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R. v. Pierce Fisheries Ltd.

[1971] SCR 5 Court SCC Decision date 1970-06-26 English

PartiesHer Majesty The Queen Appellant·Pierce Fisheries Limited Respondent

Counsel (4)
J.A. Scollin, Q.C., for the Crown, appellant.
G.T.H. Cooper, for the accused, respondent.
Solicitor for the appellant: The Attorney General of Canada, Ottawa.
Solicitors for the respondent: Mclnnes, Cooper and Robertson, Halifax.

Judges Cartwright, John Robert; Fauteux, Joseph Honoré Gérald; Abbott, Douglas Charles; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Hall, Emmett Matthew; Spence, Wishart Flett; Pigeon, Louis-Philippe

Decision 1–8 Majority (1) · RITCHIE J. (8)

On appeal from Nova Scotia

Subjects Fishery

Contents

Majority

The judgment of Fauteux, Abbott, Martland, Judson, Ritchie, Hall, Spence and Pigeon JJ. was delivered by

RITCHIE J.

RITCHIE J.—I have had the advantage of reading the reasons for judgment of Cartwright C.J., in which he has recited the main facts giving rise to this appeal and reproduced a great many of the relevant statutory provisions. I will endeavour to avoid repetition except in so far as I find it necessary in order to illustrate my meaning.
The question to be determined on this appeal was stated for the opinion of the Appeal Division of Nova Scotia by Judge C. Roger Rand, Q.C., a Provincial Magistrate, in the following terms:
Is mens rea an essential ingredient to be established by evidence on a charge of violating Sub-section (1)(b) of Section 3 of the Lobster Fisheries Regulations?
The relevant subsection reads as follows:
3. (1) No person shall, in any district or portion of a district,
(b) at any time fish for, catch, kill or have in possession any lobster of a length less than that specified in the Schedule for that district or that portion of a district.
Generally speaking, there is a presumption at common law that mens rea is an essential ingredient of all cases that are criminal in the true sense, but a consideration of a considerable body of case law on the subject satisfies me that there is a wide category of offences created by statutes enacted for the regulation of individual conduct in the interests of health, convenience, safety and the general welfare of the public which are not subject to any such presumption. Whether the presumption arises in the latter type of cases is dependent upon the words of the statute creating the offence and the subject-matter with which it deals.
In the case of Cundy v. Le Cocq[6], the appellant had been convicted of selling liquor to a
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person who was drunk, contrary to s. 13 of the Licensing Act, 1872, although he was unaware of the drunkenness. In affirming this conviction, Stephen J. clearly indicated that in 1884 the presumption of mens rea had already ceased to have general application in statutory offences. At p. 210 he said:
In old time, and as applicable to the common law or to earlier statutes, the maxim may have been of general application; but a difference has arisen owing to the the greater precision of modern statutes. It is impossible now, as illustrated by the cases of Reg. v. Prince, L.R. 2 C.C.R. 154, and Reg. v. Bishop, 5 Q.B.D. 259, to apply the maxim generally to all statutes, and the substance of all the reported cases is that it is necessary to look at the object of each Act that is under consideration to see whether and how far knowledge is of the essence of the offence created.
The case most frequently cited as illustrating the limits of the presumption that mens rea is an essential ingredient in all offences and the exceptions to it, is Sherras v. De Rutzen[7], where Wright J. said, at p. 921:
There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered…
The learned judge then went on to say:
…the principal classes of exceptions may perhaps be reduced to three. One is a class of acts which, in the language of Lush J. in Davies v. Harvey, L.R. 9 Q.B. 433, are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty.
The italics are my own.
The two other classes of exceptions to which Wright J. referred were public nuisances and proceedings which, although criminal in form, are really only a summary mode of enforcing a civil right.
In considering the full effect to be given to Wright J.’s definition of the first class of ex-
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ception, i.e., acts which are not criminal in any real sense but rather “acts which in the public interest are prohibited under a penalty”, I derive great assistance from the dictum of Dixon J. in the High Court of Australia in Proudman v. Dayman[8], at p. 540, to which reference was made in this Court in The Queen v. King[9], at p. 762, where he said of the presumption of the existence of mens rea as an essential ingredient in criminal offences:
The strength of the presumption that the rule applies to a statutory offence newly created varies with the nature of the offence and the scope of the statute. If the purpose of the statute is to add a new crime to the general criminal law, it is natural to suppose that it is to be read subject to the general principles according to which that law is administered. But other considerations arise where in matters of police, of health, of safety or the like the legislature adopts penal measures in order to cast on the individual the responsibility of so conducting his affairs that the general welfare will not be prejudiced. In such cases there is less ground, either in reason or in actual probability, for presuming an intention that the general rule should apply making honest and reasonable mistake a ground of exoneration, and the presumption is but a weak one.
The italics are my own.
The same thought was expressed by Lord Reid in the recent case of Sweet v. Parsley[10], where he said at p. 474 speaking of the first class of exception referred to by Wright J. in Sherras v. De Rutzen, supra:
It has long been the practice to recognize absolute offences in this class of quasi‑criminal acts, and one can safely assume that, when Parliament is passing new legislation dealing with this class of offences, its silence as to mens rea means that the old practice is to apply. But when one comes to acts of a truly criminal character, it appears to me that there are at least two other factors which any reasonable legislator would have in mind. In the first place a stigma still attaches to any person convicted of a truly criminal offence, and the more serious or more disgraceful the offence the greater the stigma.
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In the case of The Queen v. King, supra, this Court found that the enactment of s. 223 of the Criminal Code did “add a new crime to the general criminal law” and I think it must be assumed that in the case of Beaver v. The Queen[11], the Court considered that the offence created by s. 4(1)(d) of the Opium and Narcotic Drug Act, R.S.C. 1952, c. 201, also constituted a crime in the “real sense”. In the course of the reasons for judgment which he delivered on behalf of the majority of the Court in that case, Cartwright J. (as he then was) had occasion to say:
…I can discern little similarity between a statute designed, by forbidding the sale of unsound meat, to ensure that the supply available to the public shall be wholesome, and a statute making it a serious crime to possess or deal in narcotics; the one is to ensure that a lawful and necessary trade shall be carried on in a manner not to endanger the public health, the other to forbid altogether conduct regarded as harmful in itself.
The italics are my own.
The scope and purpose of the Regulations here at issue are in my view to be determined by a consideration of the provisions of s. 34 of the Fisheries Act, R.S.C. 1952, c. 119, as amended by 1960-61, c. 23, s. 5, which provide that:
34. The Governor in Council may make regulations for carrying out the purposes and provisions of this Act and in particular, but without restricting the generality of the foregoing, may make regulations
(a) for the proper management and control of the seacoast and inland fisheries;
(b) respecting the conservation and protection of fish;
(c) respecting the catching, loading, landing, handling, transporting, possession and disposal of fish;…
I agree with the submission made on behalf of the appellant, which appears to have received qualified approval in the reasons for judgment rendered on behalf of the Appeal Division by the Chief Justice of Nova Scotia, that the Lob-
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ster Fishery Regulations are obviously intended for the purpose of protecting lobster beds from depletion and thus conserving the source of supply for an important fishing industry which is of general public interest.
I do not think that a new crime was added to our criminal law by making regulations which prohibit persons from having undersized lobsters in their possession, nor do I think that the stigma of having been convicted of a criminal offence would attach to a person found to have been in breach of these regulations. The case of Beaver v. The Queen, supra, affords an example of provisions of a federal statute other than the Criminal Code which were found to have created a truly criminal offence, but in the present case, to paraphrase the language used by the majority of this Court in the Beaver case, I can discern little similarity between a statute designed, by forbidding the possession of undersized lobsters to protect the lobster industry, and a statute making it a serious crime to possess or deal in narcotics.
In view of the above, it will be seen that I am of opinion that the offence created by s. 3(1)(b) of the Regulations falls within the first class of exceptions referred to by Wright J. in Sherras v. De Rutzen, supra, and that it should be construed in accordance with the language in which it was enacted, free from any presumption as to the requirement of mens rea.
In considering the language of Regulation 3(1)(b) it is significant, though not conclusive, that it contains no such words as “knowingly”, “wilfully”, “with intent” or “without lawful excuse”, whereas such words occur in a number of sections of the Fisheries Act itself which create offences for which mens rea is made an essential ingredient.
In this latter regard, the outstanding example is s. 55, by subs. (1) of which it is made an offence for any person who has not got a licence from the Minister (a) to leave any port or place in Canada “with intent to fish” or “to cause any other person to fish with a vessel that uses an ‘otter’ or other trawl of a similar nature…” and (b) to “knowingly” bring into Canada any fish caught beyond the territorial waters of Canada
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with any vessel that uses an “otter” or other trawl of a similar nature. Finally, s. 55 subs. (6) provides that “The burden of proving absence of intent or knowledge, when intent or knowledge is necessary to constitute an offence under this section, lies upon the person accused, and intent or knowledge shall be presumed unless negatived by proof”.
This appears to me to be a clear indication of the fact that in making provision for offences under the Fisheries Act, Parliament was careful to specify those of which it intended that guilty knowledge should be an essential ingredient.
The learned Chief Justice of Nova Scotia adopted the view that the governing intention of the Fisheries Act was to be found in s. 18 thereof which reads:
18. No one, without lawful excuse, the proof whereof lies on him, shall fish for, buy, sell or have in his possession any fish, or portion of any fish, at a place where at that time fishing for such fish is prohibited by law.
(The italics are my own.) It is significant, however, as has been pointed out in the reasons for judgment of Cartwright C.J., that the words “lawful excuse” are given a very limited meaning by s. 2(g) of the Fisheries Act which reads:
2. In this Act,
(g) “lawful excuse” means
(i) ability to prove that fish in possession during the close time therefor at the place of possession, were legally caught; or
(ii) the unintentional or incidental catching of any fish that may not then be taken, when legally fishing for other fish;
The italics are my own.
Section 18 appears to be the only section of the Fisheries Act itself in which the words “lawful excuse” occur and I think that when that section and the definition section are read together, there is a clear inference that they refer to fish caught during the close season.
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This appears to me to be borne out by the provisions of s. 3(1)(a) of the Lobster Fishery Regulations which immediately precede the regulation here in question and read:
3. (1) No person shall, in any district or portion of a district,
(a) during the closed season specified in the schedule for that district or that portion of a district
(i) fish for, catch or kill any lobster,
(ii) have any lobster in possession without lawful excuse; or
(iii) leave lobster pots in the water on lobster fishing grounds;…
The italics are my own.
The offence of violating the prohibition contained in s. 3(1)(a)(ii) is therefore not one of strict liability, in that proof of lawful excuse in the limited sense defined in the Act constitutes a defence and the fact that there is no provision for such a defence in the subsection which immediately follows (i.e., 3(1)(b)) is, in my view, another strong indication of the fact that the offence here charged is one of strict liability.
It is said, however, that all enactments which make “possession” of a forbidden substance an offence are to be construed in accordance with the view adopted by a majority of this Court in the Beaver case, supra, at p. 541 where it was said:
The essence of the crime is the possession of the forbidden substance and in a criminal case there is in law no possession without knowledge of the character of the forbidden substance.
This appears to me to be another way of saying that guilty knowledge is an essential ingredient wherever possession is made the essence of an offence, but it is to be remembered that the statement was made in relation to what was found in that case to be a truly criminal offence and I do not think that it applies to statutory offences which are not “criminal in any real sense”.
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In the present appeal we are, of course, bound by the facts as set forth in the case stated by the learned Provincial Magistrate which include a finding that:
From the evidence three main facts stand out:
1. There were undersized lobsters in the possession of Pierce Fisheries Limited on April 29, 1968.
2. The evidence does not show that any officer or responsible employee of Pierce Fisheries Limited had any knowledge, factually or inferentially, that the said undersized lobsters were on the said premises.
3. There is evidence that the President of Pierce Fisheries Limited had specifically instructed other officers, responsible employees and dealers not to buy undersized lobsters for Pierce Fisheries Limited.
I think that the finding of these main facts must be read in light of the following circumstances to which the learned Provincial Magistrate refers in the stated case:
On April 29th, 1968 in his capacity as a Fishery Officer Mr. Mason went to Pierce Fisheries Limited to check specifically for lobsters. He found 26 undersized lobsters. Some of these were in crates ready for shipment and others were in boxes from which lobsters were being taken preparatory for packing. Four or five plant employees were present when Mr. Mason carried out his investigation. The lobsters were seized from crates and boxes in a building known as the outside shed where fish is weighed and packed, which shed forms a part of the premises of Pierce Fisheries Limited…
Mr. Ernest Pierce, who is President of Pierce Fisheries Limited said that his company buys lobsters from various areas and sources through its dealers and that about April 29, 1968 that Company would have bought and brought to the plant 50,000 to 60,000 lbs. They came to the plant by truck and by boat. Mr. Pierce denied that he had any knowledge of undersized lobsters being on company property on April 29, 1968.
These circumstances, taken together with the first of the three “main facts” stated by the learned Magistrate, make it clear beyond any
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question that the respondent was in physical possession of 50,000 to 60,000 pounds of lobsters, some of which were undersized, but it is contended that because there was no evidence to show that “any officer or responsible employee” of the company had any knowledge of the presence of these undersized lobsters, they were therefore not in the respondent’s possession as a matter of law.
This is not a case where a quantity of lobsters, some of which turned out to be undersized, was “planted” on the premises of Pierce Fisheries Limited by a trick, nor did the 50,000 or 60,000 pounds of lobsters come to the respondent’s plant by mistake or otherwise without its knowledge. The respondent was a dealer in lobsters and it purchased this great quantity in the course of its business. It cannot be suggested that no officer or responsible employee of Pierce Fisheries Limited had knowledge of the fact that a big shipment of lobsters was being packaged on the premises on the day in question, but it was not proved that any of these people knew that there were any undersized lobsters in the shipment. As employees of the company working on the premises in the shed “where fish is weighed and packed” were taking lobsters from boxes “preparatory for packing” in crates, and as some of the undersized lobsters were found “in crates ready for shipment”, it would not appear to have been a difficult matter for some “officer or responsible employee” to acquire knowledge of their presence on the premises.
This case appears to me to fall into the same category as that of R. v. Woodrow[12], to which Wright J. referred in the Sherras case, where the accused, a dealer in tobacco, was charged with having adulterated tobacco in his possession. He had a quantity of tobacco on his premises but he did not know that any of it was adulterated. In the course of his reasons for judgment Chief Baron Pollock observed at p. 415:
It appears to me, that, in this case, it being within the personal knowledge of the party that he
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was in possession of the tobacco, (indeed, a man can hardly be said to be in possession of anything without knowing it), it is not necessary that he should know that the tobacco was adulterated; for reasons probably very sound, and not applicable to this case only, but to many other branches of the law, persons who deal in an article are made responsible for its being of a certain quality.
And Baron Alderson in the same case said, at p. 418:
I cannot say that this man had not the tobacco in his possession, because he clearly knew it. He did not know it was in an adulterated state, but he knew he had it in his possession; and the question of “knowingly”, it appears to me, is involved in the word possession. That is, a man has not in his possession that which he does not know to be about him. I am not in possession of anything which a person has put into my stable without my knowledge. It is clear, therefore, that possession includes a knowledge of the facts as far as the possession of the article is concerned.
In this case the respondent knew that it had upwards of 60,000 pounds of lobsters on its premises; it only lacked knowledge as to the small size of some of them, and I do not think that the failure of any of its responsible employees to acquire this knowledge affords any defence to a charge of violating the provisions of s. 3(1)(b) of the Lobster Fishery Regulations.
If lack of knowledge by any responsible employee constituted a defence for a limited company to a charge under s. 3(1)(b) of the Regulations, then I think it would in many cases be virtually impossible to secure a conviction.
The language used by Mr. Justice Roach in R. v. Pee-Kay Smallwares Ltd.[13], at p. 137, appears to me to be pertinent in this regard. The learned judge there said:
If on a prosecution for the offences created by the Act, the Crown had to prove the evil intent of the accused, or if the accused could escape by denying such evil intent, the statute, by which it was obviously intended that there should be complete
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control without the possibility of any leaks, would have so many holes in it that in truth it would be nothing more than a legislative sieve.
With the greatest respect for those who may hold a different view, I am of opinion that the offence of violating subs. (1)(b) of s. 3 of the Lobster Fishery Regulations is an offence of strict liability of which mens rea is not an essential ingredient.
I would accordingly allow this appeal and direct that the question of law stated by the learned Provincial Magistrate, upon which leave to appeal to this Court was granted, be answered in the negative and that the case be remitted to the Provincial Magistrate to be dealt with in accordance herewith.
Under the circumstances there will be no order as to costs.
Appeal allowed, CARTWRIGHT C.J. dissenting.
Solicitor for the appellant: The Attorney General of Canada, Ottawa.
Solicitors for the respondent: Mclnnes, Cooper and Robertson, Halifax.

Footnotes

  1. [1] (1969), 4 D.L.R. (3d) 80, [1969] 4 C.C.C. 163.
  2. [2] (1819), 3 B. & Ald. 266, 106 E.R. 661.
  3. [3] [1969] 2 W.L.R. 470.
  4. [4] [1948] 1 All E.R. 283.
  5. [5] [1957] S.C.R. 531.
  6. [6] (1884), 13 Q.B.D. 207.
  7. [7] [1895] 1 Q.B. 918.
  8. [8] (1941), 67 C.L.R. 536.
  9. [9] [1962] S.C.R. 746.
  10. [10] [1969] 2 W.L.R. 470.
  11. [11] [1957] S.C.R. 531.
  12. [12] (1846), 15 M. & W. 403, 153 E.R. 907.
  13. [13] (1947), 90 C.C.C. 129.

Cases cited

  • Sherras v. De Rutzen Sherras v. De Rutzen, supra
  • of The Queen v. King of The Queen v. King, supra
  • of Beaver v. The Queen of Beaver v. The Queen, supra
  • the Beaver the Beaver case, supra, at p. 541 p. 541

Statutes and regulations cited