Ward v. Canada (Attorney General)
Encyclopedia
Ward v. Canada, 2002 SCC 17, [2002] 1 S.C.R. 569, is a leading Supreme Court of Canada
decision on federalism
. The Court re-articulated the "pith and substance
analysis and upheld the regulations prohibiting sale of "blueback" seals for the valid purpose of "curtailing commercial hunting of young seals to preserve the fisheries as an economic resource".
. He also held a commercial seal hunting license. During a hunt in 1996 he caught approximately 50 seals some of which were hooded "blueback" seals. He was charged with selling blueback seal pelts contrary to s. 27 of the Marine Mammal Regulations
.
Ward applied to the Newfoundland superior court to have the regulation declared ultra vires
of the federal government.
The issue before the Supreme Court was "whether the federal regulation prohibiting the sale, trade or barter of blueback seals is a valid exercise of the federal fisheries power or the federal criminal law power".
Her analysis began by examining the pith and substance of the law. She divided it into two steps. First, the court must determine the "essential character of the law", and second, whether "that character relates to an enumerated head of power" under the Constitution Act, 1867.
On the first step she consolidates all of the principles from the previous case law on the matter.
McLachlin says that the court must look at the wording of the Act as well as the circumstances that it was enacted.
On the facts of the case the purpose of the regulation was
Consequently, the "pith and substance' of the law was found to be in relation to the "management of the Canadian fishery" which McLachlin found would fall within the federal fisheries power under section 91(12) of the Constitution Act, 1867.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
decision on federalism
Canadian federalism
Canada is a federation with two distinct jurisdictions of political authority: the country-wide federal government and the ten regionally-based provincial governments. It also has three territorial governments in the far north, though these are subject to the federal government...
. The Court re-articulated the "pith and substance
Pith and substance
Pith and substance is a legal doctrine in Canadian constitutional interpretation used to determine under which head of power a given piece of legislation falls...
analysis and upheld the regulations prohibiting sale of "blueback" seals for the valid purpose of "curtailing commercial hunting of young seals to preserve the fisheries as an economic resource".
Background
Ford Ward was a licensed fisherman from NewfoundlandNewfoundland and Labrador
Newfoundland and Labrador is the easternmost province of Canada. Situated in the country's Atlantic region, it incorporates the island of Newfoundland and mainland Labrador with a combined area of . As of April 2011, the province's estimated population is 508,400...
. He also held a commercial seal hunting license. During a hunt in 1996 he caught approximately 50 seals some of which were hooded "blueback" seals. He was charged with selling blueback seal pelts contrary to s. 27 of the Marine Mammal Regulations
Marine Mammal Regulations
Marine Mammal Regulations is a set of rules that govern the taking and treatment of marine mammals in Canada. The regulations are part of the Fisheries Act.The Marine Mammal Regulations s are divided into nine “parts”:...
.
Ward applied to the Newfoundland superior court to have the regulation declared ultra vires
Ultra vires
Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is...
of the federal government.
The issue before the Supreme Court was "whether the federal regulation prohibiting the sale, trade or barter of blueback seals is a valid exercise of the federal fisheries power or the federal criminal law power".
Opinion of the Court
McLachlin, writing for the majority, held that the law was a valid Act of the Parliament of Canada.Her analysis began by examining the pith and substance of the law. She divided it into two steps. First, the court must determine the "essential character of the law", and second, whether "that character relates to an enumerated head of power" under the Constitution Act, 1867.
On the first step she consolidates all of the principles from the previous case law on the matter.
- What is the true meaning or dominant feature of the impugned legislation? This is resolved by looking at the purpose and the legal effect of the regulation or law... The purpose refers to what the legislature wanted to accomplish. ... The legal effect refers to how the law will affect rights and liabilities, and is also helpful in illuminating the core meaning of the law. The effects can also reveal whether a law is "colourable", i.e. does the law in form appear to address something within the legislature's jurisdiction, but in substance deal with a matter outside that jurisdiction.
McLachlin says that the court must look at the wording of the Act as well as the circumstances that it was enacted.
On the facts of the case the purpose of the regulation was
- to regulate the seal fishery by eliminating the commercial hunting of whitecoats and bluebacks through a prohibition on the sale, while at the same time allowing for a limited harvesting of these animals for non-commercial purposes. Stated another way, the "mischief" that Parliament sought to remedy was the large-scale commercial hunting of whitecoats and bluebacks. This was done to preserve the economic viability of not only the seal fishery, but the Canadian fisheries in general."
Consequently, the "pith and substance' of the law was found to be in relation to the "management of the Canadian fishery" which McLachlin found would fall within the federal fisheries power under section 91(12) of the Constitution Act, 1867.