R. v. Ulybel Enterprises Ltd., 2001 SCC 56

• Judge: Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.
• Court: Supreme Court (Canada)
• Case Date: January 16, 2001
• Jurisdiction: Canada (Federal)
• Citations: 2001 SCC 56;(2001), 206 Nfld. & P.E.I.R. 304 (SCC);157 CCC (3d) 353;618 APR 304;[2001] 2 SCR 867;203 DLR (4th) 513;[2001] SCJ No 55 (QL);206 Nfld & PEIR 304;45 CR (5th) 1;51 WCB (2d) 180;JE 2001-1823;275 NR 201

R. v. Ulybel Ent. Ltd. (2001), 206 Nfld. & P.E.I.R. 304 (SCC);

    618 A.P.R. 304

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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MLB headnote and full text

Temp. Cite: [2001] Nfld. & P.E.I.R. TBEd. OC.008

Her Majesty The Queen (appellant) v. Ulybel Enterprises Limited (respondent)

(27543; 2001 SCC 56)

Indexed As: R. v. Ulybel Enterprises Ltd.

Supreme Court of Canada

Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.

September 27, 2001.

Summary:

A vessel and its cargo of fish were seized by officials of the federal Department of Fisheries and Oceans pursuant to the Fish­eries Act and escorted to St. John's, New­foundland. The accused corporation, which owned the vessel, was charged two counts of permitting the use of the vessel for fishing without a licence and two counts of permit­ting the use of the vessel for fishing without a registration card in the NAFO Convention area contrary to the Atlantic Fishery Regula­tions. Before trial, in the course of proceed­ings commenced by third parties in the Federal Court of Canada, in which the Crown intervened, the vessel was ordered to be sold.

The Newfoundland Supreme Court, Trial Division, in a decision reported 150 Nfld. & P.E.I.R. 308; 470 A.P.R. 308 convicted the accused on all counts. The trial judge levied fines totalling $120,000 and ordered for­feiture of the cargo of fish ($58,989) and forfeiture of $50,000 of the proceeds from the sale of the vessel pursuant to s. 72(1) of the Fisheries Act. The accused appealed the conviction and sentence. The Crown cross-appealed the sentence.

The Newfoundland Court of Appeal, in a decision reported 150 Nfld. & P.E.I.R. 308; 470 A.P.R. 308, dis­missed the conviction appeal. The court affirmed the fines but set aside the forfeiture orders. The court held that the Fisheries Act did not provide the Newfoundland Supreme Court, Trial Divi­sion, with the jurisdiction or authority to order the forfeiture of any of the proceeds of sale of a vessel. The court held that physical detention of a thing seized under the Fish­eries Act was a necessary precondition to an order of forfeiture. The Crown appealed on the forfeiture issue.

The Supreme Court of Canada allowed the appeal, set aside the order of the court of appeal and restored the forfeiture orders made by the sentencing judge. The court held that the Court of Appeal interpreted s. 72(1) too narrowly. The court held that s. 72(1) authorized the sentencing court to make an order of forfeiture against the proceeds of disposition of a vessel formerly seized under the Fisheries Act, but sold under the jurisdiction of the Federal Court of Canada. The sale of the vessel was contem­plated, but not effected, under the Fisheries Act. Furthermore, the Crown in this case did not institute proceedings in the Federal Court, and its application to intervene and motion for an order for sale were not an end run around limitations in the Fisheries Act.

Fish and Game - Topic 3

General principles - Legislation - Interpre­tation and application - [See second Fish and Game - Topic 2904 ].

Fish and Game - Topic 2904

Offences - Forfeitures - Limitations on power of forfeiture - A vessel and its cargo of fish were seized by officials of the federal Department of Fisheries and Oceans - The accused corporation, which owned the vessel, was charged with of­fences under the Atlantic Fishery Regula­tions - Before trial, in the course of pro­ceedings commenced by third parties in the Federal Court of Canada in which the Crown intervened, the vessel was ordered to be sold - The Newfoundland Supreme Court, Trial Division, convicted the accused and imposed a $120,000 fine, plus forfeiture of the cargo of fish ($58,989) and forfeiture of $50,000 of the proceeds from the sale of the vessel (Fisheries Act, s. 72(1)) - An issue arose regarding the jurisdiction of the sentencing judge to impose the forfeiture orders - The Supreme Court of Canada confirmed the forfeiture orders - The court held that s. 72(1) auth­or­ized the sentencing court to make an order of for­feiture against the proceeds of dispo­sition of a vessel formerly seized under the Fish­eries Act, but sold under the jurisdic­tion of the Federal Court of Canada - See para­graphs 1 to 54.

Fish and Game - Topic 2904

Offences - Forfeitures - Limitations on power of forfeiture - Section 72(1) of the Fisheries Act (Can.), provided that "where a person is convicted of an offence under this Act, the court may ... order that any thing seized under this Act by means of or in relation to which the offence was com­mitted, or any proceeds realized from its disposition, be forfeited to Her Majesty." - The Supreme Court of Canada interpreted this provision - The court considered the ordinary and grammatical sense of the words, looked to the legislative history, the intention of Parliament, the scheme of the Act and the legislative context - Further, the court stated that because of the interac­tion in this case, between the in personam jurisdiction of the Newfoundland Supreme Court under the Fisheries Act and the in rem jurisdiction of the Federal Court under the admiralty provisions of the Federal Court Act, in considering the "entire con­text" of s. 72(1) and the intent of Parlia­ment, it was important to apply the prin­ciples for harmonizing different statutes - See paragraphs 28 to 52.

Statutes - Topic 2617

Interpretation - Interpretation of words and phrases - Interpretation by context - (incl. modern rule) - Harmonization of statutes - [See second Fish and Game - Topic 2904 ].

Cases Noticed:

R. v. Savory (1992), 108 N.S.R.(2d) 245; 294 A.P.R. 245 (C.A.), refd to. [para. 24].

R. v. Corcoran (J.F.) (1997), 153 Nfld. & P.E.I.R. 318; 475 A.P.R. 318 (Nfld. T.D.), refd to. [para. 24].

R. v. Vautour (G.) (2000), 226 N.B.R.(2d) 226; 579 A.P.R. 226 (T.D.), refd to. [para. 24].

R. v. Chute (M.) (1997), 160 N.S.R.(2d) 378; 473 A.P.R. 378 (C.A.), refd to. [para. 24].

Rizzo and Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 29].

Gravel v. St-Léonard (City), [1978] 1 S.C.R. 660; 17 N.R. 486, refd to. [para. 33].

Amos v. Insurance Corp. of British Col­umbia, [1995] 3 S.C.R. 405; 186 N.R. 150; 63 B.C.A.C. 1; 104 W.A.C. 1, refd to. [para. 33].

New Brunswick (Minister of Municipal Affairs) v. Bathurst Paper Ltd., [1972] S.C.R. 471; 4 N.B.R.(2d) 96, refd to. [para. 34].

Statutes Noticed:

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

Criminal Code, R.S.C. 1985, c. C-46, sect. 489.1 [para. 37].

Fisheries Act, R.S.C. 1985, c. F-14, sect. 50, sect. 51, sect. 70(1), sect. 70(3), sect. 71(1), sect. 71(2), sect. 71.1(1), sect. 71.1(2), sect. 72, sect. 73.1, sect. 75(1), sect. 75(4) [para. 20].

Federal Court Rules, rule 1007, rule 1008(1), rule 1010(1) [para. 20].

Fisheries Act Regulations (Can.), Atlantic Fishery Regulations, sect. 13(1)(a), sect. 13(1)(b) [para. 6].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Stat­utes (2nd Ed. 1983), p. 87 [para. 28].

Driedger, Elmer A., Construction of Stat­utes (3rd Ed. 1994), pp. 288 [para. 30]; 450 [para. 34].

Counsel:

Graham Garton, Q.C., and Gordon Campbell, for the appellant;

John R. Sinnott, Q.C., for the respondent.

Solicitors of Record:

The Deputy Attorney General of Canada, Ottawa, Ontario, for the appellant;

Lewis, Sinnott, Shorthall & Hurley, St. John's, Newfoundland, for the respon­dent.

This appeal was heard on January 16, 2001, before Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada. The fol­lowing decision was delivered for the court, in both official languages, by Iacobucci, J., on September 27, 2001.