[1997] 1 F.C. 206
T-945-95
Douglas Lloyd Matthews (Applicant)
v.
The Attorney General of Canada (Respondent)
Indexed as: Matthews v. Canada (Attorney General) (T.D.)
Trial Division, MacKay J.—Halifax, April 10; Ottawa, August 13, 1996.
Fisheries — Judicial review of Minister of Fisheries and Oceans’ decision not to issue to applicant snow crab fishing licence for first three weeks of 1995 season and to reduce quota during 1995 season — Fisheries Act, s. 7 giving Minister absolute discretion to issue, authorize issuance of fishing licences — Decision intended to penalize applicant for violations of 1994 licence conditions — Act specifically providing variety of penalties to be imposed by court — Implicit Parliament not intending penal powers to be exercised by Minister — Applicant entitled to procedural safeguards envisioned by penal provisions — Declaration Minister’s discretion under s. 7 not including authority to impose licence conditions to penalize for violations of Act, Regulations, licence conditions.
This was an application for judicial review of the Minister of Fisheries and Oceans’ decision not to issue to the applicant a snow crab fishing licence for the first three weeks of the 1995 season and to reduce his quota by 50% during the 1995 season. In 1994 the applicant violated the conditions of his snow crab fishing licence by not hailing the dockside monitoring program prior to changing designated fishing areas, and by exceeding the total weight allowed on at least three occasions. In January 1995 the P.E.I. area manager of the Department of Fisheries and Oceans requested a decision by the Regional Director-General, on behalf of the Minister, with respect to issuance to the applicant of a restricted licence and a quota reduction for the 1995 season. That request was admittedly made because of the violations of the licence conditions. By letter dated April 12, 1995, which referred to the violations of his 1994 licence, the applicant was advised that his 1995 licence was subject to the above-mentioned sanctions.
Fisheries Act, section 7 gives the Minister absolute discretion to issue or authorize the issuance of fishing licences.
The issue was whether section 7 gave the Minister jurisdiction to impose a penalty for violations of fishing licence conditions.
Held, the application should be allowed.
The purpose of the limitations was clearly to impose a penalty.
Parliament has provided a process for dealing with violations of the Act, the Regulations or licence conditions in Fisheries Act, sections 78 to 79.7 and has not authorized the making of regulations that would permit the imposition of penalties by processes other than those set out in the Act. By implication Parliament did not intend that the Minister could exercise penal powers. Those penalties are to be imposed by a court, where procedural safeguards associated with the judicial process are available. The applicant is entitled to the procedural safeguards envisioned by the penal provisions of the Act, if a process of imposing penalties for violations for the Act or Regulations is to be undertaken. The Minister’s discretion under section 7 did not include the authority to impose penalties or sanctions for past violations of the Act, Regulations or licence conditions.
The 1995 season having gone by, an order quashing the Minister’s decision would provide no effective relief. But since the issue remained a vital one for future seasons, an order should go declaring that the Minister may not impose licence conditions to penalize violations of the Act.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Fisheries Act, R.S.C., 1985, c. F-14, ss. 7, 43 (as am. by R.S.C., 1985 (1st Supp.), c. 35, ss. 3, 7; S.C. 1991, c. 1, s. 12), 78 (as am. idem, s. 24), 78.1 (as enacted idem), 78.2 (as enacted idem), 78.3 (as enacted idem), 78.4 (as enacted idem), 78.5 (as enacted idem), 78.6 (as enacted idem), 79 (as am. idem), 79.1 (as enacted by R.S.C., 1985 (1st Supp.), c. 31, s. 97; S.C. 1991, c. 1, s. 24), 79.2 (as enacted idem), 79.3 (as enacted idem), 79.4 (as enacted idem), 79.5 (as enacted idem), 79.6 (as enacted idem), 79.7 (as enacted idem).
Fishery (General) Regulations, SOR/93-53, ss. 22(6),(7).
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Everett v. Canada (Minister of Fisheries & Oceans) (1994), 25 Admin. L.R. (2d) 112; 169 N.R. 100 (F.C.A.); Everett v. Canada (Minister of Fisheries and Oceans) (1993), 63 F.T.R. 279 (F.C.T.D.).
REFERRED TO:
Canada (Human Rights Commission) v. Canada (Attorney General), [1994] 2 F.C. 447 (1994), 17 Admin. L.R. (2d) 2; 164 N.R. 361 (C.A.).
APPLICATION for judicial review of the Minister of Fisheries and Oceans’ decision not to issue to the applicant a snow crab fishing licence for the first three weeks of the 1995 season and to reduce his quota during that season. Application allowed.
COUNSEL:
J. Allan Shaw for applicant.
Gregory A. MacIntosh for respondent.
SOLICITORS:
J. Allan Shaw, Alberton, Prince Edward Island, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
MacKay J.: This is an application for judicial review of a decision of the Minister of Fisheries and Oceans dated April 12, 1995 determining not to issue the applicant a snow crab fishing licence for the first three weeks of the 1995 season and to reduce his quota by 50% during the 1995 season. The applicant seeks a writ of certiorari quashing the decision not to issue him a licence for the first three weeks and reducing his quota allocation.
The applicant is a fisherman from Prince Edward Island. In 1994 he held a snow crab fishing licence in connection with his vessel Desert Storm permitting him to fish in designated areas 25 and 26 only. On May 8, 1994 the vessel Desert Storm was observed, from a fisheries patrol aircraft, about three quarters of a nautical mile into area 12, an area in which the vessel was not permitted. The applicant’s vessel was observed a second time, later that same day, some two nautical miles into area 12. At that time, the applicant’s licence contained a condition requiring him to hail the dockside monitoring program at least three hours prior to changing areas, but he failed to do so prior to entering area 12 on both occasions that day.
On the second occasion fisheries officials on board a patrol vessel began to pursue the Desert Storm, which then proceeded back to its permitted areas. The officials eventually boarded the vessel and the applicant was informed that he had been seen within fishing area 12, to which the applicant replied that he must have drifted into the area while eating dinner. A violation report was completed and fisheries officials then proceeded to area 12 where the Desert Storm had been observed. There they discovered a number of freshly baited but untagged snow crab traps. These were without identification but were similar, and had marker buoys similar, to those earlier observed on board the Desert Storm.
Subsequently, on May 11 and 12, 1994 the applicant unloaded his crab catch from a fishing trip. The weight of that catch was 8,710 lbs., bringing his total catch to that date to 44,541 lbs. That total was in excess of his licence conditions which, at that time, permitted him to land only 44,100 lbs. of snow crab. Thus Mr. Matthews was 441 lbs. over his allowable quota. At that time the applicant was read his rights and informed of the violation of his licence conditions.
On May 13, 1994 the applicant was issued further licence conditions permitting him to land an additional 5,000 lbs. of snow crab. The following day, May 14, 1994, he landed 5,229 lbs. of snow crab, exceeding his additional quota by 229 lbs. A violation report on this incident was completed by fisheries officials.
Thereafter, on May 19, 1994 further licence conditions were issued to the applicant permitting him to land a maximum of 73,490 lbs. of snow crab for the year. On June 1, 1994 he landed 1,232 lbs. of crab, bringing his total catch for the year to 73,728 lbs., 238 lbs. in excess of his allowable quota for the year. Once again a violation report was issued in connection with this infringement.
At some time thereafter a prosecution was initiated against the applicant, but those proceedings, apparently in relation to alleged fishing with untagged traps, were not completed before this matter was heard.
By letter dated January 9, 1995 the applicant was advised by the Prince Edward Island area manager of the Department of Fisheries and Oceans (DFO) that a request for a decision with respect to issuance of his licence and reduction of the applicant’s quota for his 1995 snow crab licence was being forwarded to Mr. Cormier, Regional Director-General, DFO, because of the four violations committed the previous season by the applicant. The letter provided that the applicant might make written representations on the matter to Mr. Cormier.
The letter to the applicant included a copy of a memorandum, also dated January 9, 1995, from the area manager requesting a decision by the Regional Director-General, for the Minister, regarding a quota reduction and a restricted licence to be issued for the 1995 snow crab season for the applicant, pursuant to section 7 of the Fisheries Act, R.S.C., 1985, c. F-14 as amended (the Act). In that memorandum the area manager noted that the applicant had violated conditions of his 1994 licence on four occasions, including his failure to hail on moving to area 12 on May 8, 1994, and the three violations of his quota allocations on May 12 and 14, and on June 1, 1994. On behalf of the Department it was stated that there had been serious enforcement concerns in the snow crab fishery based in Prince Edward Island in the past, and “strict controls with licence conditions … are there to assist in conservation and protection and ensure an orderly harvest in this valuable fishery”.
The area manager, for the Department, requested that the applicant not be issued a snow crab licence for the first three weeks of the 1995 season and that his allowable quota be reduced by one-half, pursuant to section 7 of the Act. The request was said to be made as a result of the conditions of the applicant’s licence being violated on four occasions in 1994, contrary to subsection 22(7) of the Fishery (General) Regulations, SOR/93-53, (the Regulations). Included with the area manager’s memorandum were reports of the applicant’s violations reported in 1994. There were also two other undated statements signed by the fisheries officer who had boarded the Desert Storm at sea on May 8, 1994 and who reported on the applicant’s failure to hail on moving from one area to another that day. The first, a statement headed “Conservation Impact” discusses the purposes and importance of the requirement to hail as a control measure. The second, headed “Due Diligence Defence”, makes no reference to any discussions with Mr. Matthews, but negates any claim the applicant might advance about care taken to remain within his permitted fishing areas or to hail if he moved from one area to another. In essence the officer concluded there could be no due diligence defence for being in area 12 without having hailed because the applicant had technical equipment on board, including a cellular telephone and a VHS marine radio, which would permit him to hail the dockside monitoring program, and the reception from such devices was good on that day.
The final page of submissions by DFO to the Regional Director-General is entitled “Sanction Recommendation”. This refers to the recommendation not to issue the applicant a snow crab licence for the first three weeks of the 1995 season and to reduce his allowable quota by half. It specifies the reasons for the recommendation, that is, four separate violations in 1994, including three quota overruns, showing continual disregard for DFO’s harvest levels without evidence of an attempt to correct the situation, and the violation for not hailing which was considered a serious offence. The sanction recommendations were estimated by DFO officers to result in a monetary loss to the applicant in an amount in excess of $82,600, which is recommended as appropriate on the facts of the case. The applicant estimates the monetary loss as much larger than that sum estimated by the Department.
It appears from the record that by letter of March 22, 1995, DFO confirmed to counsel for the applicant that an alleged violation for fishing untagged traps was the subject of a prosecution before the courts but that was adjourned at that time, while the sanction request, for four violations of 1994 licence conditions, was being processed “as a straight administrative sanction pursuant to the National Licence Sanction Policy and Procedures”. I note the record contains no further reference to or detail about this “national” policy and procedures, though it does contain a one page table of sanction guidelines for the Gulf Region for snow crab and rock crab.
By letter dated April 12, 1995 the applicant was advised that his 1995 snow crab fishing licence, issued pursuant to section 7 of the Act, was subject to sanctions. That letter provided, in part, as follows:
SUBJECT: DECISION CONCERNING OFFENCE
This is in reference to the violation on four (4) different occasions of the conditions of your 1994 Snow Crab Licence. These violations occurred between May 8 and June 1, 1994, near North Lake, P.E.I.
In making my decision, I have considered the facts and information in all the documents submitted to me on March 28, 1995, particularly the facts reported by Fishery Officers … and the representation made by J. Allan Shaw on your behalf…
According to the evidence I received, you were in violation of Subsection 22.(7) of the Fishery (General) Regulations, made pursuant to the Fisheries Act, on four (4) different occasions by contravening the conditions of your Snow Crab Licence, issued for Areas 25 and 26. …
In accordance with the powers conferred on me by Section 7 of the Fisheries Act, I order that the following penalty be applied to your Snow Crab fishing licence for Areas 25 and 26:
Your Snow Crab fishing licence will not be issued for the first three weeks of the 1995 fishing season in Areas 25 and 26, and your 1995 Snow Crab quota be reduced by 50%. [Bold face type in original.]
This decision will be implemented by the Department of Fisheries and Oceans for the 1995 Snow Crab season.
This decision is final and cannot be appealed to the Federal Department of Fisheries and Oceans. However, you do have the right to appeal this decision to the Federal Court of Canada.
Section 7 of the Act provides as follows:
7. (1) Subject to subsection (2), the Minister may, in his absolute discretion, wherever the exclusive right of fishing does not already exist by law, issue or authorize to be issued leases and licences for fisheries and fishing, wherever situated or carried on.
(2) Except as otherwise provided in this Act, leases or licences for any term exceeding nine years shall be issued only under the authority of the Governor in Council.
I note that no question arises in this case about the exercise of authority under section 7 of the Act by the Regional Director-General on behalf of the Minister, that is, no question arises about the delegation of the Minister’s authority under the Act.
On behalf of the applicant it is submitted that section 7 of the Act does not give the Minister the jurisdiction to impose a penalty for violations of fishing licence conditions. The applicant submits that the Act contains penal sections under which he could have been charged, and indeed certain charges were apparently laid. In the applicant’s view, there is no authority for the Minister to utilize section 7 as a mechanism to impose a penalty and that, by doing so, the Minister was attempting to thwart the court processes designed to provide procedural safeguards for a person charged under penalty provisions of the Act. Counsel urges that the administrative process here utilized permits fisheries officers to be investigators, prosecutors and judges in imposing penalties without the traditional safeguards ordinarily available under a judicial process, which Parliament specifically provided under sections 78 to 79.7 of the Act [ss. 78 (as am. by S.C. 1991, c. 1, s. 24), 78.1 to 78.6 (as enacted idem), 79 (as am. idem,) 79.1 (as enacted by R.S.C., 1985 (1st Supp.), c. 31, s. 97; S.C. 1991, c. 1, s. 24), 79.2 to 79.7 (as enacted idem)], for those accused of violations to be dealt with by prosecutions. The applicant submits the discretion granted by section 7 is either to issue or authorize the issuance of a licence, or not to do so. In the applicant’s view, penal provisions of the Act are to be construed in favour of the individual so that regular procedural protections, available in judicial proceedings for the individual, are preserved.
It is submitted, moreover, on the basis of newspaper articles concerning prosecutions for landing more fish than permitted by quota, that the penalties assessed against other individuals prosecuted in the courts under the Act have been less significant than was here assessed against the applicant. Excesses of quota much greater than those of the applicant, resulted in lesser costs in fines and forfeited catch, than was here estimated by DFO as the monetary cost to the applicant.
For the applicant it is submitted that to establish a requirement for licensing that prior licence conditions be complied with, amounts to enacting a general policy on the part of the Minister and his representatives that is, in essence, a legislative act. Moreover, it is urged the application of a policy in a manner which controls the discretionary judgment of the Minister is a fetter of the Minister’s discretion. Here, as noted, there were apparently DFO sanction guidelines for the Gulf Region, for snow crab licence violations, to be applied as conditions of future licences. In addition, the applicant submits that section 22 of the Regulations, which permits the Minister to impose conditions on licences issued, does not give the Minister the discretion to impose sanctions of the sort here applied as conditions of a licence, since those sanctions concern penalties for which the Act otherwise provides procedures.
One further concern of the applicant in this case is the timing of the action in regard to his licence. Violations in May and early June 1994 were considered in relation to issuing a licence in the following year, but that process was only instituted by DFO in January 1995 and a decision was not made until mid-April, just before the 1995 season opened. There was then no opportunity to question the decision by judicial review before the season opened, so that the penalty imposed, which was not subject to appeal within DFO, could not be questioned in any effective way before it was applied.
For the respondent it is submitted that the decision of the Minister in this case is an administrative decision. In the respondent’s view, section 7 of the Act, by granting to the Minister the right to issue a licence, also grants the authority to refuse the issuance of a licence, as was done at least for part of the season in these circumstances. The respondent submits that the decision regarding whether or not a licence should be issued is not penal in nature. Moreover, it is said, that the discretion of the Minister was not fettered by sanction policies developed in the Department, for here the sanction imposed in terms of lost quota was more severe in some respects than might have been imposed under those policies and at the same time the full range of sanctions possible under those policies was not imposed. The respondent submits that the infractions of the applicant are very serious and that he was given an opportunity to respond to the concerns raised for consideration of the Minister in connection with those infractions.
Counsel for the respondent urges that the Minister has absolute discretion in determining whether or not to issue a licence pursuant to section 7. In making the decision in this case it is said that the Regional Director-General, for the Minister, took into account the evidence submitted, including evidence of serious infractions of licence conditions by the applicant, as well as submissions from the applicant. I note the latter “submissions” appear to be a letter from counsel for the applicant which objected to the then proposed sanctions when the applicant was already being prosecuted and no decision had been rendered by the Court, and which requested information on the practices of the Department in regard to quota infractions, which counsel sought to enable preparation of “a proper defence” to the recommendations to restrict the 1995 licence. There appears to have been some confusion over the date of receipt of the letter, described as “submissions”, from counsel for the applicant, a letter to which there was no reply with any information requested by counsel. In the circumstances it seems somewhat unfair to consider the letter as though it contained submissions on the merits of the action then proposed by DFO.
Aside from any question of procedural fairness, in my view, the Minister here exceeded the jurisdiction granted under section 7 of the Act by refusing to grant the applicant a snow crab fishing licence for the first three weeks and reducing his quota by 50% for the 1995 season when the purpose of those limitations was to impose a penalty for violations of the Act committed by the applicant in 1994. There can be no doubt in this case that the purpose of the limitations was to impose a penalty. In the final paragraph of DFO’s Request for Decision directed to the Director-General this purpose is made clear.
This request is a result of his conditions of license being violated on four separate occasions contrary to Section 22(7) of the Fishing (General) Regulations. The quota overruns indicate a continual disregard for set harvest levels and the violation for not hailing to change crab areas symbolize a very difficult and historical enforcement problem in the P.E.I. Snow Crab Fishery. A sanction of this degree is necessary to provide a deterrence factor and thus help to protect this valuable resource ….
In the letter of decision dated April 12, 1995, as we have seen, addressed to Mr. Matthews, the Director-General refers to the documents submitted to him by the Department and the representations made on behalf of the applicant and then orders
… that the following penalty be applied to your Snow Crab fishing licence for Areas 25 and 26.
Your 1995 Snow Crab fishing license will not be issued for the first three weeks of the 1995 fishing season in Areas 25 and 26, and your 1995 Snow Crab quota be reduced by 50%.
In light of that stated purpose, in my view, this case is distinguishable from the circumstances in Everett v. Canada (Minister of Fisheries & Oceans) (1994), 25 Admin. L.R. (2d) 112 (F.C.A.), upon which the respondent here relies. In that case the Minister had refused to grant the applicant a fishing licence in 1993 because of violations of his licence, said to have occurred in 1990 when his actual landings, not properly reported, were found to have exceeded his quota by more than 100%. In Everett, the issue of whether the Minister had jurisdiction pursuant to section 7 of the Act to refuse to issue a licence in order to impose a penalty was not directly before the Court, at least as I read the decisions of my colleague Mr. Justice Denault, the Motions Judge, at (1993), 63 F.T.R. 279, and of the Court of Appeal, supra. In that case [at page 282] the Minister’s decision was said to be made in light of the record before him which indicated serious disregard for conservation principles, and for “the reason … that misreporting of catches and the exceeding of quotas are very serious conservation and control offenses.”
Madam Justice Desjardins, in Everett, stated (at page 119) that the proceedings before the Minister, i.e., considering a departmental recommendation that a licence not be issued, were “not penal in character.” The Minister was entitled to decide the matter on a balance of probabilities and no evidence was there tendered by the applicant. In that case Mr. Justice MacGuigan pointed out that there was no argument before the Court contesting the DFO report of very substantial overfishing, well in excess of his quota, by the applicant, which the Minister was entitled to take into account in a licensing decision. In this case, however, while it may be argued that the decision on behalf of the Minister was similar in general effect, though somewhat less drastic than that in Everett , it is clear from the letter of April 12, 1995, that the decision on behalf of the Minister in this case was intended to be penal in nature.
Under the Regulations the Governor in Council has provided for a wide variety of conditions to be imposed by the Minister in granting a licence. Not surprisingly, none of the conditions specifically referred to in section 22 of those Regulations includes reference to the imposition of penalties for past licence violations for the Act itself contains provisions for penal procedures. The Regulations do provide that compliance with the Act and Regulations is a condition of every licence (subsection 22(6)) and that no person acting under authority of a licence shall contravene the terms of the licence (subsection 22(7)).
The Act provides penalties and processes for dealing with those who contravene the Act or Regulations. The provisions include:
78. Except as otherwise provided in this Act, every person who contravenes this Act or the regulations is guilty of
(a) an offence punishable on summary conviction and liable, for a first offence, to a fine not exceeding one hundred thousand dollars and, for any subsequent offence, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year, or to both; or
(b) an indictable offence and liable, for a first offence, to a fine not exceeding five hundred thousand dollars and, for any subsequent offence, to a fine not exceeding five hundred thousand dollars or to imprisonment for a term not exceeding two years, or to both.
…
78.6 No person shall be convicted of an offence under this Act if the person establishes that the person
(a) exercised all due diligence to prevent the commission of the offence; or
(b) reasonably and honestly believed in the existence of facts that, if true, would render the person’s conduct innocent.
79. Where a person is convicted of an offence under this Act and the court is satisfied that as a result of committing the offence the person acquired monetary benefits or monetary benefits accrued to the person, the court may, notwithstanding the maximum amount of any fine that may otherwise be imposed under this Act, order the person to pay an additional fine in an amount equal to the court’s finding of the amount of those monetary benefits.
79.1 Where a person is convicted of an offence under this Act in respect of any matter relating to any operations under a lease or licence issued pursuant to this Act or the regulations, in addition to any punishment imposed, the court may, by order,
(a) cancel the lease or licence or suspend it for any period the court considers appropriate; and
(b) prohibit the person to whom the lease or licence was issued from applying for any new lease or licence under this Act during any period the court considers appropriate.
In addition, the Act provides for a variety of court orders, of prohibition or for directions, in addition to any penalty imposed upon conviction (section 79.2), for a further offence and penalty if the order of a court is contravened (section 79.6), and for proceeding by way of “ticketable offences” in the case of any violation of regulations under the Act, a process apparently intended to provide a simplified procedure for offences which the Governor in Council may by regulation direct to be dealt with by that process (section 79.7).
Under the Act, section 43 [as am. by R.S.C., 1985 (1st Supp.), c. 35, ss. 3, 7; S.C. 1991, c. 1, s. 12] provides a general regulatory authority for the Governor in Council, for carrying out the purposes and provisions of the Act, including the making of regulations for the management and control of sea-coast and inland fisheries; for the conservation and protection of fish; the issue, suspension and cancellation of licences; the terms and conditions under which a licence may be issued, and a variety of other matters. That provision does not specifically authorize the Governor in Council to provide by sanction or penalty for punishment for violation of the terms of a licence. Since that matter is specifically dealt with by Parliament under the Act, and is not specifically included in the regulatory authority vested in the Governor in Council or the Minister, in my opinion it is implicitly excluded from the regulatory powers delegated under the Act.
Parliament, by the Act, specifically provided for a variety of penalties, including a prohibition from gaining a new licence, to be imposed by a court, where procedural safeguards associated with the judicial process are available, and it did not authorize the imposition of penalties by another administrative process. In my opinion, it is implicit that Parliament did not intend that penal powers are to be exercised by the Minister. Thus, in exercising his or her authority to issue or not to issue a licence pursuant to section 7, the Minister may not do so for the purpose of imposing penalties or sanctions for past licence violations. It may be that past compliance with terms of a licence by an applicant can be a relevant factor for the Minister’s consideration as an aspect of conservation when deciding whether to issue a licence, as it was in Everett, but section 7 (the general licensing authority) may not be exercised for the primary purpose of penalizing an applicant. If the Minister wishes to impose a penalty against a person who has reportedly violated the Act, the Regulations, or the terms of his or her licence, Parliament, by providing the penal provisions of the Act, has directed how that purpose is to be met, by prosecution under the Act.
Since, in my opinion, the decision here was clearly intended for the purpose of penalizing the applicant for violating conditions of his 1994 snow crab licence that decision is outside the scope of the Minister’s authority pursuant to section 7. That section does not include the power to enforce penalties for offences for which prosecution is otherwise provided under the Act. The applicant is entitled to the procedural safeguards envisioned by the penal provisions of the Act, if a process of imposing penalties for violations of the Act or Regulations is to be undertaken. Reference was made earlier in these reasons to the written comment of the reporting fisheries officer that in the circumstances of this case the applicant could not raise a defence of due diligence. While no reference to this was made in argument, that appears to refer to the possible defence to a prosecution, a defence set out by section 78.6 of the Act, a defence which could not be denied by a fisheries officer if the applicant had been prosecuted under the Act for violation of his licence conditions. By the administrative process here applied, the investigating officer denies the validity of a claim to a statutory defence, without any discussion of the matter with the applicant.
For these reasons the application for judicial review is allowed. In the usual case this would lead to an order that the decision of the Minister dated April 12, 1995, determining not to issue the applicant a snow crab fishing licence for the first three weeks of the 1995 season and reducing his quota allocation by 50%, be quashed or set aside. In turn that would lead to reconsideration of the applicant’s licence application by the Minister. Here any such reconsideration would not provide any effective relief, for a licence for 1995 would be ineffectual even if it were to be issued.
Nevertheless, the issue here raised remains a vital one for future seasons. In the circumstances, while declaratory relief was not specifically here sought, that seems to me the appropriate relief in light of my conclusion about the Minister’s decision in this case. That conclusion is that, whatever else is included in the discretion of the Minister under section 7 of the Act, that discretion does not include the authority to impose conditions for the purpose of assigning penalties for past violations of the Act, the Regulations or conditions of licences. The order now issued so declares. Parliament has already provided a process for dealing with such violations under sections 78 to 79.7 of the Act and has not authorized the making of regulations that would permit the imposition of penalties by processes other than those set out in the Act.
In written submissions on behalf of the respondent it is submitted that the proper respondent in this matter is the Attorney General of Canada, not the Minister of Fisheries and Oceans of Canada, as originally named by the applicant (Canada (Human Rights Commission) v. Canada (Attorney General), [1994] 2 F.C. 447(C.A.)). I accept this submission and the order now issued provides that henceforth the respondent in these proceedings shall be the Attorney General, and the style of cause is so amended.