Mr. Ford Ward; a licensedfisherman and sealer from La Scie, Newfoundland held a commercial sealinglicence issued under the Fisheries Act,allowing him to harvest hooded and harp seals.
In March/April 1996, Mr. Wardhunted in an area known as “The Front”, where he harvested 50 seals and blueback’s.On November 20, 1996 he was charged with selling blueback pelts, impeding ons.
27, Marine Mammal Regulations, whichprohibits the sale and trade of whitecoat and blueback seals. Mr. Ward (the respondent)applied to the Supreme Court of Newfoundland for a Constitution challenge wherehe stated that s.27 was not federal jurisdiction, it was provincial because it concernedeconomics and goods. The trial was put on hold while the challenge was argued.The Supreme Court judge upheld s.27 as a valid exercise of the federalfisheries power under s.
91 (12) of the ConstitutionAct 1867 saying that the government can manage the fishery on social,economic and other grounds, whatever is needed to ensure conservation orprotection. The government passed new regulations including prohibiting thesale and trade of whitecoats and blueback’s. The three pieces of legislationcovered included s.27 Marine and MammalRegulation, The Fisheries Act ands.91,92 Constitution Act. Legal IssuesThe legal issue is if thefederal ruling prohibiting the sale and trade of blueback seals is protectedunder the federal fisheries power or if it falls under the federal criminalpower.
DecisionThe appeal was allowed. TheCrown agreed that the regulations fall within the federal government’sjurisdiction of s.91(12), Constitution Act1867. RatioThe Pith and Substanceanalysis asks two questions: What is the basic character of the law? Does thecharacter connect to a specific head of power granted to the legislature by theConstitution Act 1867? The purpose is that thelegislature wishes to control the hunting of seals by not directing it atproperty or trade. The legal effects focus on Parliament not regulating localmarket for seal products. The second part is that the federal government canlimit sales to prevent exploitation of the resource and though the fisheriespower is broad, it is not accessible to everyone. It must be interpreted torespect the province’s power over civil and property rights. Legal Principle S.
27 of the Regulationswas made in correlation to the Malouf Commission which recommended that thecommercial harvest of seals be reduced. S.27 does not prohibit the killing ofblueback’s since it is difficult to tell them apart in the water. Instead, thefederal government decided to control the killings of blueback’s by prohibitingtheir sales, making it pointless for hunters to harvest. The federal fisheriespower became more focused on conservation and socio-economic goals.
Wells J.found that flat-out prohibiting the killing of blueback’s would not be aseffective. Marshall J.A did not agree and stated that prohibiting the sales butnot the hunting would result in excessive amounts of dead seals in the water. O’NeillJ.
A agreed with Wells. J and said that s.27 not only prohibits the sale ofpelts, it also discourages commercial killings.