Court of Appeal

NOVA SCOTIA COURT OF APPEAL

Citation:  R. v. Allen, 2005 NSCA 118

 

Date:  20050831

Docket:  CAC 238837

Registry: Halifax

 

Between:

 

 

Clifford Robert Jr. Allen, Joseph E. Boudreau,

John Alex Grant, Darren Lee Langille

Jason Andrew MacDonald and Edwin D. Shaw

Appellants

v.

 

Her Majesty the Queen

Respondent

 

 

 

 

 

Judge(s):               Saunders, Freeman and Oland, JJ.A.

 

Appeal Heard:      May 16, 2005, in Halifax, Nova Scotia

 

Held:                    Leave to appeal granted, but appeal dismissed as per reasons for judgment of Saunders, J.A.; Freeman and Oland, JJ.A. concurring.

 

Counsel:               Gary A. Richard, for the appellant

Daniel A. MacRury, for the respondent

 

Reasons for judgment:

 

 

[1]              This cases raises important issues concerning the constitutional powers accorded to the federal and provincial governments under the provisions of the Constitution Act, 1867, and in particular whether the Fisheries Organizations Support Act, S.N.S. 1996, c. 6, s. 1 (“FOSA”) is intra vires the Province of Nova Scotia.

 

[2]              To put these issues in context and set the stage for the analysis that follows I will begin by briefly outlining the material facts which led to this prosecution.

 

Factual background to these proceedings

 

[3]              Each of the six appellants was charged on the Information of T. A. MacKay, Fisheries Inspector, that between January 1 and December 31, 2003 he:

 

. . . being a licence holder fail[ed] to pay annual dues for the 2003 year to an organization accredited by the Minister, as required by section 9 of the Fisheries Organization [sic] Support Act S.N.S. 1995-96, c. 6, s. 1 as amended and thereby committing an offence contrary to section 13 of the Fisheries Organization [sic] Support Act S.N.S. 1995-96, c.6, s. 1 as amended;

 

[4]              They were tried in the Provincial Court before Judge Robert A. Stroud on November 23, 2004.  In a decision dated December 14, 2004, the judge found each of the appellants guilty of the offence as charged.

 

[5]              On December 16, 2004, each of the appellants was sentenced by Judge Stroud to a fine of $100.

 

[6]              Many of the facts in this case were uncontroverted and were established through evidence contained in a joint, formal Admissions At Trial filed pursuant to s. 655 of the Criminal Code (as made statutorily applicable to summary conviction matters).  Owing to the concise manner in which those facts were stipulated and the helpful way they are set out in both their geographical and statutory contexts, I prefer to reproduce the operative portions of the segment labelled Agreed Statement of Facts, excluding the attachments, being certain tabbed extracts from the FOSA and the Regulations passed pursuant to it.

 

                                   AGREED STATEMENT OF FACTS

 

A.        History and Background of the Legislation:

 

The Fisheries Organizations Support Act (FOSA) is legislation that was enacted in 1996 [O.I.C. 96-860 (November 19, 1996)] along with a set of accompanying regulations, Nova Scotia Regulation 170/96 both of which have since been amended.  The purpose of the legislation is as stated in s. 2 of the Act.

 

The purpose of this Act is to strengthen fisheries organizations in the Province and provide a procedure to enable accredited fisheries organizations to collect mandatory annual dues from licence holders.

 

The legislation defines a “licence holder” as;

 

. . a person, other than a part-time fisher or a corporation with an enterprise allocation, who holds a limited entry licence under the Fisheries Act (Canada) that permits the taking of fish.

 

                                                                . . .

 

Section 10 of the Fisheries Organizations Support Act provides that all “licence holders” shall pay annual dues to an accredited organization.  The Fisheries Organizations Support Act in section 13 sets out the offence and penalty for a “licence holder” who violates the Act as follows:

 

Any person who violates any provision of this Act or the regulations is guilty of an offence and is liable on summary conviction to a penalty of not more than five hundred dollars.

 

Under the legislation the Province is divided into six regions with a number of various fishing organizations in each of the regions.  Two regions voted affirmatively to accept the legislation and to seek accreditation for the organizations in the regions:  Region 1 and 3.  The remaining regions-2, 4, 5, and 6-have organizations but they are not accredited pursuant to the Fisheries Organizations Support Act.

 

The numbers provided below are from the Department of Agriculture and Fisheries and represent the approximate number of “licence holders” at the time of voting in 1997-98.  The numbers may have varied slightly since then due to the passing of a licence holder, cancellation of a licence etc.

 

Region 1           645      . . . . .               Region 4           483

 

Region 2           678      . . . . .               Region 5           1388

 

Region 3           347      . . . . .               Region 6           456

 

In Region 1 there are 645 “licence holders in nine accredited organizations of which approximately 10% are not paying their mandatory annual dues and, therefore, are in violation of the legislation.  In Region 3 there are 347 “licence holders” in three accredited organizations of which approximately 1% are not paying their mandatory annual dues and, therefore, are in violation of the legislation.

 

All other “licence holders” in the other regions within the Province did not vote to accept an organization that could be accredited under the Fisheries Organization [sic] Support Act to represent their interest.  Therefore, they are not obligated to pay mandatory dues and subsequently are not in violation of the Fisheries Organization [sic] Support Act.

 

B.        Offence Charged:

 

The defendants have been charged as follows:

 

1.  Clifford Robert Jr. Allen, of 518 Miller Road Pugwash, Nova Scotia B0K 1L0, being an adult, between the 01 day of January, 2003 and the 31 day of December, 2003, at, or near, Malagash Nova Scotia, did being a licence holder fail to pay dues for the 2003 year to an organization accredited by the Minister, as required by section 9 of the Fisheries Organization [sic] Support Act, S.N.S. 1995-96, c. 6, s. 1 as amended and thereby committing an offence contrary to section 13 of the Fisheries Organization [sic] Support Act S.N.S. 1995-96, c. 6, s. 1 as amended;

 

                                                                . . .

 

 

 

[Note to Reader:

 

(1)        Each of the other appellants faced a similar charge, they being:

 

Joseph E. Boudreau, RR# 4 Antigonish, Antigonish County, NS  B2G 2L2

 

John Alex Grant, of RR# 4 River John, Pictou County, NS  B0K 1N0

 

Darren Lee Langille, of P.O. Box 20 Malagash, NS  B0K 1E0

 

Jason Andrew MacDonald, of P.O. Box 145 Merigonish [sic] Pictou County, NS B0K 1G0

 

Edwin D. Shaw, of RR# 1 Pictou County, NS B0K 1H0

 

John Lane Sampson, Box 1761 Antigonish, NS B2G 2M5.

 

(2)        Counsel have advised that John Lane Sampson was removed from these proceedings and was not sentenced on December 16, 2004 with the other six appellants.  Mr. Sampson is awaiting trial on this charge before Embree, Prov. Ct. J., on January 11 and 12, 2006, in Antigonish.]

 

Of the seven defendants only John Alex Grant and Darren Lee Langille actually belonged to an accredited organization at the time of the alleged offence, both defendants belonged to the Northumberland Fishermen’s Association.  The remaining five defendants did not belong to an accredited organization in the Province.  The legislation does not require a “licence holder” to belong to an accredited organization only to pay annual dues to an accredited organization.  All seven of the defendants are “licence holders” as defined in the legislation at the time of the offence knowingly failed to pay annual dues to an accredited organization as required by the legislation.  All seven of the defendants could have paid their 2003 annual dues to anyone of the nine accredited organizations located within Region 1.  The names of the accredited organizations and their contacts that the defendants could have paid dues to for the year 2003 are as follows:

 

 

 

 

 

             REGION 1 ACCREDITED ASSOCIATIONS (November 2002)

 

 

 

 

 

C.     Admissions:

 

Based upon the above noted facts and in accordance with section 655 of the Criminal Code of Canada, the following defendants admit into evidence that they; Clifford Robert Jr. Allen, Joseph E. Boudreau, John Alex Grant, Darren Lee Langille, Jason Andrew MacDonald, Edwin D. Shaw and John Lane Sampson are “licence holders” as defined in the Fisheries Organizations Support Act and they did knowingly fail to pay annual dues between January 1, 2003 and December 31, 2003 to an organization accredited by the Minister as required by section 9 of the Fisheries Organizations Support Act.  

 

Issues

 

[7]                   By notice of appeal filed January 14, 2005, the appellants seek leave to appeal and if successful, ask that the appeal be allowed, their convictions quashed and acquittals entered on all charges. The appellants say the trial judge erred in finding that:

 

(i)    The FOSA was not ultra vires the constitutional legislative authority of the Province of Nova Scotia;

 

(ii)   The FOSA did not violate the defendants’ rights under the Canadian Charter of Rights and Freedoms; and

 

(iii)  even if the legislation violates the appellants’ s. 2(d) Charter rights, it is justifiable under s. 1.

 

[8]                   In reply the respondent argues that the trial judge was correct to declare the FOSA  intra vires the Province of Nova Scotia; and right to find that the FOSA did  not violate s. 2(d) of the Charter or, if it did, that such a breach would be justified under s. 1.  The Crown asks that leave to appeal be denied, but that if granted, the appeal ought to be dismissed.

 

The Law

 

[9]                   For convenience I will now set out (or repeat) those provisions from the statute, and the regulations that are material to the disposition of this appeal.

 

[10]              The purpose of the legislation is set out in s. 2 of the FOSA which provides:

 

2  The purpose of this Act is to strengthen fisheries organizations in the Province and provide a procedure to enable accredited fisheries organizations to collect mandatory annual dues from licence holders.

 

[11]              Among important definitions in the interpretation section of the legislation, “licence holder” is defined as:

 

(3) 1  . . .

 

(b) “licence holder” means a person, other than a part-time fisher or a corporation with an enterprise allocation, who holds a limited entry licence under the Fisheries Act (Canada) that permits that taking of fish;

 

[12]              The procedure for determining whether regional licence holders agree to have their interests represented by an accredited organization begins with s. 5 which provides:

 

5 (1) The Minister shall conduct a vote among the licence holders in a region to determine whether the licence holders want an organization to represent the interests of the licence holders in the region in matters relating to the management and regulation of the inshore fishery.

 

[13]         Accreditation and payment of annual dues are set out in sections 8 and 9 of the Act which provide:

 

Accreditation

 

8  Every organization, that applies to the Minister for accreditation pursuant to this Act with respect to a region and that meets the criteria established by regulation, shall be accredited by the Minister to represent the licence holders in the region.

 

Annual dues

 

9  Every licence holder in a region shall pay annual dues to an organization accredited by the Minister to represent licence holders in that region. 1995-96, c. 6. s. 9.

 

[14]         The charging and penalty provision is found in s. 13 which reads:

 

Offence and penalty

 

13  Any person who violates any provision of this Act or the regulations is guilty of an offence and is liable on summary conviction to a penalty of not more than five hundred dollars.

 

[15]         Among the regulations passed since 1995, s. 9(1) provides:

 

An accredited organization shall

 

. . .

 

(e)  require that its members pay a minimum of $100 in annual dues;

 

(f) have a membership of at least 100 eligible licence holders or 15 percent of the eligible licence holders in a region, or be otherwise recognized by the Minister on a special sectoral basis to be genuinely representative of a unique industry sector, which recognition shall take into consideration the following criteria:

 

(i) whether the organization was in existence at the time of the vote,

 

(ii) any recognition by the Department of Fisheries and Oceans or the Province,

 

(iii) the geographical isolation of its membership,

 

(iv) whether the organization represents only a specific species or type of fishing gear and comprises 25 individuals or 80% of this sector,

 

(v) whether the membership is truly unique, special and separable from general multi-species enterprises and other sectors of the fishery,

 

(vi) whether the licences held by core fishers who are members

 

(A) fit the requirements of the special sector, and

 

(B) are specific licences for the species represented by the organization,

 

(vii) whether the proposed membership can be effectively represented by any other accredited group;

 

                                                                . . .

 

(g) pay an annual accreditation fee to the Province of

 

(i) $20 per member, or

 

(ii) $1000, whichever is less.

 

                                                                . . .

 

(2) An organization may only represent those sectors of the fishery for which it is accredited.

 

                                                                . . .

 

14 (1) Organizations may solicit membership and collect dues.

 

(2) In a region where a positive vote has taken place, all licence holders are required to pay annual dues to an accredited organization of their choice.

 

15 Each accredited organization shall submit a current report to the Minister during the months of May and October of each calendar year listing those of its members who have paid their annual dues and those who are in arrears.

 

Analysis

 

[16]         Regulations passed pursuant to the FOSA divide the Province into six regions. As the Admissions at Trial make clear, each region hosts a number of fishing organizations. Two regions: Region #1 and Region #3, voted affirmatively to accept the legislation and seek accreditation for the organizations in those regions. Of the six appellants only John Alex Grant and Darren Lee Langille actually belonged to an accredited organization at the time of the alleged offence.  The FOSA does not require a licence holder to belong to an accredited organization; only to pay annual dues to an accredited organization. All of the appellants are licence holders as defined in the legislation. Each admitted in the Admissions at Trial the actus reus of the offence, that is that he:

 

... did knowingly fail to pay annual dues between January 1, 2003 and December 31, 2003 to an organization accredited ... as required by s. 9 of the Fisheries Organizations Support Act.

 

[17]         At trial the appellants advanced two arguments in their defence. First, they said the FOSA was ultra vires the Province of Nova Scotia because in their submission the legislation deals primarily with the management, maintenance, preservation and regulation of the fishery, thus trespassing on an exclusive federal power over “Sea Coast and Inland Fisheries” reserved to Parliament pursuant to s. 91(12) of the Constitution Act, 1867.  Second, the appellants argued that the FOSA violated their rights under s. 2 of the Canadian Charter of Rights and Freedoms, specifically their freedom of association pursuant to s. 2(d) since by obliging the appellants to pay annual membership dues to an accredited organization (with which the appellants might philosophically disagree) the statute - in effect - violated the appellants’ constitutional freedoms by compromising their right not to associate, and that such a Charter breach could not be justified under s. 1.

 

[18]         Those submissions were rejected by the trial judge. For the reasons that follow I am satisfied that Stroud, J. correctly decided the matter, and while I would grant leave, I would dismiss the appeal.

 

[19]         In disposing of this appeal two questions must be addressed:

 

1.  Is the Fisheries Organizations Support Act ultra vires the constitutional legislative authority of the Province of Nova Scotia?

 

2.  Is the Fisheries Organizations Support Act a violation of the appellants’ rights under the Canadian Charter of Rights and Freedoms?  If so, is it a justifiable violation under s. 1?

 

First Issue: Constitutional Viability of the FOSA

 

[20]         After reviewing the evidence, counsels’ submissions and the leading jurisprudence, Stroud, J. disposed of the appellants’ first argument by declaring:

 

In my view the Act in pith and substance relates to property and civil rights within the Province of Nova Scotia and is therefore intra vires the legislative powers of the province under s. 92(13) of the Constitution Act, 1867.

 

[21]         Based on the record and the issues raised in this case, the operative sections of the Constitution for the purposes of determining whether the FOSA is intra vires the Province of Nova Scotia are s. 91(12) and 92(13). The former deals with federal jurisdiction over fisheries. The latter deals with provincial jurisdiction over property and civil rights.

 

Powers of the Parliament

 

Legislative Authority of Parliament of Canada

 

91.       It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make laws for the Peace, Order, and good Government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the Province; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this section, it is hereby declared that (notwithstanding anything in this Act) the exclusive legislative Authority of the Parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated; that is to say, ...

 

(12)      Sea Coast and Inland Fisheries.

 

Exclusive Powers of Provincial Legislatures

 

Subjects of exclusive Provincial Legislation

 

92.       In each Province the Legislature may exclusively make laws in relation to matters coming within the classes of subjects next hereinafter enumerated; that is to say,

 

...

 

(13)      Property and Civil Rights in the Province.

 

...

 

[22]         The appropriate analytical model to determine the constitutionality of the FOSA was provided by the Supreme Court of Canada in Ward v. Canada (Attorney General), [2002] 1 S.C.R. 569. That case concerned the constitutionality of a federal regulation which prohibited the sale of young hooded and harp seals. The question was whether the prohibition fell under the federal government’s power to legislate in relation to Sea Coast and Inland Fisheries, or the criminal law, in which case it was valid; or whether it fell under the provincial power over property and civil rights, in which case it would be invalid. Chief Justice McLachlin writing for a unanimous court described at ¶ 16 that in resolving the issue posed by the appeal, the Court was obliged to determine whether in pith and substance the federal regulation fell under the federal power over fisheries or the criminal law. Such a pith and substance analysis raised two questions:

 

... first, what is the essential character of the law?  Second, does that character relate to an enumerated head of power granted to the legislature in question by the Constitution Act, 1867.

 

[23]         The Chief Justice then explained that in order to determine the essential character of the law, one asks what is the true meaning or dominant feature of the impugned legislation, which is then resolved by looking at the purpose and the legal effect of the regulation or statute. The analysis, she said, is not technical or overly formalistic, but essentially a matter of interpretation, where the court is to look at the words used in the legislation as well as the background and circumstances surrounding its enactment.

 

[24]         While the trial judge did not explain in detail the particular character he attributed to the impugned legislation, it is clear from a close reading of his decision that he adopted the Crown’s position, that being that the stated purpose of the Act should be given its plain meaning, namely to strengthen fisheries organizations in those regions of Nova Scotia, and that the FOSA should be deemed to be intra vires the Province, unless evidence were presented showing that the legislation trespassed upon the jurisdiction of Parliament in some meaningful way. In other words that it should not be deemed ultra vires simply because it had an incidental impact upon the federal jurisdiction.

 

[25]         In my view Stroud, J. properly applied the principles espoused by the Court in Ward, in his assessment of the evidence and in upholding the constitutional validity of the FOSA. Furthermore his strong factual findings are amply supported in the evidence, both as established in the Admissions at Trial as well as the viva voce testimony led by the appellants, and the Crown.

 

[26]         The purpose of the legislation is clearly set out in s. 2 of the FOSA. The “plain meaning” of the purpose of this legislation is to strengthen the fisheries organizations in the Province and provide a mechanism by which accredited fisheries organizations may collect mandatory annual dues from licence holders. The record in this case, which includes the Nova Scotia House of Assembly (Hansard) debates at the time the legislation was introduced, confirm that its purpose was to provide a procedure to enable fisheries organizations to collect annual dues, and to lend strength to the voice and viability of fisheries organizations in the Province.

 

[27]         Stroud, J. dismissed as speculative, or unsupported by the evidence, the appellants’ arguments that the impugned legislation was a disguised or  “colourable” attempt by the Province to manage the fisheries; or that the statute was designed to limit the number of fisheries organizations which in turn would prompt Fisheries and Oceans, Canada to restrict its negotiations regarding the fishery to such organizations; or that those who fish would then tend not to be “attracted to any organizations that can effectively only deal on their behalf with one level of government”.

 

[28]         The evidence led by the respondent, in particular the testimony of Ms. Katherine Wallace, a community research coordinator with one particular accredited association within Region #1, and Mr. Clary Reardon, a marine advisor with the Nova Scotia Department of Agriculture and Fisheries, whose responsibility it was to administer this statute, effectively rebutted the appellants’ complaints and principal arguments. The overall effect and weight of the Crown’s evidence was accurately summarized by the trial judge when he said:

 

Based upon my assessment of the evidence the goal of accredited organizations is to represent the best interests of fishers in relation to a broad range of subjects including, inter alia: assisting new fishers enter the industry, training fishers in water safety, assisting fishers in becoming certified by FOC, representing fishers at FOC meetings, etc. Although some of the meetings with FOC will undoubtedly relate to the health of the resource, the organizations’ role is one of negotiator, not legislator or enforcer.

 

[29]         If anything, the respondent’s position was strengthened by the evidence of Messrs. Stirling Heighton and Angus MacDonald, the two witnesses who testified on behalf of the appellants. Neither was a defendant charged in these proceedings. While each was an experienced fisherman, Mr. Heighton had never belonged to an accredited fishing organization, and Mr. MacDonald had only belonged to a fishermen’s association in the early 1990's before the FOSA was introduced. It is clear from a reading of the trial judge’s decision that he placed little weight on their evidence which, at all events, amounted to nothing more than their choosing not to belong, because of disenchantment with the management style of one of the organization’s leaders, or a perception that the particular concerns of individual fishermen or small groups of fishermen might be ignored.

 

[30]         Those views were clearly dispelled by Ms. Wallace and Mr. Reardon. They described the democratic processes in place for nominating or rejecting leadership within the organizations. They explained how the enabling legislation had provided a framework which strengthened the ability of these organizations to operate effectively, but independently of government. They testified that strength in numbers had enabled groups to have their voices heard; that membership among fishers had increased since accreditation; that negotiations with government had proved effective in a variety of endeavours including reducing the individual cost of safety training; that there were now much better ways to inform the membership with respect to conservation, resource management, quotas, and research projects of interest to the fishers; that it had provided the means for achieving a greater understanding of aboriginal fishermen, and an expansion of the organizations to include known varieties of sub-species; and, that amending the legislation had helped to  broaden the provincial Minister’s discretion to bypass the strict membership requirements, thereby including individual or small groups of fishermen whose interests were truly unique but only represented in very small numbers.

 

[31]         Finally, both Messrs. Heighton and MacDonald acknowledged that the legislation in no way affected his licence, his quota, his ability to fish, or his freedom of choice in opting not to join the organization.

 

[32]         In my respectful view the trial judge was correct to conclude that there was no evidence to sustain the complaint that the impugned legislation either directly or by “colourable” means, infringed in any way upon the fundamental areas over which the federal government exercises exclusive control over the fishery. See for example Ward, supra at paras. 34-38.

 

[33]         In summary I see no error on the part of the trial judge in the manner in which he considered the essential character of the FOSA, nor how he related the character of the impugned legislation to the authority granted to the Nova Scotia Legislature by the head of power enumerated in s. 92(13) of the Constitution Act, 1867.

 

Second Issue:  Section 2(d) Charter Right

 

[34]         The appellants’ second principal argument advanced at trial and repeated on appeal is put this way in their factum:

 

62.       At the end of the day, the Defendants’ position is this: the Act imposes upon a class of fishers in a region - licence holders only - membership in any fishery organization accredited in that region.  There is a concomitant statutory obligation to pay membership dues at a rate set, from time to time, by the organization.  This obligation is enforceable through the criminal justice apparatuses of the state.

 

63.       This scheme represents an infringement upon the individual fisher’s right not to associate with a group with whom the fisher disagrees respecting ideology or practice.

 

64.       The circumstances established by the evidence do not satisfy the onus created by Section 1 of the Charter to prove that the infringement or limitation upon the recognized right, as it is created in the Act, is demonstrably justifiable.

 

[35]         In rejecting this submission Stroud, J. adopted and applied the reasons of LaForest, J., writing for the majority in Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211 commencing at ¶ 190, and the separate concurring reasons of Iacobucci, J. joining the majority in R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209. Judge Stroud wrote:

 

The Supreme Court of Canada has, as a result of R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209 and Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211 has [sic] acknowledged that right to associate also implies a limited right not to associate.  However, before legislation will be considered to violate that right it must be demonstrated that it imposes a danger to a specific liberty interest.

 

In R. v. Advance Cutting & Coring Ltd., Supra, Iacobucci J. stated at paragraphs 284 & 285:

 

284.     “Unlike my colleagues Bastarache and LeBel JJ. I have serious reservations about basing the analysis of the negative right within s. 2(d) on an inquiry principally into whether the state has obliged the adoption of a certain ideology. . . . .”

 

285.     “In preference to the "ideological conformity" test, I would adopt an analysis that construes the negative freedom within s. 2(d) more broadly. That is, I would endorse the analytical framework set out by La Forest J. in Lavigne. According to La Forest J., where the state obliges an association of individuals whose affiliation is already "compelled by the facts of life" (such as in the workplace), and the association serves the common good or "further[s] the collective social welfare", s. 2(d) will not be violated unless the forced association imposes a danger to a specific liberty interest.”

 

In my opinion the above analytical framework endorsed by Iacobucci J. and LaForest J. is appropriate to the facts of this case because obligation to pay dues involves an association of fishers whose affiliation is already “compelled by the facts of life (the fishing industry). Since, in my view of the evidence, the accredited associations provided for by the Act serve the common good and further the collective social welfare, s. 9 of the Act does not violate s. 2(d) of the Charter. Implicit in this conclusion is a finding that the Defendants have failed to conclusively demonstrate that the compelled association seriously undermines any liberty interest of the Defendants.

 

[36]         In both Lavigne, supra and Advance Cutting, supra, the Court found that there was a limited right not to associate. However, it is important to recall that in Lavigne, supra, the Court held that the plaintiff’s freedom guaranteed by s. 2(d) of the Charter had not been infringed, and that in Advance Cutting, supra, while a majority of the judges (the four in dissent, joined by Iacobucci, J.) on this single point found that an infringement had occurred, Iacobucci, J. held (in contrast to those in dissent) that the infringement could be justified under s. 1, with the result that he concurred with the ultimate disposition reached by the majority in dismissing the appeal.  It is also worth noting that in Advance Cutting, supra, the Supreme Court upheld legislation that imposed compulsory union membership before the competency certificate needed to work in the construction industry, could be obtained. In Lavigne, supra, the Supreme Court found that compelling the payment of union dues used in part to support causes, ideological or otherwise, to which a payor objected, did not violate the plaintiff’s freedom of association or expression under s. 2(d).

 

[37]         By contrast the impugned statute in this case was in my view properly described by Mr. Reardon in his testimony as “enabling legislation”. It mandates the accreditation and orderly function of these fisheries organization. It does not restrict or purport to regulate the species fished in those regions. It provides a mechanism by which annual dues may be collected by accredited fisheries organizations. It does not in any way compromise a licence holder’s ability to fish, or to obtain and maintain a licence or a quota. Thus, by comparison, the impugned legislation here seems almost benign when contrasted with the provisions and repercussions challenged in either Lavigne or Advance Cutting, supra.

 

[38]         In conclusion on this point, there is simply no evidence from any of the appellants charged in this prosecution or from any other source, supporting a violation of their freedom of association by their having to pay dues to an accredited organization within their region. The appellants have failed to establish any breach of s. 2(d) of the Charter.

 

[39]         By contrast there was ample evidence to support the trial judge’s findings that the affiliation of those who fish is driven by the reality of their workplace, and that the accreditation of fishing associations provided for by the FOSA serves the common good and furthers the collective social welfare.  Accordingly he did not err in his application of the principles established in Lavigne, or Advance Cutting, supra, nor in his decision that s. 9 of the FOSA did not violate the appellants’ s. 2(d) Charter rights. Furthermore - on this record - the trial judge was correct to conclude that the appellants had failed to present evidence that the compelled association compromised their liberty interests.

 

[40]         The trial judge went on to consider whether - assuming a Charter violation - the impugned legislation was justified under s. 1 of the Charter. He said:

 

Even if I had come to the opposite conclusion the legislation is, in my opinion, justified under s. 1 of the Charter.

 

Section 9 only imposes an obligation to pay dues to an accredited association. This requirement does not force membership on fishers. They remain free to disassociate themselves from the activities of accredited associations (but, based upon the evidence before me, it is difficult to imagine why they would do so).

 

In coming to this conclusion I have adopted the reasoning of La Forest J. in Lavigne, supra. In my view the compulsion to pay dues to an accredited association is rationally connected to the purposes of the Act.  In addition, the minimum impairment test has also been met and an opting out formula could seriously undermine accredited associations’ financial base and thereby limit their effectiveness and ability to accomplish the goals of the Act.

 

[41]         Accepting, as I do, the correctness of the trial judge’s conclusion that the appellants had failed to establish any violation of their Charter rights, I need not go on to express any opinion concerning the issue of justification, nor the trial judge’s analysis with respect to it.

 

Conclusion

 

[42]         In conclusion I find that the trial judge was correct in upholding the constitutional viability of the FOSA, and in rejecting the appellants’ complaint that their Charter right of freedom of association had been violated. I would grant leave, but dismiss the appeal.

 

 

 

Saunders, J.A.

 

Concurring:

 

Freeman, J.A.

 

Oland, J.A.