of the Act and Regulations. Mr. Ball states
in his affidavit of September 12, 1987 that he was
conducting a general check of the length, depth,
monofilament and proper marking of the gear. He
took nine different measurements of the net at
three different places which ranged from 89 to 92
microns. Based on the results of the filament tests,
which exceeded the limits under the Regulations,
Mr. Ball took two samples of the net for testing
and also seized the net to prevent further breaches
of the Regulations and to provide the Minister
with evidence in his prosecution.
The remaining applicants have joined in this
matter as they are unhappy with the policy adopt
ed by the Minister and are generally not satisfied
with the use of a micrometer measurement as the
sole determinant for seizure. The policy affects the
types of net which may be sold and, as a result,
affects the interests of gill net fishermen as a
whole.
Subsection 58(1) of the Fisheries Act provides
as follows:
58. (1) A fishery officer may seize any fishing vessel, vehi
cle, fishing gear, implement, appliance, material, container,
goods, equipment or fish where the fishery officer on reasonable
grounds believes that
(a) the fishing vessel, vehicle, fishing gear, implement, appli
ance, material, container, goods or equipment has been used
in connection with the commission of an offence against this
Act or the regulations;
(b) the fish or any part thereof have been caught, taken,
killed, transported, bought, sold or had in possession contrary
to any provision of this Act or the regulations; or
(c) the fish or any part thereof have been intermixed with
fish referred to in paragraph (b). [My underlining.]
Subsections 26(1) and (2) of the Pacific Com
mercial Salmon Fishery Regulations provide:
26. (1) No person shall fish for or catch and retain salmon
with a gill net the web of which contains any single filament
that weighs more than 50 g per 9 000 m of filament (50
deniers).
(2) The weight referred to in subsection (1) shall be deter
mined in accordance with Canadian General Standards Board
Standard CAN2-4.2-M77.
The Minister formulated a new policy of
enforcement in the spring of 1987: As a result the
applicant argues that the respondent Ball acted
unlawfully and exceeded his authority when exer
cising his duty pursuant to the policy adopted by
the respondent Minister. It is argued that the
Minister, in adopting a policy to seize all nets
violating the Act and Regulations, acted unlawful
ly and in excess of his jurisdiction when he fettered
the discretion of the enforcement officers provided
for in section 58 of the Fisheries Act. More
specifically, the applicant argues that when the
legislators enacted subsection 58(1) they chose to
use the word "may" in relation to seizure instead
of "shall"; and that by instituting a new stringent
policy of seizure, the Minister has removed the
discretion afforded the enforcement officer and he
now must seize the net if it offends the Act and
Regulations.
The applicant is also dissatisfied with the proce
dure followed by the respondent for measuring the
net. Mr. Martin states in his affidavit of July 17,
1987 that when this occurred, the net was encrust
ed with ocean deposits and the officer refused to
clean it before taking measurements.
Since the applicant was not pleased with the
method of measurement, he took it upon himself to
obtain a new net identical to the type that was
seized and met with fishing officials to observe
remeasurements which results were less than those
obtained in the field but still greater than the
dimensions permitted under the Regulations. At
the meeting he demanded the return of his net
which was denied.
The crux of the matter revolves around the
policy for seizure under the Act and Regulations.
It is argued by the applicant that previous enforce
ment policy tolerated infringement of the Act and
allowed considerable discretion to the field officer;
but the new policy communicated to the fishermen
and retailers of nets sometime in the spring of
1987 took away any discretion the field officer
may have had.
To understand the change in policy, I must look
to the affidavits of Alan Gibson, the Chief Conser
vation and Protection Officer of the Pacific Region
in the Department of Fisheries and Oceans, dated
August 10 and September 10, 1987. According to
Mr. Gibson, monofilament nets have been banned
in salmon gill net fishing on the Pacific Coast since
1956. The ban came about because the nets were
allegedly too efficient in catching fish. The Minis
ter banned the nets in an attempt to distribute the
catch more equally amongst all fishermen as well
as ensuring that the fish stocks would not become
depleted because of an increased catch.
According to Mr. Gibson, previous to this par
ticular incident, the United Fishermen and Allied
Workers' Union which represents gill net fisher
men conducted a referendum in March 1987 to
determine if the fishermen supported the retention
of section 26 of the P.C.S.F. Regulations. A copy
of the result of the referendum is attached as
Exhibit "A" to the affidavit of September 10,
1987 and indicated that the fishermen voted 63.3%
in favour of retaining the Regulation.
Prior to 1987, the Minister had developed a
lenient attitude towards nets which were marginal
ly illegal. However, after receiving a number of
complaints from fishermen regarding the use of
illegal gill nets, the Minister decided to rigorously
enforce the Regulations commencing in the spring
of 1987.
A formal notice of the change in policy was sent
to fishermen and net salesmen in the industry
advising them that enforcement would be more
stringent and nets violating the Regulations, i.e. in
excess of 80 microns, would be seized. The notice,
dated June 17, 1987, reads as follows:
Circular to the Fishing Industry and Net Sales
This notice is to remind fishermen of the prohibition against the
use of monofilament salmon gill nets. And to notify the net
sales industry that the maximum filament diameter of 80
microns is firm with no tolerance provided for.
Any fishermen who have purchased salmon gill net web that
exceeds 80 microns per filament can expect to have their gill
nets checked during the salmon fishery. Any illegal monofila-
ment nets will be seized and used as evidence in court.
The fact that some net sales people may have advised fishermen
of a tolerance in measurement of nets will not be recognized as
an excuse for the use of nets that exceed the maximum
allowable filament size. In such cases fishermen are urged to
return these nets to the supplier for an exchange or refund.
DFO is willing to co-operate with net suppliers in checking the
legality of certain brand names. For instance `SUPERSTAR
19' has been checked and is not in compliance with the
regulations.
Consequently Mr. Gibson instructed his fishery
officers, including John Ball, to seize any net used
in fishing found to be over 80 microns.
John Ball, acting pursuant to this policy, seized
Mr. Martin's net. At the time a statement was
taken from Mr. Martin. This is set out in Exhibit
"B" of Mr. Gibson's affidavit of September 10,
1987. From this statement it is clear that Mr.
Martin had measured his net prior to the seizure
and obtained measurements of 83, 84 and 85
microns. The applicant knew that the maximum
was 80 microns, however, he chose to continue his
use of the net. Apparently Mr. Martin had been
advised by the retailer that the net would shrink by
5 microns with use.
Mr. Gibson stated in his affidavit of August 10,
1987 that when a net has been seized on the
grounds of violation of subsection 26(1) of the
P.C.S.F. Regulations, a sample of the net is sent to
Toronto for testing. This has been standard prac
tice since August 1986 and prior to this practice
the Vancouver Crime lab performed the tests.
A sample of Mr. Martin's net was sent to the
Ontario Research Foundation Centre for Textiles
and Clothing to be tested in accordance with the
Canadian General Standards Board standards as
provided in the P.C.S.F. Regulations. Dr. Peter
Cashmore, a highly qualified expert in this area,
used sophisticated equipment to measure the net
according to CAN2-4.2-M77.
This expert has provided evidence on numerous
occasions in relation to seizure of nets pursuant to
the Fisheries Act regarding density and the nature
of fabrics. A copy of the test results is included as
Exhibit "B" to Mr. Gibson's affidavit of August
10, 1987; it states that the filament denier of the
applicant's net was 73.5 which is equivalent to
approximately 94 microns. Both parties have pro
vided this Court with copies of transcripts of Dr.
Cashmore's evidence in the case of R. v. Forest
(unreported decision, Provincial Court of British
Columbia, O'Donnell J., February 23, 1987). The
transcripts set out Dr. Cashmore's method of
measurement of the net according to the Canadian
General Standards Board standards. Among other
things, he states that a wide range of tests may be
used to determine compliance with the standards;
in fact there are 60 methods of testing to choose
from and the method he has chosen is in accord
ance with these standards. May I point out that
there is no evidence to dispute Dr. Cashmore's
findings or the accuracy of his test.
The Regulations precisely provide that the
weight of the filament must not exceed 50 grams
per 9 000 metres of filament or 50 deniers. Appar
ently the denier is an expression of weight per unit
length, its linear density.
The respondent Minister argues that he has not
fettered the discretion of the Fisheries officers
pursuant to section 58 of the Fisheries Act by
imposing an overriding general policy which must
be followed. It is submitted that he simply decided
to strictly enforce the determination under the
statute and regulations and he alone decides.
The applicant refers me to the decision of Bouck
J. in Starlight Drive-In (1978) Ltd. v. Hewitt
(1984), 57 B.C.L.R. 250 (S.C.), at page 254 in
which he refers to an excerpt from Rex v. Port of
London Authority. Ex parte Kynoch Limited,
[1919] 1 K.B. 176 (C.A.), where Bankes L.J. said
at page 184:
There are on the one hand cases where a tribunal in the honest
exercise of its discretion has adopted a policy, and, without
refusing to hear an applicant, intimates to him what its policy
is, and that after hearing him it will in accordance with its
policy decide against him, unless there is something exception
al in his case ... if the policy has been adopted for reasons
which the tribunal may legitimately entertain, no objection
could be taken to such a course. On the other hand there are
cases where a tribunal has passed a rule, or come to a determi
nation, not to hear any application of a particular character by
whomsoever made. There is a wide distinction to be drawn
between these two classes. [Emphasis added by Bouck J.]
The applicant argues that this case is an
exception.
The respondent refers me to the case of R. v.
Catagas (1977), 81 D.L.R. (3d) 396 (Man. C.A.),
at page 401 where Freedman C.J.M. stated:
The other point is that nothing here stated is intended to
curtail or affect the matter of prosecutorial discretion. Not
every infraction of the law, as everybody knows, results in the
institution of criminal proceedings. A wise discretion may be
exercised against the setting in motion of the criminal process.
A policeman, confronting a motorist who had been driving
slightly in excess of the speed limit, may elect to give him a
warning rather than a ticket. An Attorney-General, faced, with
circumstances indicating only technical guilt of a serious
offence but actual guilt of a less serious offence, may decide to
prosecute on the latter and not on the former. And the Attor-
ney-General may in his discretion stay proceedings on any
pending charge, a right that is given statutory recognition in
s. 508 [am. 1972, c. 13, s. 43(1)] and s. 732.1 [enacted idem,
s. 62] of the Criminal Code. But in all these instances the
prosecutorial discretion is exercised in relation to a specific
case. It is the particular facts of a given case that call that
discretion into play. But that is a far different thing from the
granting of a blanket dispensation in favour of a particular
group or race. Today the dispensing power may be exercised in
favour of Indians. Tomorrow it may be exercised in favour of
Protestants, and the next day in favour of Jews. Our laws
cannot be so treated. The Crown may not by Executive action
dispense with laws. The matter is as simple as that, and nearly
three centuries of legal and constitutional history stand as the
foundation for that principle.
After a thorough review of the circumstances
and the authorities, I am unable to accept the
submissions of the applicant. It is clear on the
facts that the net exceeded the measurement
allowed by section 26 of the P.C.S.F. Regulations
and the applicant knew that his net exceeded the
allowable limit.
It is the Fisheries Act and the P.C.S.F. Regula
tions which define what is an illegal net, not the
Minister. The Minister is responsible for enforce
ment of the Act. In each case, either the net
complies with the Regulations or it does not. The
Minister has a latitude in determining the method
of measurement to be used by his officers in the
enforcement of the Act provided the method com
plies with recognized standards. I find no reason to
question the use of the micrometer to determine
measurement for the purpose of seizure. This is a
quick and efficient method of measurement which
can be used by an officer when in the field. It
cannot be expected that he transport equipment to
perform more sophisticated tests on location. I am
satisfied from the evidence of Mr. Ball that this is
a very effective means of measurement. In fact,
the applicant Ken Martin was the first person Mr.
Ball had determined to be contravening the Act
since he began conducting tests in June 1986.
The fact that the officer had been instructed to
seize the net if it measured in excess of 80 microns
does not mean that his discretion has been
removed. The circular was not prohibitive. The
field officer could still elect not to seize if the
measurement was within a close margin of 80
microns.
I am of the opinion that the officer acted lawful
ly when he seized the net, attendant lines, floats,
weights and fish of the applicant. Paragraph
58(1)(a) states that the officer may seize goods or
equipment used in connection with the commission
of the offence; this includes in paragraph 58(1)(b)
any fish which have been caught contrary to the
Regulations.
In this instance, the officer determined that he
should seize the net and related equipment to
prevent the continuation of the offence. It is
important to note section 60 of the Act which
reads as follows:
60. Should any nets, seines, or other fishing apparatus be set
or used in violation of this Act or any regulation for more than
one day, then each day during which such seines, nets, or other
fishing apparatus remain so set or used constitutes a separate
offence, and may be punished accordingly; and should any
other violation of this Act, or of any regulation, continue for
more than one day, then each day during which such violation
continues constitutes a separate offence, and may be punished
as such.
The decision in Maple Lodge Farms Ltd. v.
Government of Canada, [ 1982] 2 S.C.R. 2; 137
D.L.R. (3d) 558; (1982), 44 N.R. 354 (approving
Le Dain J. of the Federal Court of Appeal [1981]
1 F.C. 500; 114 D.L.R. (3d) 634; 42 N.R. 312) is
authority for the proposition that a Minister may
indicate types of considerations as a general guide
in the exercise of discretion but he cannot fetter
the discretion by treating the guidelines as binding
and exclude other valid reasons for the exercise of
discretion. Le Dain J. said at pages 513-514 F.C.;
645 D.L.R.; 325 N.R.:
The Minister may validly and properly indicate the kind of
considerations by which he will be guided as a general rule in
the exercise of his discretion (see British Oxygen Co. Ltd. v.
Minister of Technology [1971] A.C. 610 (H.L.); Capital Cities
Communications Inc. v. Canadian Radio-Television Commis
sion [1978] 2 S.C.R. 141, at pp. 169-171), but he cannot fetter
his discretion by treating the guidelines as binding upon him
and excluding other valid or relevant reasons for the exercise of
his discretion (see Re Hopedale Developments Ltd. and Town
of Oakville [1965] 1 O.R. 259).
I am satisfied that the Minister has the author
ity to alter or amend policy from time to time, and
more so especially where the parties affected by
the change have been notified and even voted on
the issue. The courts should not interfere with the
exercise of discretion by a statutory authority
where it has been exercised in good faith and is not
based upon irrelevant or extraneous consider
ations. Barring flagrant impropriety, the Court
should not be interfering in the administration
process of the Minister. As McIntyre J. said in
Maple Lodge (supra), [1982] 2 S.C.R. 2, at pages
7-8 S.C.R.; 562 D.L.R.; 359 N.R.:
In construing statutes such as those under consideration in
this appeal, which provide for far-reaching and frequently
complicated administrative schemes, the judicial approach
should be to endeavour within the scope of the legislation to
give effect to its provisions so that the administrative agencies
created may function effectively, as the legislation intended. In
my view, in dealing with legislation of this nature, the courts
should, wherever possible, avoid a narrow, technical construc
tion, and endeavour to make effective the legislative intent as
applied to the administrative scheme involved. It is, as well, a
clearly-established rule that the courts should not interfere with
the exercise of a discretion by a statutory authority merely
because the court might have exercised the discretion in a
different manner had it been charged with that responsibility.
Where the statutory discretion has been exercised in good faith
and, where required, in accordance with the principles of
natural justice, and where reliance has not been placed upon
considerations irrelevant or extraneous to the statutory purpose,
the courts should not interfere.
I am of the opinion that the discretion has been
given to the officers by statute and the adoption of
a policy to enforce the statute does not restrict this
discretion. For the foregoing reasons the applica
tion is dismissed.
Costs to the respondent Minister.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.