R. v. Porter, (1989) 90 N.S.R.(2d) 404 (CoCt)

• Case Date: March 17, 1989
• Jurisdiction: Nova Scotia
• Citations: (1989), 90 N.S.R.(2d) 404 (CoCt)

R. v. Porter (1989), 90 N.S.R.(2d) 404 (CoCt);

    230 A.P.R. 404

MLB headnote and full text

R. (appellant) v. Robert Porter (respondent)

(C.Y. 4353)

Indexed As: R. v. Porter

Nova Scotia County Court

District Number Three

Haliburton, J.C.C.

March 17, 1989.

Summary:

The Crown appealed the accused's acquittal of fishing during close time. The Atlantic Close Time Variation Order, 1986 - 117, purported to alter close time in 1986. The trial judge held that the order was not valid because it was not signed by a person authorized by regulation to make the variation.

The Nova Scotia County Court dismissed the appeal.

Administrative Law - Topic 7565

Delegated powers - Subdelegation of powers - Prohibition against delegation by delegate - Delegatus non potest delegare - Section 4 of the Atlantic Fishery Regulations delegated to the Regional Director-General authority to vary by order close time for fishing - The Nova Scotia County Court held that the authority to vary by order was a legislative function and could not be subdelegated - The delegation was not to a broad group making it a clerical or administrative function, but to the official who occupied the office of Regional Director-General from time to time - See paragraphs 18 to 26.

Administrative Law - Topic 7565

Delegated powers - Subdelegation of powers - Prohibition against delegation by delegate - Delegatus non potest delegare - [See Statutes - Topic 5312 below].

Evidence - Topic 2515

Presumptions - Regularity - Presumptions of capacity of public official - Section 4 of the Atlantic Fishery Regulations delegated to the Regional Director-General authority to vary close time for fishing - An order varying close time was signed by another individual "for" the Regional Director-General - The Nova Scotia County Court held that the presumption of regularity was inapplicable - See paragraphs 27 to 28.

Fish and Game - Topic 2176

Fishing offences - Fishing in closed season - A charge of fishing during close time was dismissed because an order purporting to vary close time was invalid - The Nova Scotia County Court held that the authority to vary close time was delegated only to the Regional Director-General under the Atlantic Fishery Regulations, s. 4 - Accordingly, a variation order signed by another individual "for" the Regional Director-General was an unauthorized subdelegation of the power to vary - See paragraphs 12 to 26.

Statutes - Topic 5312

Operation and effect - Delegated legislation - Subdelegation - General - Section 4 of the Atlantic Fishery Regulations delegated to the Regional Director-General authority to vary close time for fishing - An order varying close time was signed by another individual "for" the Regional Director-General - The Nova Scotia County Court held that the variation order was invalid - The regulation clearly delegated the legislative function to vary only to the Regional Director-General and power to subdelegate was not conferred - See paragraphs 12 to 26.

Cases Noticed:

R. v. Harrison, [1977] 1 S.C.R. 238, 8 N.R. 47, refd to. [para. 19].

R. v. Sunila and Soleyman (1987), 78 N.S.R.(2d) 24; 193 A.P.R. 24, refd to. [para. 19].

Lewisham v. Roberts, [1949] 2 K.B. 608, refd to. [para. 19].

Gulf Trollers Association v. Minister of Fisheries and Oceans, [1984] 6 W. W.R. 220 (F.C.C.), refd to. [para. 21].

Zinkovic v. John Botelho Construction Co. Ltd. (1980), 6 Man.R.(2d) 123, refd to. [para. 23].

Canadian Bronze Co. v. D.M.N.R. (1985), 57 N.R. 338 (F.C.A.), refd to. [para. 26].

Pender v. War Eagle; Ex parte Jones, (1899), 6 B.C.R. 427 (C.A.), refd to. [para. 27].

Statutes Noticed:

Atlantic Fishery Regulations, 1985, generally [para. 26]; sect. 4 [paras. 2, 4, 6, 14]; sect. 5(b) [para. 8]; sect. 21(2), sect. 33(3) [paras. 20, 22]; sect. 41 [paras. 1, 2].

Close Time Variation Order, 1986 - 117 [paras. 1, 5, 6, 10, 15].

Criminal Code, R.S.C. 1970, c. C-34, sect. 605 [para. 19].

Fisheries Act, R.S.C. 1970, c. F-14, sect. 34 [paras. 4, 6].

Fisheries Act, Atlantic Fishery Regulations - see Atlantic Fishery Regulations.

Fisheries Act, Pacific Commercial Salmon Fishing Regulations - see Pacific Commercial Salmon Fishing Regulations.

Interpretation Act, R.S.C. 1970, c. I-23, sect. 23(3), sect. 23(4) [para. 25].

Pacific Commercial Salmon Fishing Regulations, sect. 5(1) [para. 21].

Payment of Wages Act, C.C.S.M., c. P-15, sect. 22 [para. 23].

Counsel:

Andrew S. Nickerson, for the appellant;

Gregory M. Warner, Q.C., for the respondent.

This appeal was heard at Yarmouth, Nova Scotia, before Haliburton, J.C.C., of the Nova Scotia County Court of District Number Three, who delivered the following decision on March 17, 1989.