R. v. Corcoran (J.F.), (1999) 181 Nfld. & P.E.I.R. 341 (NFTD)

• Judge: Adams, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: October 19, 1999
• Jurisdiction: Newfoundland and Labrador
• Citations: (1999), 181 Nfld. & P.E.I.R. 341 (NFTD)

R. v. Corcoran (J.F.) (1999), 181 Nfld. & P.E.I.R. 341 (NFTD);

    550 A.P.R. 341

MLB headnote and full text

Temp. Cite: [1999] Nfld. & P.E.I.R. TBEd. OC.030

James Francis Corcoran (appellant) v. Her Majesty The Queen (respondent)

(1998 St. J. No. 2581)

Indexed As: R. v. Corcoran (J.F.)

Newfoundland Supreme Court

Trial Division

Adams, J.

October 19, 1999.

Summary:

A provincial court judge determined that a variation order closing the cod fishery was defective and invalid because it was vague and uncertain. He acquitted the accused of a charge of fishing for cod during a closed time. The Crown appealed.

The Newfoundland Supreme Court, Trial Division, in a decision reported at 153 Nfld. & P.E.I.R. 318; 475 A.P.R. 318, allowed the appeal and remitted the matter to the trial judge for a continuation of the trial.

The Newfoundland Provincial Court, in a decision not reported in this series of reports, convicted the accused. The accused appealed.

The Newfoundland Supreme Court, Trial Division, dismissed the appeal.

Administrative Law - Topic 1271

Classification of power or function - Powers or functions classified as legislative - Fishing regulations and quotas - Section 4 of the Atlantic Fishery Regulations stated that "A Regional Director-General may, by order, vary any close time or fishing quota fixed by these Regulations" - The New­foundland Supreme Court, Trial Division, held that the decision to vary a close time was legislative in nature, not administrative - Nevertheless, the Regional Director-General implicitly had the power to appoint someone to act in his stead during a temporary absence - The court held that the Regional Director-General properly appointed Slade, the Director of Small Craft Harbours, to act on his behalf for a couple of days in his absence and that a variation order signed by Slade during that time, changing the fishery close time, was valid.

Administrative Law - Topic 7565

Delegated powers - Subdelegation of powers - Prohibition against delegation by delegate (delegatus non potest delegare) - [See Administrative Law - Topic 1271 and second Statutes - Topic 5310 ].

Fish and Game - Topic 2176

Fishing offences - Fishing in closed season - [See Administrative Law - Topic 1271 ].

Statutes - Topic 5310

Operation and effect - Delegated legisla­tion - General and definitions - Power of subdelegation - When conferred - [See Administrative Law - Topic 1271 ].

Statutes - Topic 5310

Operation and effect - Delegated legisla­tion - General and definitions - Power of subdelegation - When conferred - The Newfoundland Supreme Court, Trial Divi­sion, stated that "this maxim [delegatus non potest delegare] is a rule of construc­tion, not a rule of law. In applying it to statutory interpretation, one must have regard to the entire statute under consider­ation to discover the full object and pur­pose of the legislation." - See paragraph 24.

Cases Noticed:

Gulf Trollers Association v. Canada (Min­ister of Fisheries and Oceans) (1986), 72 N.R. 31; 32 D.L.R.(4th) 737 (F.C.A.), refd to. [para. 9].

R. v. Drake (E.J.) et al. (1996), 139 Nfld. & P.E.I.R. 136; 433 A.P.R. 136 (Nfld. Prov. Ct.), refd to. [para. 16].

R. v. Brown, [1989] N.S.J. No. 134 (Co. Ct.), refd to. [para. 16].

R. v. Harrison, [1977] 1 S.C.R. 238; 8 N.R. 47, refd to. [para. 32].

Canadian Bronze Co., CAE Metal Abras­ive Division v. Deputy Minister of National Revenue for Customs and Excise (1985), 57 N.R. 338 (F.C.A.), dist. [para. 41].

Statutes Noticed:

Atlantic Fishery Regulations - see Fisheries Act Regulations (Can.).

Fisheries Act, R.S.C. 1985, c. F-14, sect. 43(a), sect. 43(b), sect. 43(c), sect. 43(l), sect. 43(m) [para. 29].

Fisheries Act Regulations (Can.), Atlantic Fishery Regulations, SOR/91-76, sect. 4 [para. 30].

Interpretation Act, R.S.C. 1985, c. I-21, sect. 24(1)(c), sect. 24(4) [para. 35]; sect. 24(5) [para. 39].

Authors and Works Noticed:

Black's Law Dictionary (5th Ed.) [para. 23].

de Smith, S.A., Judicial Review of Administrative Action (4th Ed. 1980), p. 71 [para. 20].

Willis, John, Delegatus Non Potest Delegare, 21 Can. Bar Rev., pp. 257 [para. 24]; 259 [para. 25]; 260 [para. 26], 264 [para. 27].

Counsel:

V. Randell J. Earle, Q.C., for the appel­lant;

Anne M. Fagan, for the respondent.

This appeal was heard by Adams, J., of the Newfoundland Supreme Court, Trial Divi­sion, who delivered the following decision on October 19, 1999.