Gavin v R,

Date16 March 1956
CourtSupreme Court (Trial Division) of Prince Edward Island (Canada)
Canada, Supreme Court of Prince Edward Island.

(Campbell C.J.; MacGuigan and Tweedy JJ.)

Gavin et Al.
and
The Queen.

International Law — Relation to Municipal Law — Right in International Law to Extend Jurisdiction beyond Low-water Mark — Necessity for Municipal Legislation — The Law of Canada.

Jurisdiction — At the Maritime Frontier — Right Under International Law to Extend Jurisdiction Beyond Low-Water Mark — Necessity for Municipal Legislation — The Law of Canada.

The Facts.—Seventeen fishermen were convicted by Hinton Stipendiary Magistrates for contravening s. 7 (b) of the Lobster Fishery Regulations for the Maritime Provinces of Quebec, and four canners were convicted for contravening s. 15 of the same Regulations. The Regulations imposed restrictions on the time and size of the lobster catch in certain areas of the Gulf of St. Lawrence opposite Nova Scotia, New Brunswick and Prince Edward Island. Appeals were made against all twenty-one convictions, one1 of the grounds of appeal relied upon by the appellants being:

“1. (1) Apart from statute the realm of England, and of Canada, extends but to the shore. Any 3-mile or other limit must, in accordance with International Law, be fixed by statute or Treaty and not by Regulation, and the [Fisheries] Act [R.S.C. 1952, c. 119] is silent in this regard …

“(2) Sec. 7(b) of the Regulations is consequently ultra vires.”

Held: that the convictions of the seventeen fishermen, but not of the four canners, must be quashed. The extension of the territorial jurisdiction of a State beyond low-water mark, which international law permits for certain purposes and with certain restrictions, must be enacted by a competent Legislature; s. 7 (b) of the Regulations does not adequately define the area to which it applies, and so does not constitute a sufficient legislative extension of territorial jurisdiction.

Campbell C.J., after considering various points of municipal law, said: “The most important and most far-reaching ground of appeal

is that numbered 1, and subdivided into paras. (1) and (2). There does not appear to be any judicial authority to dispute the appellants' submission that extension of the territorial jurisdiction of a realm beyond its low-water mark cannot rest upon common law alone, but must be enacted by a competent Legislature. The principle laid down to that effect by Lord Cockburn C.J. and a number of the other Judges in R. v. KeynELR, (1876), 2 Ex. D. 63, seems to have become the accepted law on the subject. The realm of Canada, as that of England, extends by common law to low-water mark, and all beyond is the high seas

“Despite the entry of Newfoundland into Confederation, and the consequent practical surrounding of the Gulf of St. Lawrence by Canadian lands, I take it to be conceded by the respondent that the Gulf is still an external sea, and is not a bay, gulf, or estuary which might fall within the doctrines relating to waters ‘inter fauces terrae’ (whether, or not, these doctrines have an application to an objection such as the present).

“In R. v. Keyn, beginning at p. 176, Lord Cockburn C.J. gives a comprehensive and scholarly analysis of the writings of international authorities on the topic of jurisdiction over littoral seas, He summarizes his analysis at p. 193, as follows: ‘This unanimity of opinion that the littoral sea is, at all events for some purposes, subject to the dominion...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT