Mr. Ford Ward; a licensed
fisherman and sealer from La Scie, Newfoundland held a commercial sealing
licence issued under the Fisheries Act,
allowing him to harvest hooded and harp seals. In March/April 1996, Mr. Ward
hunted 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 on
s.27, Marine Mammal Regulations, which
prohibits the sale and trade of whitecoat and blueback seals. Mr. Ward (the respondent)
applied to the Supreme Court of Newfoundland for a Constitution challenge where
he stated that s.27 was not federal jurisdiction, it was provincial because it concerned
economics 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 federal
fisheries power under s.91 (12) of the Constitution
Act 1867 saying that the government can manage the fishery on social,
economic and other grounds, whatever is needed to ensure conservation or
protection. The government passed new regulations including prohibiting the
sale and trade of whitecoats and blueback’s. The three pieces of legislation
covered included s.27 Marine and Mammal
Regulation, The Fisheries Act and
s.91,92 Constitution Act.
The legal issue is if the
federal ruling prohibiting the sale and trade of blueback seals is protected
under the federal fisheries power or if it falls under the federal criminal
The appeal was allowed. The
Crown agreed that the regulations fall within the federal government’s
jurisdiction of s.91(12), Constitution Act
The Pith and Substance
analysis asks two questions: What is the basic character of the law? Does the
character connect to a specific head of power granted to the legislature by the
Constitution Act 1867?
The purpose is that the
legislature wishes to control the hunting of seals by not directing it at
property or trade. The legal effects focus on Parliament not regulating local
market for seal products. The second part is that the federal government can
limit sales to prevent exploitation of the resource and though the fisheries
power is broad, it is not accessible to everyone. It must be interpreted to
respect the province’s power over civil and property rights.
S.27 of the Regulations
was made in correlation to the Malouf Commission which recommended that the
commercial harvest of seals be reduced. S.27 does not prohibit the killing of
blueback’s since it is difficult to tell them apart in the water. Instead, the
federal government decided to control the killings of blueback’s by prohibiting
their sales, making it pointless for hunters to harvest. The federal fisheries
power became more focused on conservation and socio-economic goals. Wells J.
found that flat-out prohibiting the killing of blueback’s would not be as
effective. Marshall J.A did not agree and stated that prohibiting the sales but
not the hunting would result in excessive amounts of dead seals in the water. O’Neill
J.A agreed with Wells. J and said that s.27 not only prohibits the sale of
pelts, it also discourages commercial killings.