T-831-85
Adelbert Wayne MacKinnon and Jonathan &
Amy Fisheries Limited (Plaintiffs)
v.
The Queen in right of Canada as represented by
the Department of Fisheries and Oceans and the
Minister of Fisheries and Oceans (Defendants)
INDEXED AS: MACKINNON V. CANADA (FISHERIES AND
OCEANS)
Trial Division, Martin J.—Halifax, March 24 to
28; Ottawa, September 19, 1986.
Fisheries — Sector Management Plan geographically limit
ing areas of operation of vessels under 65 feet long — Plan
dividing East Coast fisheries into three sectors — Providing
for cross-over by vessels with established pattern of fishing in
more than one sector — Longliner licence granted plaintiff
authorizing fishing in Scotia-Fundy Sector only — Under
standing by plaintiff licence would cover Eastern Canada —
Restrictions Mira vires Parliament — Parliament's authority
to regulate fisheries including right to determine areas where
fishery may be prosecuted — Once legislative authority to
regulate established, Parliament's motivation irrelevant —
Action dismissed — Constitution Act, 1867, 30 & 31 Vict., c. 3
(U.K.) [R.S.C. 1970, Appendix II, No. 51 (as am. by Canada
Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act,
1982, Item 1), ss. 91(12), 92 — Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 52(1) —
Fisheries Act, R.S.C. 1970, c. F-14.
Constitutional law — Charter of Rights — Equality rights
— Fisheries' Sector Management Plan restricting geographical
areas of operation of vessels under 65 feet long — Plaintiff
allegedly discriminated against as forbidden to fish except in
home port sector — Restrictions rationally connected to valid
federal purpose — Policy not imposed upon few individual
fishermen — Plan part of overall policy to manage and control
fishery with view to conservation as well as profitable prosecu
tion — Detrimental economic effects and imbalance in fish
stocks likely without policy — Canadian Charter of Rights
and Freedoms, being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 1, 15(1).
Constitutional law — Charter of Rights — Mobility rights
— Sector Management Plan dividing Eastern Canada fishery
into three sectors — Plaintiff licensed to fish in Scotia-Fundy
Sector only — Whether Plan contrary to s. 6(2)(b) as prevent
ing plaintiff from leaving resident Province of Nova Scotia to
work in Newfoundland — Province of residence irrelevant —
Restrictions applicable to plaintiff because owner of under 65
feet longline vessel with no established pattern of fishing in
more than one sector — Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.), s. 6(2)(a),(b).
For the facts of the case, refer to the Editor's Note infra.
Held, the action should be dismissed.
The plaintiff's submission, that the limitations imposed upon
his licence were ultra vires the federal government, was without
merit. Parliament's legislative authority to regulate fisheries
has been established since 1898. That authority includes the
right to determine the times during which fish may be caught
and the means employed to catch them. It also includes the
right to determine the areas in which fishermen may or may
not prosecute the fishery.
In the case at bar, Parliament's motivation in formulating
fishing regulations was not a factor to be taken into consider
ation. Once determined that Parliament has the legislative
authority to regulate any particular field of law, it is not open
to the courts, when considering the vires of the legislation
enacted under subsection 91(12) of the Constitution Act, 1867,
to question Parliament's motivation or the wisdom of the
legislation.
The plaintiff's attack upon the Sector Management Plan by
reason of subsection 15(1) of the Charter could not prevail. The
plaintiff argued that he was discriminated against in that he
was forbidden to prosecute the ground-fish fishery except in his
home port sector. Reference was made to the twofold test set
out in Smith, Kline, a decision of this Court, to determine
whether a legislative distinction created discrimination: "the
ends", it was stated, "must be among those broadly legitimate
for a government, and the means must be rationally related to
the achievement of those ends". The Sector Management Plan
was not a policy imposed upon a few individual fishermen. It
was part of an overall policy directed to the management and
control of the Atlantic section of Canada's fisheries in a
manner so as to provide for the conservation and preservation
of fish as well as for the profitable prosecution of the fishery by
the owners and operators of vessels engaged in it. To allow the
more efficient vessels under 65 feet in length to fish in areas far
from their home ports would likely have detrimental economic
effects on the operators of other vessels and fleets and cause an
imbalance in the carefully allocated fish stock quotas. The
restrictions imposed were rationally connected to a valid federal
purpose. They were neither arbitrary nor capricious: they were
the result of expert advice and extensive consultation.
The plaintiff also challenged the Plan as violating paragraph
6(2)(b) of the Charter. It was said that the Plan prevented him
from leaving his resident Province of Nova Scotia to work in
the Province of Newfoundland. Paragraph 6(2)(b) protects the
right of citizens and permanent residents to pursue their liveli
hood in any province, even though they may not be residents
thereof. This argument was to be rejected. The plaintiff was not
prevented from prosecuting the ground-fish fishery in New-
foundland because he was a resident of the Province of Nova
Scotia but because he was the owner of an under 65-foot
longliner who had never fished in the Newfoundland Sector
previously. The restriction applied, not just to the fishermen
who had solely fished in the Scotia-Fundy Sector and who were
residents of Nova Scotia but to any other fishermen who had
fished exclusively in a single sector. The Plan was one of
general application that did not discriminate against the plain
tiff by reason of his province of residence.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Fishing Vessel Owners Association of British Columbia
v. Attorney General of Canada, T-1356-84, Federal
Court, Trial Division, judgment dated July 13, 1984, not
reported; reversed [1985] 1 F.C. 791 (C.A.); Gulf Troll -
ers Association v. Minister of Fisheries and Oceans,
[1984] 2 F.C. 398; [1984] 6 W.W.R. 220 (T.D.); Attor-
ney-General for the Dominion of Canada v. Attorneys-
General for the Provinces of Ontario, Quebec, and Nova
Scotia, [1898] A.C. 700 (P.C.); Smith, Kline & French
Laboratories Limited v. Attorney General of Canada,
[1986] 1 F.C. 274; Attorney-General for Canada v.
Attorney General for Quebec, [1921] 1 A.C. 413 (P.C.).
REFERRED TO:
Attorney-General for Canada v. Attorney-General for
British Columbia, [1930] A.C. 111 (P.C.); B.C. Packers
Ltd. v. Canada Labour Relations Board, [1976] 1 F.C.
375 (C.A.); Fowler v. The Queen, [1980] 2 S.C.R. 213;
The Queen v. Robertson (1882), 6 S.C.R. 52.
COUNSEL:
S. Clifford Hood for plaintiffs.
A. R. Pringle for defendants.
SOLICITORS:
Hood & Associates, Yarmouth, Nova Scotia,
for plaintiffs.
Deputy Attorney General of Canada for
defendants.
EDITOR'S NOTE
His Lordship's 29-page reasons for judgment
herein have been selected for publication as
abridged.
The plaintiff sought damages against the Crown
on alternative grounds. It was firstly alleged that
the Crown was in breach of contract in refusing to
issue a longline fishing licence covering all of
Eastern Canada contrary to an agreement to do
so. In the alternative, that plaintiff had acted to his
detriment in reliance upon a misrepresentation to
the effect that he would be protected in the event
of a freeze in the granting of licences during
construction of a new fishing vessel. The plaintiff
additionally sought damages for the improper
arrest of his fishing boat and for being wrongfully
prevented from engaging in the fishery.
The above-mentioned allegations were without
merit. While the Department of Fisheries and
Oceans had given a commitment that a licence
would be granted, nothing was said as to the
geographical area that it would cover. Between
the date of the commitment letter and the com
pletion of plaintiff's vessel, a new licensing poli-
cy—known as the Sector Management Plan—
was adopted. This new policy, for the first time,
involved geographical restrictions upon longliner
fishing licences. The licence granted plaintiff
authorized fishing in the Scotia-Fundy Sector only.
Plaintiff could not be heard to complain since no
government official had given any guarantee as to
the waters in which he would be permitted to fish
and he was treated no differently than any other
longliner issued a licence in 1982. The allegation
of being wrongfully prevented from engaging in
the fishery had to be rejected as no evidence in
support thereof was adduced. Nor was the claim
relating to improper arrest substantiated. Plain
tiff's vessel was boarded by Fisheries officers
when fishing off Newfoundland—an area not
included in plaintiff's licence. No argument was
advanced by counsel in support of the allegation
that the arrest was improper.
This was not, however, an end of the matter
since the plaintiff advanced claims of a more
general nature. These were: (1) the federal
regulatory power over fisheries does not extend
to implementation of the Sector Management Plan
for Longline Fishing; (2) even if the power does
exist, the existing legislation does not authorize it;
(3) even if the power both exists and its exercise
has been authorized by Parliament, the Plan is
void in view of Charter sections 6(2)(b) and 15(1).
Plaintiff's arguments are in the alternative: either
there has been an interference with mobility rights
in not being allowed to fish off Newfoundland or a
denial of equal treatment and discrimination
based on place of residence. The plaintiff sought
prohibition against the enforcement of the Sector
Plan, certiorari quashing the restrictions in plain
tiff's licence and a writ of mandamus compelling
the granting of a hearing prior to continued re
striction of plaintiff's licence privilege.
Evidence was led by the defendants to the
effect that the Sector Management Plan had been
devised for the benefit of small inshore vessels
and fleets in local areas. Formerly, the inshore
fleet—vessels under 65 feet in length—had
fished close to home ports. But by 1979 Fisheries
officials had become concerned that with the
improvement in vessels and equipment, the
inshore fleet would have greater mobility and that
this would operate to the detriment of smaller
fishing boats. It was said that less than 5% of
vessels under 65 feet in length fish across the
proposed sector boundaries. The policy provided
for cross-over by vessels with an established
pattern of fishing in more that one sector. Plaintiff
contends that the division between the Scotia-
Fundy and Newfoundland Sectors is in reality a
political line drawn to protect Newfoundland fish
ermen at the expense of those from Nova Scotia.
There was, however, testimony for the defen
dants that the purpose of the divisions was to
better administer fish stocks and the fact that the
Gulf Sector was shared by four provinces was
pointed to as contradicting the suggestion that
the Plan was an attempt to establish provincial
preserves.
The following are the reasons for judgment
rendered in English by
MARTIN J.: The essence of the ultra vires argu
ment is that the Sector Management Plan, being
directed to the regulation of the fisheries for the
benefit of fishermen resident in separate provinces
and separate classes of fishermen, does not come
within Parliament's authority to regulate the fish
eries which, it is submitted, is limited to laws
which are directed at the preservation and protec
tion of the fish stocks and laws necessarily inciden
tal to that purpose.
In this respect it is submitted that even if the
Sector Management Plan is properly motivated by
conservation considerations it is primarily and
improperly motivated and directed at the social
and economic conditions of the fishermen. As the
valid purpose cannot be separated from the invalid
purpose it is submitted that the whole scheme
must be declared ultra vires.
The plaintiff's submissions are based upon the
decisions of Mr. Justice Collier of this Court in
Fishing Vessel Owners Association of British
Columbia v. Attorney General of Canada
(unreported), July 13, 1984, T-1356-84 and Gulf
Trollers Association v. Minister of Fisheries and
Oceans, [1984] 2 F.C. 398; [ 1984] 6 W.W.R. 220
(T.D.).
In the first case Mr. Justice Collier found that
the proposed federal fishing plans on the West
Coast to divert a greater portion of the allowable
salmon catch to gill netters was not based on any
ground of preservation or conservation but was
solely socio-economic to ensure that a greater por
tion of the salmon fishing industry business and its
source of economic livelihood went to fishermen
who used gill net gear and was thus beyond the
legislative powers of Parliament which were lim
ited to legislation for protection and conservation
reasons and to legislation for the management and
control of the fisheries necessarily incidental to
their protection.
In the second and similar case, Mr. Justice
Collier found that a plan to reallocate salmon
stocks between trolleys and sports fishermen, being
prompted, in part, by socio-economic management
allocations was beyond permissible constitutional
powers and must fall.
The first decision was an application for an
interlocutory injunction which was granted by Mr.
Justice Collier but was set aside on appeal by the
Federal Court of Appeal [[1985] 1 F.C. 791] on
grounds not related to the validity of the
legislation.
The second decision was an application for cer-
tiorari which was allowed by Mr. Justice Collier.
The decision was appealed but to date there has
been no disposition of that appeal. *
In the pleadings the plaintiff says that conserva
tion and other considerations are involved in the
Sector Management policy and that to the extent
that socio-economic considerations are involved
these considerations are not necessarily disparate.
The evidence of the expert witnesses led by counsel
for the defendants however is quite specific. Not
only are social and economic considerations
involved in the regulation of the fisheries but
There must be social and economic considerations in natural
resource use. (Hanson, exhibit 48, para. 17.)
and
That in my opinion if the Department were obliged to exclude
all socio-economic considerations from its management of the
fishery this would seriously impede its ability to manage and
control the fishery for any purpose. (MacDonald, exhibit 49,
para. 24.)
I do not accept the plaintiffs contention that
social and economic considerations or motivations
in the formulation and enactment of fishing regu
lations are not permissible. For the purpose of
considering the vires of the impugned provisions of
the Fisheries Act and the Regulations made under
* Editor's Note: Judgment has been rendered by the Court of
Appeal (A-1076-84) on November 3, 1986.
the Act, motivation, in this case, is irrelevant.
Once it is determined that Parliament has the
legislative authority to regulate any particular
field it is not for the courts, when considering the
vires of the legislation under subsection 91(12) [of
the Constitution Act, 1867, 30 & 31 Vict., c. 3
(U.K.) [R.S.C. 1970, Appendix II, No. 5] (as am.
by Canada Act 1982, 1982, c. 11 (U.K.), Schedule
to the Constitution Act, 1982, Item 1)], to ques
tion Parliament's motivation or the wisdom of the
legislation.
Here there is not even the slightest suggestion
that the restrictive conditions complained of are a
matter for regulation by a legislature under the
subject of property and civil rights within the
province or under any other section 92 heading.
No argument was advanced, nor could there be,
that the restrictive conditions did not relate to the
fisheries. The only argument made was that, being
prompted or motivated by social and economic
reasons, the restrictions are void.
This is not a case where the defendants have to
meet any challenge to the vires of the restrictive
conditions on the basis that they are necessarily
incidental to the preservation or conservation of
the fish stocks because such conditions are proper
ly within the legislative authority of a province. It
is not even argued that the legislatures have the
authority to impose such restrictions.
Parliament's authority to regulate the fisheries
was established early. In Attorney-General for the
Dominion of Canada v. Attorneys-General for the
Provinces of Ontario, Quebec, and Nova Scotia,
[1898] A.C. 700 (P.C.), Lord Herschell, who dis
tinguished between the regulatory authority over
the fisheries and proprietary rights to the fisheries,
concluded at page 714 that:
Regulations controlling the manner of fishing are undoubtedly
within the competence of the Dominion Parliament.
and at page 716:
... in their Lordships' opinion all restrictions or limitations by
which public rights of fishing are sought to be limited or
controlled can be the subject of Dominion legislation only....
In Attorney-General for Canada v. Attorney
General for Quebec, [1921] 1 A.C. 413 (P.C.), at
page 420, Viscount Haldane referred to the earlier
decision and made the following comment:
But to the Dominion had been given by s. 91 of the British
North America Act, 1867, exclusive legislative jurisdiction over
sea coast and inland fisheries. This power to legislate was so
sweeping in its terms that it could extend to what practically
might be a modification of the character of the proprietary title
of a Province, and it was not possible to lay down in abstract
terms a priori a limit to this power of legislation. All that Lord
Herschell could say in delivering their Lordships' opinion was
that if the Dominion were to purport to confer on others
proprietary rights which it did not itself possess, that would be
beyond its power. In other words, the capacity conferred by
s. 91 extended to regulation only, however far regulation might
proceed.
In later cases legislation purported to be enacted
under subsection 91(12) has been declared ultra
vires on the grounds that it was properly the
subject of provincial legislative authority (Attor-
ney-General for Canada v. Attorney-General for
British Columbia, [1930] A.C. 111 (P.C.); B.C.
Packers Ltd. v. Canada Labour Relations Board,
[1976] 1 F.C. 375 (C.A.); Fowler v. The Queen,
[1980] 2 S.C.R. 213) but, as already indicated,
that has not been suggested in this case.
The restrictive conditions complained of in this
matter relate to the limitations imposed upon the
plaintiff to fish in certain areas in Eastern Canada.
When, in The Queen v. Robertson (1882), 6
S.C.R. 52, at page 120, Ritchie C.J. said that the
legislation contemplated by subsection 91(12) was
legislation tending to the regulation, protection
and preservation of the fisheries, he was not laying
down an exhaustive description of the federal
regulatory authority but was citing those areas of
federal authority in contradistinction to the au
thority of the legislatures to enact proprietary laws
relating to the fisheries. It was in this respect that
subsequent arguments were made on the right of
Parliament to enact legislation, necessarily inci
dental to its right to regulate the fisheries, which
legislation was sometimes found to be ultra vires
as being in the provincial field.
The federal authority to regulate the fisheries
undoubtedly includes the right to determine the
times during which fish may be caught and the
means employed to catch them. It also includes, in
my opinion, the right to determine the areas in
which fishermen may or may not prosecute the
fishery. The plaintiff's submission that the limita
tions imposed upon his licence are ultra vires as
being beyond the legislative competence of Parlia
ment under subsection 91(12) is not well founded.
I have considered the vires of the restrictive
conditions by the traditional method of determin
ing whether they fall within federal legislative
competence and without reference to the Canadian
Charter of Rights and Freedoms [being Part I of
the Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.)]. There remains for
me to consider whether under subsection 52(1) of
the Constitution Act, 1982 [Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.)], and sections 15(1)
and 6(2)(b) of the Charter, the conditions com
plained of are of no force and effect against the
plaintiff and others affected by them.
In this respect I am indebted to counsel for the
defendants who, I suspect out of a sense of fairness
to counsel for the plaintiff, elected not to file a
written brief when none was filed on behalf of the
plaintiff but who had, prior to the trial, submitted
a pre-trial memorandum of fact and law. Their
analysis of the transition from the earlier Bill of
Rights cases into the more recent decisions on the
Charter has been, as far as I am able to determine,
thorough and helpful.
Dealing first with the plaintiff's attack upon the
Sector Management Plan by reasons of subsection
15 (1) of the Charter, I take as my starting point
the November 18, 1985 decision of Mr. Justice
Strayer of this Court in Smith, Kline & French
Laboratories Limited v. Attorney General of
Canada, [ 1986] 1 F.C. 274, in which, at pages 318
to 320 he says:
It appears to me that by its express references to certain
forms of discrimination, namely "race, national or ethnic
origin, colour, religion, sex, age or mental or physical disabili
ty", subsection 15(1) is clearly intended to proscribe any
distinctions based on those grounds. Any such distinctions, if
they are to be defended, must be justified under section 1. It
may be that distinctions based on certain grounds such as age
may be more readily justified under section 1 but the onus must
be on the defender of such a distinction even then.
With respect to other kinds of distinctions which may be
made by legislation, it appears to me that no such presumption
arises of discrimination and that it is necessary to analyze such
distinctions more closely to determine whether they can be
regarded as in conflict with subsection 15(1). I do not think it
could have been the intention that every distinction drawn by
legislation between citizens or classes of citizens should
automatically be regarded as "discrimination" within subsec
tion 15(1) and thus immediately cause a shift in onus to a
defender of the legislation to justify it under section 1. It is the
business of legislatures to make distinctions for a myriad of
reasons and it is inconceivable that every one of these should
place on the government, or on any one else relying on such
legislation, the onus of showing that it is "justified in a free and
democratic society". This would shift to the courts a decisional
right and burden which would be unacceptable both to them
and the legislatures.
One must therefore seek criteria to aid in determining wheth
er a legislative distinction creates an inequality which is dis
criminatory, taking "discrimination" to mean the kind of dis
tinction prohibited by subsection 15(1). It would not, I think,
be appropriate to rely solely on tests commonly used with
respect to the interpretation of paragraph 1(b) of the Canadian
Bill of Rights, having regard to the more narrow scope of that
provision and the statutory nature of the instrument in which it
was found. I would, however, with respect adopt the language
of McIntyre J. with whom Dickson J. concurred in MacKay v.
The Queen supra, at page 406 (also quoted supra [at pages
311-312]):
The question which must be resolved in each case is
whether such inequality as may be created by legislation
affecting a special class—here the military—is arbitrary,
capricious or unnecessary, or whether it is rationally based
and acceptable as a necessary variation from the general
principle of universal application of law to meet special
conditions and to attain a necessary and desirable social
objective.
I would respectfully observe that in my view there is no magic
in the concept of a "class": it has no definition, provides no
standard, but is merely a subjective concept. It can therefore
not, by itself, be a basis for determining, when a "class" is
somehow created or divided legislatively, that discrimination
exists. It appears to me that this was not the sense in which
McIntyre J. made reference to a "special class" and all I
understand him to be saying is that if a certain number of
people in society are treated differently there should be a
rational basis for distinguishing between them and the rest of
society.
It will be seen that this test is twofold: the ends must be
among those broadly legitimate for a government, and the
means must be rationally related to the achievement of those
ends.
It is claimed by the plaintiff that the Sector
Management Plan discriminates against him and
other operators of under 65-foot longliners in that
they are forbidden to prosecute the ground-fish
fishery except in their home port sector or area.
Whatever the merits of that allegation, the dis
crimination, if it exists at all, is not based upon
any of the specifically proscribed grounds of "race,
national or ethnic origin, colour, religion, sex, age
or mental or physical disability" and thus the
restrictions are not required to be justified by the
defendants under section 1 of the Charter.
The Sector Management Plan is not a policy
imposed upon a few individual fishermen in isola
tion. It is but a single portion of the overall federal
policy for the Atlantic Coast Commercial Fisher
ies Licensing System which is directed to the
management and control of that section of Cana-
da's fisheries in such a manner so as to provide,
not only for the conservation, preservation and
rehabilitation of the fish stocks, but for the effec
tive, profitable and continued prosecution of the
fishery by the owners and operators of the various
types of vessels engaged in it.
The fisheries, as I appreciate the term, is more
than fish or the preservation and conservation of
fish. It includes those who prosecute it, and the
means, times and places of its prosecution. It is not
only desirable but, in my view, essential that the
federal authorities consider in their regulatory
schemes or licensing systems for the fisheries, the
fishermen and the social and economic impact on
their livelihood of an orderly system for allocating
the available fish stocks to the several groups,
categories or classes of operators.
The relatively unrestricted prosecution of, the
fisheries in the 1960's led or significantly con
tributed to its near collapse in the 1970's. The
stringent correctional measures combined with
Canada's 200-mile fishing zone led to its rehabili
tation in the 1980's. The improving capability,
efficiency and mobility of the inshore under
65-foot fishing vessels enabled the more modern
ones to fish in areas far from their home ports and
in competition with other classes of vessels and
other local fleets of the same vessels with which
they had not previously competed.
If allowed to continue, this trend could not only
have serious detrimental economic effects on the
operators of the other vessels and fleets but would
likely cause an imbalance in the carefully and
conservationally allocated fish stock quotas.
As Mr. Bellefontaine said, the Sector Manage
ment Plan was designed to balance the level of
effort against the resources available. Too many
vessels chasing too few fish had already proved to
be disastrous. Accordingly the federal authorities
imposed quotas, fleet, enterprise or vessel, on the
offshore and midshore fleets as well as strict
reporting and surveillance procedures. Being few
in number the vessels of these fleets could be
relatively easily monitored.
However the inshore fleet of vessels under 65
feet and numbering some 15,000 could not be
effectively monitored or controlled by the same
methods. In view of the fact that so few of them
ever fished outside their home port sectors it was
determined that a practical method of at least
partially monitoring them and of limiting the trend
towards a far ranging inshore fleet that was de
veloping, would be to restrict them to their home
sectors. At the same time provision was made for
those few vessels of the inshore fleet which had
fished across the proposed sectors to continue to
enjoy the privilege of doing so.
I cannot find that those restrictions imposed on
the inshore fleet were not rationally connected to a
valid federal purpose. Nor can I find that the
restrictions imposed on the fleet were arbitrary or
capricious. The means employed were as a result
of the advice received by the Department from the
experts in the field and only after there was exten
sive consultation with all groups likely to be affect
ed by the implementation of the policy.
If the plaintiff was and is being treated differ
ently from other fishermen, and in this respect he
is not being treated any differently than any other
"inshore fishermen" the defendants have shown
convincingly that there is a rational basis for the
difference. Accordingly the plaintiff's attack on
the Sector Management Plan on the basis of sub
section 15(1) of the Charter must fail.
The plaintiff also challenges the Plan as offend
ing against paragraph 6(2)(b) of the Charter on
the grounds that the restrictive conditions imposed
prevent him from pursuing his livelihood, presum
ably, in the province of Newfoundland.
The defendants submit that the right protected
is the right to move to another province to earn a
livelihood and that the Sector Management Plan
does not prevent this. They also argue that the
area from which the plaintiff has been excluded is
not "in any province" but is an area of the Atlan-
tic Ocean for which, with respect to the fisheries at
least, is exclusively under federal regulation so
that there is no danger of the interprovincial trade
barriers which section 6 was meant to prevent and
no possibility of anyone taking up residence in the
area in question. They conclude that paragraph
6(2)(b) has no relevance to the circumstances of
the present case.
While it is appealing in its simplicity, I do not
accept that argument completely. I agree that
paragraph 6(2)(a) has the application referred to
above but that paragraph 6(2)(b) protects a differ
ent right. Paragraph 6(2)(b) protects the right of
citizens and permanent residents to pursue their
livelihoods in any province even though they may
not be residents. It is this paragraph upon which
the plaintiff relies to support his claim that the
Sector Management Plan is void because it pre
vents him, not from taking up residence and work
ing in the province of Newfoundland, but from
leaving his resident province of Nova Scotia to
work in the province of Newfoundland.
Leaving aside, for the moment, the argument
that the proscribed area is not in any province, can
it be said that the restrictive conditions are direct
ed at non-residents of any province or that they
discriminate against the plaintiff on the basis of
his province of present residence? I do not think
so.
The geographical restrictions imposed upon the
inshore fishing fleet are of general application to
all fishermen of the fleet. The restrictions are
imposed, not on the basis of the fishermen's prov
ince of present or previous residence but on the
basis of the areas where, historically, the fisher
men of that fleet had previously pursued the fish
ery. The plaintiff is not prevented from prosecut
ing the ground-fish fishery in Sector I because he
is a resident of the province of Nova Scotia but
because he is the owner of an under 65-foot long-
liner who had never fished in Sector I previously.
This restriction applies, not just to the class of
fishermen who have solely fished Sector III and
who are residents of Nova Scotia but to any other
fishermen who have fished exclusively in a single
sector.
In other words the restriction is not applied to
the plaintiff because he is a resident of Nova
Scotia or he is not a resident of Newfoundland but
because there is a limited inter-sector fishery, lim
ited to those who have previously fished across
sector lines.
Accordingly, I find that if the plaintiff is being
excluded from pursuing his livelihood in any area
the exclusion is brought about by a plan of general
application that does not discriminate against him
by reason of his province of residence.
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.