R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, 2001 SCC 56
Her Majesty The Queen Appellant
v.
Ulybel Enterprises Limited Respondent
Indexed as: R. v. Ulybel Enterprises Ltd.
Neutral citation: 2001 SCC 56.
File No.: 27543.
2001: January 16; 2001: September 27.
Present: Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for newfoundland
Courts – Jurisdiction – Superior courts -- Vessel sold under authority of Federal Court of Canada and proceeds held by court in exercise of its admiralty jurisdiction -- Whether provincial superior court can order forfeiture of proceeds of sale of vessel pursuant to s. 72(1) of Fisheries Act, R.S.C. 1985, c. F‑14.
Fisheries – Forfeiture of proceeds of sale of fishing vessel – Scope of power to order forfeiture of proceeds -- Whether continued detention of seized vessel pre-condition to order of forfeiture pursuant to s. 72(1) of Fisheries Act, R.S.C. 1985, c. F‑14.
The respondent is the registered owner of a Canadian vessel which was observed fishing in the NAFO Convention Area without the required licence or registration card, contrary to the Atlantic Fishery Regulations, 1985. The vessel and its cargo of fish were seized and the Crown took physical possession of the vessel. In 1994 and 1995, actions were commenced in the Federal Court of Canada claiming interests in the vessel and the court issued arrest orders against the vessel. The respondent was subsequently indicted on charges to be tried before the Newfoundland Supreme Court, Trial Division. Meanwhile, the Crown continued to possess the vessel and was incurring storage and maintenance costs. In 1996, it intervened in one of the Federal Court actions and successfully sought an order allowing the sale of the vessel. The proceeds of the sale were deposited with the Receiver General for the benefit of the Federal Court. In 1997, the respondent was convicted of the charges and the sentence included forfeiture of $50,000 of the proceeds of the sale of the vessel. The Newfoundland Court of Appeal upheld the conviction and held that the sentence was not excessive. The court held, however, that the Supreme Court, Trial Division had no jurisdiction or authority to order the forfeiture of the proceeds of sale and it overturned the order of forfeiture, holding that physical detention of a thing seized under the Fisheries Act is a necessary precondition to an order of forfeiture.
Held: The appeal should be allowed and the order of forfeiture made by the Newfoundland Supreme Court, Trial Division restored.
A provincial superior court can order forfeiture of the proceeds of sale of a vessel pursuant to s. 72(1) of the Fisheries Act even when the vessel has been sold under the authority of the Federal Court and the proceeds are held by that court in the exercise of its admiralty jurisdiction.
In light of the kinds of property subject to seizure under s. 51 of the Fisheries Act, the words in s. 72(1) read in their ordinary and grammatical sense clearly contemplate an order of forfeiture of the proceeds of disposition of a vessel seized under the Act. The legislative history also supports a broader interpretation of s. 72(1). A former version of s. 72(1) limited the scope of the power to order forfeiture of proceeds to the proceeds of a disposition of perishables. In 1991, the limiting language was removed in favour of a general reference to the proceeds of “any thing seized under this Act”. There is a presumption that the amendments were made for an intelligible purpose and, in this case, the effect of the 1991 amendment to s. 72(1) was to broaden the scope of the forfeiture provision to include the power to forfeit proceeds of the sale of a vessel. This effect is consistent with the intention of Parliament to increase the flexibility and severity of available penalties for Fisheries Act offences.
The fact that the Fisheries Act preserves the property of an accused person is not fatal to the broader interpretation of the power to order forfeiture. This reflects the presumption of innocence and the principle that the property of an accused should be preserved until culpability is determined. A person charged with an offence under the Fisheries Act, however, cannot rely on the presumption of innocence to prevent or delay a person with an in rem claim against his property from obtaining a remedy. Similarly, where culpability has been finally determined, the presumption of innocence is spent and nothing in the Act immunizes proceeds of sale realized pursuant to a civil authority from forfeiture. The scheme of the Act is strict enough to preserve the seized property of an accused and flexible enough to preserve the availability of the penalties necessary to achieve the object of the Act.
With respect to the legislative context, had Parliament intended the phrase “any proceeds realized from its disposition” to be limited to proceeds of perishables, it could have done so expressly, as it did in s. 70(3), as well as ss. 72(2) and 72(3). Further, a continued physical detention is not expressly stated as a precondition to an order of forfeiture on the face of s. 72(1) nor is it necessary to infer it as a precondition. The process set out in s. 71(2) by which a security deposit obtains the release of seized property is beneficial to the parties and creditors and should not be discouraged. This process would be less attractive if an order of forfeiture were subject to a pre-condition of continued physical detention. Section 72(1) should thus be interpreted as contemplating the making of an order of forfeiture against a vessel that has been released from seizure and returned on the deposit of security. It follows that s. 72(1) authorizes the forfeiture of things that have been formerly seized but released from seizure. Moreover, it is evident from s. 75 that the Act contemplates the possibility of parallel proceedings, in personam and in rem, involving the same vessel. This lends support to the view that s. 72(1) authorizes the forfeiture of proceeds realized pursuant to an authority other than the Fisheries Act. Lastly, the admiralty provisions of the Federal Court Act and Fisheries Act should be read as a consistent, harmonious scheme for the regulation of maritime matters. Fishing vessels and their use are at the heart of the activities governed by each regime. If the Court of Appeal’s narrow interpretation is adopted, an order for sale emanating from the Federal Court would terminate the jurisdiction of the Newfoundland Supreme Court to order forfeiture. Such a result does not comply with the principle of interpretation that presumes a harmony, coherence, and consistency between statutes dealing with the same subject matter.
Cases Cited
Referred to: R. v. Savory (1992), 108 N.S.R. (2d) 245; R. v. Corcoran (1997), 153 Nfld. & P.E.I.R. 318; R. v. Vautour (2000), 226 N.B.R. (2d) 226; R. v. Chute (1997), 160 N.S.R. (2d) 378; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Gravel v. City of St-Léonard, [1978] 1 S.C.R. 660; Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405; Bathurst Paper Ltd. v. Minister of Municipal Affairs of New Brunswick, [1972] S.C.R. 471.
Statutes and Regulations Cited
Atlantic Fishery Regulations, 1985, SOR/86-21, s. 13(1)(a), (b).
Criminal Code, R.S.C. 1985, c. C-46, s. 489.1.
Federal Court Act, R.S.C. 1985, c. F-7.
Federal Court Rules, C.R.C. 1978, c. 663, rr. 1007, 1008, 1010.
Fisheries Act, R.S.C. 1985, c. F-14 [am. 1991, c. 1], ss. 50, 51, 70, 71, 71.1, 72, 73.1, 75.
Authors Cited
Black’s Law Dictionary, 6th ed. St. Paul, Minn.: West Publishing Co., 1990, “forfeiture”.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Buttersworths, 1983.
Driedger on the Construction of Statutes, 3rd ed. by Ruth Sullivan. Toronto: Butterworths, 1994.
APPEAL from a judgment of the Newfoundland Court of Appeal (1999), 178 Nfld. & P.E.I.R. 321, 544 A.P.R. 321, [1999] N.J. No. 232 (QL), setting aside an order of forfeiture granted by the Supreme Court, Trial Division (1997), 150 Nfld. & P.E.I.R. 308, 470 A.P.R. 308, [1997] N.J. No. 114 (QL). Appeal allowed.
Graham Garton, Q.C., and Gordon S. Campbell, for the appellant.
John R. Sinnott, Q.C., for the respondent.
The judgment of the Court was delivered by
1 Iacobucci J. -- This appeal raises the question of whether a provincial superior court can order forfeiture of the proceeds of sale of a vessel pursuant to s. 72(1) of the Fisheries Act, R.S.C. 1985, c. F‑14, as amended by S.C. 1991, c. 1, even when the vessel has been sold under the authority of the Federal Court of Canada and the proceeds are held by that court in the exercise of its admiralty jurisdiction.
I. Background
A. The Vessel and its Seizure
2 The "Kristina Logos" (the “vessel”) is a factory freezer trawler built in 1976 and registered in Canada in 1981. On February 3, 1992, José Pratas purchased the vessel from Pêches Nordiques Inc., formerly Kosmos P/F Fishery Canada Ltd., by way of bill of sale. On the same day that he purchased the vessel, Mr. Pratas registered three documents with the Canadian Registry of Shipping: the bill of sale by which ownership of the vessel was transferred to him, a mortgage he had executed in favour of Pêches Nordiques Inc. (later transferred to Hillsdown International Ltd. and ultimately to Clearwater Atlantic Seafoods Inc.), and a declaration of ownership stating he was entitled to be registered as owner.
3 On October 16, 1992, Mr. Pratas sold the vessel to Ulybel Enterprises Limited (the “respondent”). The respondent was incorporated in Nova Scotia on November 22, 1989, and Mr. Pratas was its sole director and shareholder. On December 9, 1992, the bill of sale by which ownership of the vessel was transferred to the respondent, and a declaration of ownership stating that the respondent was qualified to own a Canadian ship were filed with the Canadian Registry of Shipping. At the same time, the Registry was informed that Mr. Pratas was appointed manager. Therefore, at all material times, the vessel was a Canadian vessel, of which the respondent was the registered owner, subject to a registered mortgage.
4 In 1993, the respondent entered into a Bareboat Charter with a Portuguese company named Marqueirapesca Lda. The shareholders of that company are Mr. Pratas owning 51 percent of the outstanding shares, and Carlos and Mario Neves (the “Neves Brothers”) owning 49 percent. It was not contested that in 1993 and 1994 Marqueirapesca Lda. fished the vessel off the coast of Newfoundland and in the NAFO Convention Area, divisions 3M, 3N and 3O.
5 NAFO is an international body implemented to optimize the utilization, management and conservation of the Northwest Atlantic fisheries stocks in a quadrant of ocean and coastal waters with a Northern border extending from the Hudson Strait below Baffin Island to Greenland and a Western border extending from Baffin Island to Northern North Carolina. Divisions 3M, 3N and 3O fall south and west of Newfoundland. Significant parts of the Grand Banks are within two of these divisions.
6 On April 2, 1994, the vessel was observed fishing in the NAFO Convention Area without the required licence or registration card and in contravention of ss. 13(1)(a) and 13(1)(b) of the Atlantic Fishery Regulations, 1985, SOR/86-21 (the “Regulations”). The vessel and its cargo of fish were seized by officials of the Department of Fisheries and Oceans pursuant to s. 51 of the Fisheries Act and escorted to St. John’s, Newfoundland. The Crown in Right of Canada thereby took physical possession of the vessel.
B. The Litigation: One Vessel but Two Courts
7 On April 4 and 5, 1994, two informations were sworn charging the respondent with 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 contrary to ss. 13(1)(a) and 13(1)(b) of the Regulations.
8 On April 5, 1994, three days after the vessel was seized under the Fisheries Act, an action was commenced in the Federal Court of Canada by the mortgagee of the vessel, Clearwater Atlantic Seafoods Inc., seeking $125,000, alleged to be the balance of purchase monies owing from the sales of the vessel to Mr. Pratas and the respondent. On the same day, the Federal Court of Canada issued an arrest order against the vessel being held by the Crown. On May 23, 1995, a second action was brought in the Federal Court of Canada, this time by the Neves Brothers claiming an ownership interest in the vessel valued at $512,750. A second arrest order was issued on that same day.
9 On September 28, 1995, the respondent was indicted on the same charges as those contained in the informations sworn on April 4 and 5, 1994. The trial was scheduled to commence in the Newfoundland Supreme Court, Trial Division on November 28, 1996.
10 Meanwhile, the Crown continued in possession of the vessel and began to incur costs for its storage and maintenance. On November 12, 1996, approximately 19 months after the vessel was first seized and arrested, the Crown applied to intervene in the action commenced by the Neves Brothers in the Federal Court of Canada as a person claiming an interest in the property pursuant to Rule 1010 of the Federal Court Rules, C.R.C. 1978, c. 663. The application to intervene was supported by the Crown’s claim for costs and expenses for the care and preservation of the vessel amounting to over $500,000. That amount represented the costs incurred by the Crown in seizing the vessel under the Fisheries Act, and the on-going cost of maintaining the ship (approximately $60,000 per year). At the same time, the Crown brought a motion for the lifting of the arrest and an order for the sale of the vessel pursuant to Federal Court Rule 1007(3). Rule 1007(3) provides that the court may, before judgment, order property under arrest to be sold if it is deteriorating in value.
11 The respondent brought a motion in the Newfoundland Supreme Court, Trial Division for a declaration that the Crown was not entitled to proceed in another court to seek the sale of the vessel and an order for its release from seizure. That motion was denied on December 6, 1996.
12 On December 9, 1996, a prothonotary of the Federal Court found that the Crown had the necessary interest to intervene in the action since it had incurred expenses after the arrest of the vessel, characterized as expenses in custodia legis. The prothonotary found that this was an appropriate case for the Federal Court to grant an order of sale as costs and expenses would continue to mount until the ship was sold. Further, the ship’s classification certificate would soon expire, which would significantly reduce the ship’s value. Therefore, the prothonotary found that the case met the test found in Rule 1007(3) of the Federal Court Rules. Accordingly, on December 18, 1996, the Federal Court ordered the sale of the vessel ([1996] F.C.J. No. 1683 (QL); (1996), 124 F.T.R. 167).
13 The respondent applied for a stay of the order for sale pending its appeal, but the order for sale was confirmed by the Federal Court, Trial Division ([1997] F.C.J. No. 200 (QL)). The vessel was sold on May 15, 1997 for $605,000 and, pursuant to the order of sale, the proceeds were deposited with the Receiver General in an interest bearing account for the benefit of the Federal Court. The respondent then appealed the order for sale to the Federal Court of Appeal, but since the vessel had already been sold that appeal was dismissed as being moot ((1998), 225 N.R. 32).
14 On May 21, 1997, the respondent was convicted of the charges brought against it in the Supreme Court of Newfoundland, Trial Division ((1997), 150 Nfld. & P.E.I.R. 308). On July 2, 1997, the Newfoundland Supreme Court, Trial Division imposed a sentence on the respondent that included fines totalling $120,000, the forfeiture of the proceeds of sale of the cargo of fish ($58,989.34), and the forfeiture of $50,000 of the proceeds of the sale of the vessel.
15 The respondent appealed its conviction and sentence to the Newfoundland Court of Appeal. Before that appeal could be heard, on August 11, 1999, a prothonotary of the Federal Court of Canada determined the ranking of the claims of the parties in the actions before it, including the claims of the mortgagee, the Neves brothers, and the Crown for fines, forfeiture and costs. The ranking of claims was conditional on the outcome of the respondent’s appeal of sentence ((1999), 173 F.T.R. 31).
16 Another appeal was brought by the defendants to the action in the Federal Court, including Ulybel and Pratas, against the Prothonotary’s ranking of claims. That appeal was heard before McKay J. of the Federal Court, Trial Division and judgment has been reserved.
17 On August 17, 1999, the Newfoundland Court of Appeal upheld the respondent’s conviction and found that the sentence imposed was not excessive ((1999), 178 Nfld. & P.E.I.R. 321). However, the Court of Appeal 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 of Appeal held that physical detention of a thing seized under the Fisheries Act is a necessary precondition to an order of forfeiture. In this case, the Court of Appeal held that the vessel must have been released from seizure when sold under the authority of the Federal Court, thereby precluding a subsequent order of forfeiture under the Fisheries Act. Accordingly, the Court of Appeal overturned the order of forfeiture made by the court below.
18 The respondent’s application to this Court for leave to appeal its conviction and sentence was denied. The Crown’s application to this Court for leave to appeal the decision of the Court of Appeal was granted.
19 It is important to keep in mind that none of the decisions of the Federal Court of Canada is on appeal before this Court. In fact, nothing in these reasons should be interpreted as commenting on those proceedings. The only decision on appeal is the Newfoundland Court of Appeal’s reversal of the sentencing court’s order of forfeiture against the proceeds of sale of the vessel.
II. Relevant Legislation
20 Fisheries Act, R.S.C. 1985, c. F‑14, as amended by S.C. 1991, c. 1
50. Any fishery officer, fishery guardian or peace officer may arrest without warrant a person who that fishery officer, guardian or peace officer believes, on reasonable grounds, has committed an offence against this Act or any of the regulations, or whom he finds committing or preparing to commit an offence against this Act or any of the regulations.
70. (1) A fishery officer or fishery guardian who seizes any fish or other thing under this Act may retain custody of it or deliver it into the custody of any person the officer or guardian considers appropriate.
. . .
(3) A fishery officer or fishery guardian who has custody of any fish or other perishable thing seized under this Act may dispose of it in any manner the officer or guardian considers appropriate and any proceeds realized from its disposition shall be paid to the Receiver General.
71. (1) Subject to this section, any fish or other thing seized under this Act, or any proceeds realized from its disposition, may be detained until the fish or thing or proceeds are forfeited or proceedings relating to the fish or thing are finally concluded.
(2) Subject to subsection 72(4), a court may order any fish or other thing seized under this Act to be returned to the person from whom it was seized if security is given to Her Majesty in a form and amount that is satisfactory to the Minister.
. . .
71.1 (1) Where a person is convicted of an offence under this Act, the court may, in addition to any punishment imposed, order the person to pay the Minister an amount of money as compensation for any costs incurred in the seizure, storage or disposition of any fish or other thing seized under this Act by means of or in relation to which the offence was committed.
(2) Where a court orders a person to pay an amount of money as compensation under subsection (1), the amount and any interest payable on that amount constitute a debt due to Her Majesty and may be recovered as such in any court of competent jurisdiction.
72. (1) Where a person is convicted of an offence under this Act, the court may, in addition to any punishment imposed, 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.
(2) Where a person is convicted of an offence under this Act that relates to fish seized pursuant to paragraph 51(a), the court shall, in addition to any punishment imposed, order that the fish, or any proceeds realized from its disposition, be forfeited to Her Majesty.
(3) Where a person is charged with an offence under this Act that relates to fish seized pursuant to paragraph 51(a) and the person is acquitted but it is proved that the fish was caught in contravention of this Act or the regulations, the court may order that the fish, or any proceeds realized from its disposition, be forfeited to Her Majesty.
. . .
73.1 (1) Subject to subsection (2), any fish or other thing seized under this Act, or any proceeds realized from its disposition, that are not forfeited to Her Majesty under section 72 shall, on the final conclusion of the proceedings relating to the fish or thing, be delivered to the person from whom the fish or thing was seized.
(2) Subject to subsection 72(4), where a person is convicted of an offence relating to any fish or other thing seized under this Act and the court imposes a fine but does not order forfeiture,
(a) the fish or thing may be detained until the fine is paid;
(b) it may be sold under execution in satisfaction of the fine; or
(c) any proceeds realized from its disposition may be applied in payment of the fine.
. . .
75. (1) Where any thing other than fish is forfeited to Her Majesty under subsection 72(1) or (4), any person who claims an interest in the thing as owner, mortgagee, lienholder or holder of any like interest, other than a person convicted of the offence that resulted in the forfeiture or a person from whom the thing was seized, may, within thirty days after the forfeiture, apply in writing to a judge for an order pursuant to subsection (4).
. . .
(4) Where, on the hearing of an application made pursuant to subsection (1), it is made to appear to the satisfaction of the judge,
(a) that the applicant is innocent of any complicity in the offence or alleged offence that resulted in the forfeiture and of any collusion in relation to that offence with the person who was convicted of, or who may have committed, the offence, and
(b) that the applicant exercised all reasonable care in respect of the person permitted to obtain the possession of the thing in respect of which the application is made to satisfy himself that the thing was not likely to be used contrary to this Act or the regulations, or, in the case of a mortgagee or lienholder, that he exercised such care with respect to the mortgagor or the liengiver,
the applicant is entitled to an order declaring that his interest is not affected by the forfeiture and declaring the nature and extent of his interest.
Federal Court Rules, C.R.C. 1978, c. 663
Rule 1007. (1) The Court may, either before or after final judgment, order any property under the arrest of the Court to be appraised, or to be sold with or without appraisement, and either by public auction or by private contract, and may direct what notice by advertisement or otherwise shall be given or may dispense with the same.
(2) Without limiting paragraph (1), the Court may, either before or after final judgment, order
(a) that, where any property is under the arrest of the Court, it be advertised for sale in accordance with directions contained in the order, which may include any or all of the following:
. . .
(vi) any other direction that seems appropriate to the circumstances of the particular case; or
(b) that an agent be employed for the sale of any such property, with authority to sell subject to such conditions as are stipulated in the order or subject to subsequent approval by the Court, on such terms as to compensation of the agent for his services as may be stipulated in the order.
(3) If the property is deteriorating in value, the Court may order it to be sold forthwith.
. . .
(7) As soon as possible after the execution of a commission of sale, the marshal shall pay into court the gross proceeds of the sale, and shall with the commission file his accounts and vouchers in support thereof.
. . .
Rule 1008. (1) When an application is made for payment out of any money paid into court under Rule 1007(7), the Court has power to determine the rights of all claimants thereto and may make such order and give such directions as will enable the Court to adjudicate upon the rights of all claimants to such money and to order payment out to any person of any such money or portion thereof in accordance with its findings.
. . .
Rule 1010. (1) Where property against which an action in rem has been brought is under arrest or money representing the proceeds of sale of property against which such an action has been brought is in court, a person who claims an interest in the property or money but who is not a defendant in the action may, with leave of the Court, intervene in the action.
III. Issue and Principal Arguments of the Parties
21 The basic issue on appeal is whether the Newfoundland Court of Appeal erred in reversing the sentencing judge’s order for forfeiture of proceeds of the vessel. The focus of argument is on the proper interpretation of the scope of the power to order the forfeiture of proceeds under s. 72(1) of the Fisheries Act: can it cover proceeds from the sale of a ship or is it limited to those proceeds realized from a sale of perishables pursuant to s. 70(3) of the Act?
22 The appellant submits that the Court of Appeal erred by interpreting the power to make an order of forfeiture under s. 72(1) of the Fisheries Act too narrowly. She argues that the plain language of s. 72(1) supports a broader interpretation, one that permits the court to make an order of forfeiture against the proceeds of sale of a vessel, even where the sale of the vessel was made under the authority of another court. The appellant says that such an interpretation is necessary to harmonize the Fisheries Act, with the Federal Court Act, R.S.C. 1985, c. F-7, and the Federal Court Rules.
23 The respondent adopts the position taken by the Newfoundland Court of Appeal in this case. The respondent argues that the only proceeds that are subject to forfeiture under the Fisheries Act are the proceeds of perishables sold pursuant to s. 70(3). The respondent says that the Fisheries Act should be interpreted as requiring the continued physical detention of a thing seized as a necessary precondition to an order of forfeiture of that thing. Thus, in this case, the sale of the vessel under the authority of the Federal Court precluded the sentencing court from imposing a valid order of forfeiture against the proceeds of the vessel as part of the sentence in this case. The respondent says that such an interpretation is consistent with the scheme of the Act and the presumption of innocence.
IV. Analysis
A. Background: The Fisheries Act and the Power of Forfeiture
24 It is convenient at this stage to provide some background to the Fisheries Act and the specific provision at issue in this appeal. The principal object of the Fisheries Act has been found by a number of appellate courts to be that as summarized by the Nova Scotia Court of Appeal in R. v. Savory (1992), 108 N.S.R. (2d) 245, at para. 14:
The Act and the Regulations have been passed for the purpose of regulating the fishery; regulatory legislation should be given a liberal interpretation. A major objective of the Act and the Regulations is to properly manage and control the commercial fishery.
See also R. v. Corcoran (1997), 153 Nfld. & P.E.I.R. 318, at paras. 22-25; R. v. Vautour (2000), 226 N.B.R. (2d) 226 (Q.B.), at paras. 10-11 and 13; R. v. Chute (1997), 160 N.S.R. (2d) 378 (C.A.).
25 As noted by the sentencing judge in this case, serious problems exist in the Atlantic fishing industry:
It is common knowledge that the fish stocks on the Grand Banks as well as elsewhere in the Atlantic fishery waters of Canada have been seriously depleted.
Canada has passed certain laws to enable this country to carry out proper conservation measures. NAFO was organized for the conservation of fish stocks by setting various quotas and regulations. The regulations are aimed at the regulation of the fishing industry with a view to the preservation of fishery resources which are crucial to the operation and continuation of an important Canadian industry.
In order to garner support for Canadian concerns over excessive fishing on the nose and tail of the Grand Banks, Canada has to demonstrate its ability to control its own vessels.
26 One of the ways that Parliament has seen fit to support the proper management and control of the commercial fishery is to provide the courts with the power to impose significant penalties upon conviction of offences under the Fisheries Act. The most recent amendments to the Fisheries Act, enacted in 1991, were primarily concerned with increasing the severity of penalties to deter the abuse of the fishery resource and make it uneconomical for rogue fishermen to flout the Fisheries Act and the Regulations. For instance, Parliament increased the fines for those who violate the Regulations in the Convention Area to a maximum of $500,000.
27 Parliament also amended the power to order forfeiture of property seized under the Fisheries Act and the proceeds of sale of such property. The power of forfeiture has long been one of the penalties available to courts in sentencing persons convicted of offences under the Fisheries Act. That power is contained in s. 72, the provision at issue in this appeal. Prior to the 1991 amendments, the authority to order forfeiture of proceeds was limited to proceeds arising from a sale of perishables under s. 71(3) (now s. 70(3)). Section 72 provided as follows:
72. (1) Where a person is convicted of an offence under this Act or the regulations, the convicting court or judge may, in addition to any punishment imposed, order that any thing seized pursuant to subsection 71(1), or the whole or any part of the proceeds of a sale referred to in subsection 71(3), be forfeited and, on such an order being made, the thing so ordered to be forfeited is forfeited to Her Majesty in right of Canada.
Section 71(3), for its part, provided:
71. . . .
(3) Where, in the opinion of the person having custody of any thing seized pursuant to subsection (1), the thing will rot, spoil or otherwise perish, that person may sell the thing in such manner and for such price as that person may determine.
However, since the 1991 amendments, and at all times material to this appeal, s. 72 has provided as follows:
72. (1) Where a person is convicted of an offence under this Act, the court may, in addition to any punishment imposed, 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.
B. Principles of Statutory Interpretation
28 In numerous cases, this Court has endorsed the approach to the construction of statutes set out in the following passage from Driedger’s Construction of Statutes (2nd ed. 1983), at p. 87:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
29 This famous passage from Driedger “best encapsulates” our Court’s preferred approach to statutory interpretation: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at paras. 21 and 23. Driedger’s passage has been cited with approval by our Court on frequent occasions in many different interpretive settings which need not be mentioned here.
30 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 admiralty jurisdiction of the Federal Court under the Federal Court Act, in considering the “entire context” of s. 72(1) and the intent of Parliament, it is important to keep in mind the principles for harmonizing different statutes. Professor Ruth Sullivan expressed these principles as follows, in Driedger on the Construction of Statutes (3rd ed. 1994), at p. 288:
The meaning of words in legislation depends not only on their immediate context but also on a larger context which includes the Act as a whole and the statute book as a whole. The presumptions of coherence and consistency apply not only to Acts dealing with the same subject but also, albeit with lesser force, to the entire body of statute law produced by a legislature. . . . Therefore, other things being equal, interpretations that minimize the possibility of conflict or incoherence among different enactments are preferred.
C. Application of Principles of Statutory Interpretation: Section 72 and the Scope of the Power to Order Forfeiture
1. Grammatical and Ordinary Meaning
31 In interpreting the scope of the power to order forfeiture of proceeds under the Fisheries Act, it is natural to begin by considering the grammatical and ordinary meaning the words of s. 72(1). As already noted, s. 72(1) provides:
72. (1) Where a person is convicted of an offence under this Act, the court may, in addition to any punishment imposed, 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. [Emphasis added.]
32 The possessive pronoun in the phrase “any proceeds realized from its disposition” clearly refers to the antecedent “any thing seized under the Act” in the preceding clause. Section 51 is the exclusive source of the power to seize property under the Fisheries Act. It provides for the seizure of “any fishing vessel, vehicle, fish or other thing that [a fishery] officer or guardian believes on reasonable grounds was obtained by or used in the commission of an offence under this Act...”. Therefore, in light of the kinds of property subject to seizure under s. 51, reading the words in s. 72(1) in their ordinary and grammatical sense, the provision clearly contemplates the making of an order of forfeiture of the proceeds of disposition of a vessel seized under the Act. Furthermore, it is notable that the proceeds subject to forfeiture are not limited to those proceeds realized through dispositions made under the Fisheries Act.
2. Legislative History and the Intention of Parliament
33 To understand the scope of s. 72(1), it is useful to consider its legislative evolution. Prior enactments may throw some light on the intention of Parliament in repealing, amending, replacing or adding to a statute: Gravel v. City of St-Léonard, [1978] 1 S.C.R. 660, at p. 667, per Pigeon J., cited approvingly by Major J. in Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405, at para. 13. As noted above, a former version of the forfeiture provision did limit the scope of the power to order forfeiture of proceeds to the proceeds of a disposition of perishables made under s. 71(3) of the Act (now s. 70(3)). However, in 1991, s. 72(1) was amended and the language limiting the scope of the power to order forfeiture of proceeds was removed. Indeed, this was the only meaningful change made to s. 72(1). A review of the Minutes of Proceedings of the Legislative Committee and the Parliamentary debates in Hansard offers little insight into the intention of Parliament in making this change in the forfeiture provision. In fact, no references were made to this specific provision in either the Committee hearings or the Parliamentary debate that preceded its amendment. However, it is clear that as a whole, the 1991 amendments to the Fisheries Act were intended to modernize the legislation, and to increase the flexibility and severity of penalties for Fisheries Act offences.
34 It is possible that the removal of the reference to the proceeds of a disposition of perishables, in favour of a general reference to the proceeds of “any thing seized under this Act”, was intended by the drafters merely to streamline the language of the section, and not to broaden the scope of forfeiture as it relates to proceeds. However, there is a presumption that amendments to the wording of a legislative provision are made for some intelligible purpose, such as to clarify the meaning, to correct a mistake, or to change the law: see Sullivan, supra, at p. 450. Laskin J. (as he then was) applied this presumption in Bathurst Paper Ltd. v. Minister of Municipal Affairs of New Brunswick, [1972] S.C.R. 471, at pp. 477-78. Writing for the Court, he held that “[l]egislative changes may reasonably be viewed as purposive, unless there is internal or admissible external evidence to show that only language polishing was intended”. In this case, through its wholesale removal of specific limiting language, the effect of the 1991 amendment to s. 72(1) is to broaden the scope of the forfeiture provision to include the power to forfeit proceeds of the sale of a vessel. This effect is consistent with the intention of Parliament, as recorded in Hansard, to increase the flexibility and severity of available penalties for Fisheries Act offences.
35 Before this Court, counsel did not initially refer to the legislative history of the forfeiture provision. It appears that the Court of Appeal did not benefit from argument on the effect of the 1991 amendments on the proper interpretation of the scope of the power to order forfeiture. Nevertheless, in combination, the grammatical and ordinary meaning of the words in s. 72(1) and the intention of Parliament as indicated by the legislative history of the provision do support a broader interpretation of the scope of the forfeiture power than was given by the Court of Appeal.
3. The Scheme of the Act
36 As noted above, the Fisheries Act creates offences and imposes penalties in order to further its object of the proper management and control of the commercial fishing industry. In this appeal, we are particularly concerned with the scheme of that part of the Fisheries Act falling under the heading “Disposition of Seized Things”. The provisions in that part of the Fisheries Act provide authority to deal with the property of a person accused of an offence under the Fisheries Act. Fisheries officers have the authority to seize property that they have reasonable grounds to believe was involved in the commission of an offence under the Fisheries Act (s. 51). Seized property can be detained until forfeiture or the close of proceedings (s. 71(1)), or returned to the owner upon the posting of security (s. 71(2)). Persons convicted of an offence may be responsible to compensate the Crown for costs incurred in the seizure, storage, or disposition of seized property (s. 71.1). Except in respect of perishables (s. 70(3)), there is no authority to dispose of or forfeit property before conviction and the close of proceedings under the Fisheries Act. Upon conviction, property can be ordered forfeited to Her Majesty (s. 72) or applied to the payment of fines (s. 73.1(2)). An innocent party that claims an interest in forfeited property may apply for an order declaring that his or her interest is not affected by the forfeiture (s. 75(1)).
37 It makes sense that the Fisheries Act would deal exhaustively with property seized under the Fisheries Act given the special nature of the kinds of property at issue: fish, fishing vessels, and equipment. The respondent argues that s. 489.1 of the Criminal Code, R.S.C. 1985, c. C-46, also applies to the seized property of a person accused of an offence under the Fisheries Act. However, s. 489.1 begins with the words, “Subject to this or any other Act of Parliament...”. Therefore, because the federal Fisheries Act also deals with the property of a person accused of an offence under that Act, in my view, s. 489.1 of the Criminal Code has no application in this case.
38 In general, there is no authority under the Act to dispose of seized property before the close of proceedings. Thus, the scheme of the Fisheries Act properly reflects the presumption of innocence and the related principle that the property of an accused should be preserved until culpability is finally determined. The rationale for excepting seized perishables from the application of these principles is obvious: the quality and value of perishables will deteriorate in storage, hence it is in the interest of an accused that the Fisheries Act allow for the timely disposition of seized perishables (see s. 70(3)). However, that the Fisheries Act otherwise preserves the property of an accused person is not fatal to the broader interpretation of the power to order forfeiture advanced by the appellant. The property of an accused person is protected under the Fisheries Act vis-à-vis the quasi-criminal process under that Act, but there is nothing in the scheme of the Fisheries Act that would extend that protection vis-à-vis another civil authority. In other words, a person charged with an offence under the Fisheries Act cannot rely on the presumption of innocence to prevent or delay a person with an in rem claim against his property from obtaining a remedy. Similarly, where the culpability of a person charged with an offence under the Fisheries Act has been finally determined, the presumption of innocence is spent and there is nothing expressed in the Fisheries Act that would immunize proceeds of sale realized pursuant to a civil authority from forfeiture. In this way, the scheme of the Fisheries Act is, at once, strict enough to preserve the seized property of an accused subject to prosecution under the Fisheries Act, and flexible enough to preserve the availability of the penalties necessary to achieve the object of the Fisheries Act.
4. The Legislative Context
(a) Treatment of Proceeds under the Fisheries Act
39 The remaining factor to consider is the legislative context in which s. 72(1) exists. In interpreting the s. 72(1) power to order forfeiture narrowly, the Court of Appeal relied in part on the treatment of proceeds in the preceding, consecutive ss. 70(3) and 71(1). Taken together, those subsections read as follows:
70. . . .
(3) A fishery officer or fishery guardian who has custody of any fish or other perishable thing seized under this Act may dispose of it in any manner the officer or guardian considers appropriate and any proceeds realized from its disposition shall be paid to the Receiver General.
71. (1) Subject to this section, any fish or other thing seized under this Act, or any proceeds realized from its disposition, may be detained until the fish or thing or proceeds are forfeited or proceedings relating to the fish or thing are finally concluded.
40 It has been argued that because the phrase “any proceeds realized from its disposition” first appears in s. 70(3), and in that context is limited to proceeds of perishables, the phrase should continue to be read as being so limited when it appears in subsequent sections of the Fisheries Act. Furthermore, as an illustration of the above proposition, it is argued that s. 71(1) makes better sense if “any proceeds realized from its disposition”, as it appears in that subsection, refers only to s. 70(3) proceeds. It would be unusual that s. 71(1) of the Fisheries Act would purport to authorize the detention of the proceeds of disposition of a vessel made pursuant to an authority other than the Fisheries Act. The usual course would be for the authority under which the order for sale was made to detain any proceeds arising from that order. For example, in this case, the proceeds of the sale of the Kristina Logos are currently detained by the Receiver General for the benefit of the Federal Court, the source of the order for sale. This reasoning, it is argued, justifies applying the limited interpretation of “any proceeds” found in s. 70(3) to all subsequent subsections, including s. 72(1).
41 However, although a limited interpretation of “any proceeds” may arguably make better sense of s. 71(1), a purely grammatical interpretation of “any proceeds” is not beyond the rationale of that provision, nor does it render it absurd. As noted above in respect of s. 72(1), read according to its ordinary and grammatical meaning, the phrase “any proceeds realized from its disposition” in s. 71 includes proceeds of vessels seized under the Fisheries Act. Thus, s. 71 merely makes a grant of authority to detain proceeds that is partly superfluous in that only in unusual circumstances could the s. 71 power to detain proceeds be practically exercised in respect of proceeds realized pursuant to an authority other than the Fisheries Act. Such circumstances could arise if the Federal Court were to make an order pursuant to Federal Court Rule 1007 that proceeds of sale be paid into court and held for the benefit of orders made by other courts. In addition, although there is no authority to dispose of seized property until after the close of proceedings, s. 71(1) of the Fisheries Act does provide for the detention of the proceeds of “any . . . thing seized under this Act”. Furthermore, Federal Court Rule 1008 provides that the Federal Court has the power to determine the rights of all claimants to moneys paid into court pursuant to Rule 1007(7). Thus, it is difficult to differentiate, on a principled basis, between a situation where the Crown establishes a claim in the provincial court which is then executed in the Federal Court and the situation in this case where the provincial court purports to order forfeiture of monies in the hands of a Federal Court. In the result, one is not necessarily driven to infer, as the Court of Appeal concluded, that, taken together, s. 70(3) and 71(1) serve to limit the grant of power to order forfeiture in s. 72(1).
42 Indeed, had Parliament intended the phrase “any proceeds realized from its disposition” to be limited to proceeds of perishables in ss. 71(1) and 72(1), it could have done so expressly, as it did in s. 70(3), as well as ss. 72(2) and 72(3). Instead, a pattern in the use of the phrase at issue is evident whereby in some sections it is expressly limited to the proceeds of perishables and in other sections it refers more generally to all forms of property seized under the Act and proceeds thereof.
43 In addition, it is notable that ss. 70(3) and 71(1) are directed at the property of a person at a stage in the proceedings where the person is only accused of an offence. Whereas s. 72(1) is directed at the property of a person who has been convicted of an offence. Thus, ss. 70(3) and 71(1) are distinct from s. 72(1) in that the former address procedural matters and the later is in effect a sentencing provision. In this sense, s. 72 stands alone and apart from the immediately preceding sections. This would seem to run against the argument that one must read ss. 70(3), 71(1) and 72(1) together in interpreting the phrase “any proceeds realized from its disposition”.
(b) Continued Physical Detention
44 The appellant argues that the Court of Appeal erred by finding that continued physical detention of seized property is a precondition to an order of forfeiture under s. 72(1). The only clear and express preconditions to such an order is the conviction of the accused. Otherwise, the words in s. 72(1) are equivocal on this point. A continued physical detention precondition might make sense were the word “seized” to be read only in the present tense. However, the word “seized” can also be read in the past tense and so may also refer to things formerly seized under the Act. Furthermore, the legal definition of “forfeiture” is “a divestiture of specific property without compensation”: see Black’s Law Dictionary (6th ed. 1990), at p. 650. It may be that after a bare divestiture of the property rights of the owner, without more, the title to property would necessarily vest in the party holding possession, i.e. the Crown, where the property was detained under its authority up until forfeiture. However, s. 72(1) reads “the court may . . . order that any thing . . . or any proceeds . . . be forfeited to Her Majesty”. Thus, once forfeiture has been ordered under s. 72(1), any rights to the property vest in Her Majesty, regardless of who has possession at the time of forfeiture. In other words, a continued physical detention is not expressly stated as a precondition to an order of forfeiture on the face of s. 72(1).
45 However, the Court of Appeal inferred that continued physical detention is a necessary precondition to forfeiture after reviewing the powers to seize, retain custody of and detain property in ss. 51, 70 and 71. The Court of Appeal at para. 34 determined that:
Following a seizure, there are two possibilities: the vessel or other object seized will be detained by the fishery officer or his agent; or, it will be returned to the owner, at which time the seizure will be at an end.
But the Court of Appeal’s analysis in this regard did not, with respect, go far enough. First, the Court of Appeal did not deal with the fact that property could be released from seizure, but not returned to the owner for being subject to an arrest order or an order for sale made under the authority of another court. This is significant since, as noted above, the Fisheries Act was amended in 1991 to remove the limitation that only those proceeds realized by a disposition under the Fisheries Act are subject to forfeiture. Second, the Court of Appeal did not consider the effect of a continued physical detention precondition on the process by which a vessel may be returned to its owner upon the deposit of security under s. 71(2).
46 Under s. 71(2) of the Fisheries Act, the process by which a security deposit obtains the release of seized property is a kind of bailment. Section 71(2) provides that, if security is given to Her Majesty in a form and amount satisfactory to the Minister, the court has a discretionary power to order that the seized property be returned to the person from whom it was seized. In the result, a contract is formed between the Crown and the person seeking the return of the property whereby the person pledges something of value, usually money in an amount equal to or exceeding the market value of the seized property, in order to assure the performance of an obligation by furnishing a resource to be used in case of failure in the principal obligation. This arrangement is mutually beneficial since the person from whom the property was seized is able to reacquire the property and put it to good use, while the Crown need not incur expenses for the storage and maintenance of seized property. In this way, both parties, as well as any creditors, are protected from the diminution of equity that can occur when storage costs accumulate while property is detained. There are, therefore, sound and compelling reasons to interpret this legislation in a way that will harmonize the interests of the accused, the Crown, the employees and creditors that have an interest in getting productive, income-earning property back into circulation. Given the potential for a lengthy period of pre-trial detention, the benefits to be obtained by the return of property on the deposit of security are significant and recourse to this process should not be discouraged.
47 However, for the reasons that follow, recourse to this process would be less attractive if an order of forfeiture were subject to a precondition of continued physical detention. There appears to be no power under the Act to order the forfeiture of a security deposit, only the vessel or other property for which it is exchanged. The right to claim the security deposit is contractual and arises out of the failure of the person to whom the property was returned to perform the obligations undertaken upon the return of seized property. The parties ought to be free to include in such a contract, an obligation to deliver-up the vessel if an order of forfeiture is made against it. There is nothing in the Act to indicate an intention to constrain the parties from contracting in this way.
48 Furthermore, if continued physical detention were a precondition to an order of forfeiture, to preserve the availability of the penalty of forfeiture, either the Crown would have to refuse to accept a security deposit, or the court would have to exercise its discretion and refuse to order the return of the property. There is nothing in the Fisheries Act to indicate that the interim, interlocutory measure of the return of property on the deposit of security should trump or foreclose the remedy of forfeiture. Such an interpretation is inconsistent with the mutual benefits available under this process, the harmonization of the interests of the parties and innocent third parties, the intention of Parliament to increase the severity and flexibility of penalties under the Fisheries Act, and the deterrent effect of the power of forfeiture. Taking all of this into consideration, I believe it follows that s. 72(1) contemplates the making of an order of forfeiture against a vessel that has been released from seizure and returned on the deposit of security. It also follows that when s. 72(1) authorizes the forfeiture of “any thing seized under this Act”, that includes things that have been formerly seized under the Fisheries Act, but released from seizure.
(c) Relief from Forfeiture
49 In addition, the Court of Appeal did not consider the implications of s. 75 of the Fisheries Act. Section 75 permits innocent parties with an interest against property to apply to a provincial superior court for an order that their interest is not affected by the forfeiture and declaring the extent of their interest. It is open to an innocent party to assert its interest in the form of an in rem claim against a vessel in the Federal Court, under its admiralty jurisdiction. Notwithstanding the respondent’s argument that the courts in Newfoundland have retained their admiralty jurisdiction intact, such a course of action is natural, especially in jurisdictions where the superior courts’ admiralty jurisdiction has been ceded to the Federal Court of Canada. Indeed, it would be perverse to force a litigant claiming an in rem interest in a seized vessel to wait for an order of forfeiture under the Fisheries Act in order to have the extent of its interest determined by a court of admiralty jurisdiction. Thus, it is evident from s. 75 that the Fisheries Act does contemplate the possibility of parallel proceedings, in personam and in rem, involving the same vessel. This lends further support to the view that s. 72(1) authorizes the forfeiture of proceeds realized pursuant to an authority other than the Fisheries Act.
(d) Harmonization of Statutes
50 As noted above, 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 is important to apply the principles for harmonizing different statutes in this case.
51 The admiralty provisions of the Federal Court Act and the provisions of the Fisheries Act can and should be read as a consistent, harmonious scheme for the regulation of maritime matters. Fishing vessels and their use are at the heart of the activities governed by each regime, and the law in one area will inevitably exert an influence on the law in the other. For example, it is a likely scenario that many fishing vessels are mortgaged and must be active and producing income in order to discharge the mortgage. A seizure of such a vessel under the Fisheries Act can result in a lengthy pre-trial detention. If an owner is unable to obtain the return of the vessel by posting security, by taking the vessel out of the working ocean, it is likely that a period of detention that curtailed the income producing activities of the vessel would precipitate a civil claim against the vessel in a court of admiralty jurisdiction such as the Federal Court of Canada. Therefore, a reasonable and obvious explanation of the 1991 amendments to s. 72(1) is that the above scenario was anticipated by the legislators, who, in order to preserve the jurisdiction of the courts to impose forfeiture as a penalty, broadened the power to make an order of forfeiture to include in its scope the proceeds of a disposition of a seized vessel realized under an authority other than the Fisheries Act, thus giving effect to Parliament’s intention to increase penalties for fisheries offences while also preserving the operation of the presumption of innocence vis-à-vis the quasi-criminal processes of the Fisheries Act.
52 If the Court of Appeal’s narrow interpretation of s. 72(1) is adopted, an order for sale emanating from the Federal Court would terminate the jurisdiction of the Newfoundland Supreme Court to order forfeiture. As between the Fisheries Act and the grant of admiralty jurisdiction in the Federal Court Act, such a result does not comply with the principle of interpretation that presumes a harmony, coherence, and consistency between statutes dealing with the same subject matter.
V. Conclusion
53 Considering the various issues in this appeal, the jurisdictional questions they raise, and the reconciliation of jurisdictions in rem and in personam, criminal and commercial, maritime and penal, and Federal Court and provincial court, I conclude that s. 72(1) does authorize 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.
54 For the foregoing reasons, I would allow the appeal, set aside the order of the Court of Appeal, and restore the order of forfeiture made by the sentencing judge.
Appeal allowed.
Solicitor for the appellant: The Deputy Attorney General of Canada, Ottawa.
Solicitors for the respondent: Lewis, Sinnott, Shorthall & Hurley, St. John’s.