Municipal control of waterways
I have a Constitutional Challenge of a City of Calgary "Water Safety Bylaw" in court tomorrow (Calgary new courthouse, 9:30 AM ... R. vs Latouche --- I act for the Defendants)
The case has broad implications for all who use the waterways in Alberta.
The Brief Is Below __________________________________________________ ______________
Province of Alberta Violation Ticket Number: A 35723914 Z
Province of Alberta Violation Ticket Number: A 35723936 Z
IN THE PROVINCIAL COURT OF ALBERTA (CRIMINAL DIVISION)
JUDICIAL DISTRICT OF CALGARY
In the matter of a Constitutional Question or Challenge of the City of Calgary Bylaw Number 9084 (commonly known as the “Water Safety” bylaw), filed pursuant to Part 3, Section 24 of the Alberta Judicature Act, R.S.A. 2000, being Chapter J-2 (including any and all amendments thereto)
Between:
HER MAJESTY THE QUEEN IN RIGHT OF ALBERTA
(THE CITY OF CALGARY)
Complainant
- and -
BRITTIANY ANNE LATOUCHE
Defendant/Applicant
Case: A 35723914 Z
- and -
CORY ANDRE LATOUCHE
Defendant/Applicant
Case: A 35733936
DEFENDANTS / APPLICANTS JOINT SUBMISSION, WRITTEN BRIEF,
ARGUMENT AND AUTHORITIES
FOR THE HEARING OF A CHARTER CHALLENGE ON 17th FEBRUARY 2010
AT 2:00 O’CLOCK IN THE AFTER NOON IN COURTROOM 1005
__________________________________________________ __________________________________________________ __
Lawrence A. Oshanek City of Calgary
As Agent for the Defendant Applicants Ola P. Malik, LL.M
Counsel for the Complainant, City of Calgary
Province of Alberta Canada
Unknown Kirk N. Lambrecht, General Counsel
Civil Litigation and Advisory Services
(Declined to Appear – but requires notification of any appeal).
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This is a Constitutional Question about the validity of Violation Tickets issued to the Defendants pursuant to a City of Calgary Bylaw (BYLAW NUMBER 9084, cited as the “Water Safety Bylaw” – hereinafter referred to as “the bylaw”) in which bylaw the City of Calgary claims jurisdiction over persons engaged in the recreational navigation (by raft or other floating vessel) upon a subsisting waterway within the City of Calgary (the Elbow river).
This is a further Constitutional Challenge of the Province of Alberta’s enabling legislation, currently being s.60(1) of the current Municipal Government Act, R.S.A. 2000, c. M-26, as amended, (hereinafter referred to as “the Act”) which is the enabling legislation that gives to the City of Calgary and other municipalities in Alberta (such powers were previously were within s.169 of the previous Act which was in force in 1974) jurisdiction to make law concerning the control and management of persons engaged upon such rivers, streams, watercourses, lakes and other natural bodies of water in recreational activities within Alberta municipalities.
In fact, the City of Calgary wrote and has written several thousands of Violation Tickets over the course of time to persons otherwise engaged in the peaceful recreational use of an inland waterway governed and regulated exclusively by the Parliament of Canada
SUMMARY / RELIEF SOUGHT
1. It is the position of the Defendant Applicants that it is plain and obvious that the City of Calgary and the Province of Alberta to make bylaw or statue law concerning the conduct or safety of persons engaged in the recreational navigation of an inland waterway are without Constitutional competence to do so and are, in fact, acting entirely within an area of law exclusively granted to the Parliament of Canada pursuant to s.91.10 of The Constitution Act, 1867 and neither Alberta nor Calgary, enjoy any Constitutional basis upon which to make such law or bylaw and:
1. the Defendants seek a Declaration that the “Water Safety Bylaw” and s.60(1) of the Act (MGA) are ultra vies the City of Calgary and the Province of Alberta respectively;
2. Costs of the application;
3. Such further and other relief as this Honourable Court deems appropriate.
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PART 1
FACTS
2. On the 1st day of August 2009, the Defendants, Brittiany and Cory Latouche (sister and brother) were floating down the Elbow river on an inflatable raft with a length of about 2 ½ to 3 meters long when they observed a mixed group of about 25 to 35 Calgary Bylaw Enforcement Officers and Calgary City Police Officers gathered on the south shore of the Elbow River within an area known civically as Stanley Park and geographically at a location approximately corresponding to the 300 block of about 39 Avenue, S.W.
3. Stanley Park is within the City of Calgary in an area roughly described as being between 1a Street and 4a Street and 42 Avenue and 34 Avenue in the South West quadrant of the City of Calgary.
4. The Defendants were in the company of about 5 other persons at the time of their encounter with city bylaw and police officers and they noted that many of the police and bylaw officers were engaged in conversation with people in bathing suits and a good number of inflatable rafts were pulled up onto the shore of the river.
5. A person in uniform called to the Defendant's party as they were floating past and ordered them to come to the shore and they complied.
6. The Defendant's and all of those others within their party were issued court appearance summons by way of Violation Tickets. The Defendant's tickets being numbers A 3523936 Z and A 3523914 respectively and they were issued by Cst. Voth, #4135 / 6MBU / CPS (copy of tickets at TAB "1") for not wearing a PFD (personal floatation device) / life jacket, contrary to Calgary Bylaw 9084 (copy of the bylaw at TAB "2").
7. The Defendant Applicant's caused to be filed with the court two documents, a Notice of Constitutional Question (x's 2), filed on 1 September 2009 and Defendant's Admission of Facts (x's 2), filed on 1 October 2009. Copies of those documents are attached hereto at TAB "3". Service of the Notice Of Constitutional Question was made to the City of Calgary on 1 September 2009 and to the Province of Alberta Crown and to the Federal (Canada) Crown on the 26th day of November, 2009, as is evidenced by the endorsements on the backer page of both those documents. Service of the Defendant's Admission Of Facts was made to the City, Provincial, and Federal Crowns on the 26th day of November 2009, which is evidenced by the endorsements upon the backer pages of those documents.
:
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PART 2
ARGUMENT
8. The Constitution Act, 1867, (hereinafter referred to as “the CA”) in section 91 reads (at TAB "4", back of page 3 and on page 4):
VI. DISTRIBUTION OF LEGISLATIVE POWERS
Powers of the Parliament
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 Provinces; 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,--
and in s. 91.10:
10. Navigation and Shipping.
Section 92 of the Constitution Act, 1867 reads:
Exclusive Powers of Provincial Legislatures.
92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subject next hereinafter enumerated; that is to say,--
and the City of Calgary Bylaw 9084 reads, in part (first page of TAB "2":
WHEREAS the Council may pursuant to Section 17 of the Municipal Government Act pass Bylaws which are not contrary to any Statute of the Province of Alberta for the peace, order and good Government of the municipality and for promoting, among other things, the safety and welfare thereof,
9. It is the position of the Defendant’s that: … 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 Provinces… is itself, a power granted exclusively to the Federal Parliament and such language is not repeated within s.92 of The Constitution Act, 1867 and further, that no such power is available to the Province of Alberta to pass on the City of Calgary, yet, the City of
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Calgary tries to justify it's incursion into an area exclusive to Her Majesty pursuant to the preamble of s.91 by assuming (by proxy) a power of the Parliament of Canada. An examination of the current Municipal Government Act (hereinafter referred to as MGA) shows that Section 17 referred to in the Bylaw no longer exists within said MGA.
10. The Defendant's cite the following cases respecting the FEDERAL POWER of "peace, order and good government" (cases cited are found a TAB "5"):
a) R. v. Morgentaler, [1993] 1 S.C.R. 462 (On page 1)
Practice Intervention New issues Supreme Court of Canada Motion to prohibit intervener from presenting argument on federal peace, order and good government power Intervener not entitled to widen or add to points in issue Motion granted.
and on the bottom of page 2 and the top of page 3:
The following is the judgment delivered by
SOPINKA J. The motion brought by the appellant Attorney General of Nova Scotia to prohibit the intervener (respondent on the motion) Canadian Abortion Rights Action League (CARAL) from presenting argument on the federal peace, order and good government power (POGG) is granted.
The above case refers to the FEDERAL peace, order and good government power (POGG) and it is about a Motion by a provincial attorney general to prevent standing for an intervener in the case.
b) Ontario (Human Rights Commission) v. National Dental Examining Board of Canada, [1991] 3 S.C.R. 121 (at the bottom of page 1 and top of page 2)
Constitutional law Division of powers Jurisdiction Federally incorporated board Board not operating under Peace, Order and Good Government clause or federal Trade and Commerce power Board subject to provincial human rights legislation Ontario Human Rights Commission jurisdiction over complaints.
The judgment of the Court was delivered orally by
LA FOREST J. It will not be necessary to hear you Ms. Minor. The Court is ready to give judgment. The constitutional question reads:
Under the Constitution Act, 1867, is the Ontario Human Rights Code applicable to the National Dental Examining Board of Canada with respect to the investigations which are the subject of this appeal?
The Board is not operating under the Peace, Order and Good Government clause or the trade and commerce power under s. 91 of the Constitution Act, 1867, but is simply a federally incorporated board subject to provincial human rights legislation. Therefore, the Ontario Human Rights Commission has jurisdiction over complaints that are the subject of this appeal.
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The above case deals with a question of jurisdiction of a federally incorporated board seeking protection from the Ontario Human Rights Commission based upon the Federal government's s.91 power to legislate for the peace, order and good government of Canada in a Constitutional area exclusively held by the Provinces.
c) R. v. Hauser, [1979] 1 S.C.R. 984
ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION
This case overturns previous cases of preventing federal intrusion into an area reserved exclusively for the provinces under s.92. The majority decision giving the federal government power in an area of provincial jurisdiction is based wholly on the power granted to the federal government in the preamble of s.91 giving Parliament powers for peace, order and good government.
In addition, this case also confirms the power of the Federal Parliament to provide for the imposition of penalties in areas in which the federal government can legislate and regulate, that is to say, under the power to legislate on matters of navigation pursuant to s.91(10).
I begin with the third paragraph of page 996:
[Page 996]
There is in s. 91 no counterpart of head 15 of s. 92:
15. The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section.
However, as is made abundantly clear by head 29 of s. 91, there can be no doubt as to the existence of federal power to provide for the imposition of penalties for the violation of any federal legislation, entirely apart from the authority over criminal law. That a distinction is to be made, appears clearly from the many cases holding that the criminal law power is really not unlimited, that it cannot be used as a device for any purpose. In Attorney General for Ontario v. Reciprocal Insurers[7], at p. 342, Duff J., as he then was, said speaking for the Privy Council:
[Page 997]
…it is no longer open to dispute that the Parliament of Canada cannot, by purporting to create penal sanctions under s. 91, head 27, appropriate to itself exclusively a field of jurisdiction in which, apart from such a procedure, it could exert no legal authority, and that if, when examined as a whole, legislation in form criminal is found, in aspects and for purposes exclusively within the Provincial sphere, to deal with matters committed to the Provinces, it cannot be upheld as valid…
I will therefore proceed to consider whether the Narcotic Control Act is to be classified as legislation enacted under the Criminal Law power. I cannot accept as conclusive on this point the statements made in the judgment of this Court in Industrial Acceptance Corporation Limited v. The Queen[8]. This was a private claim and it appears from
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what Locke J. (dissenting in part) said (at p. 280), that it was “conceded on behalf of the appellant that The Opium and Narcotic Drug Act 1929 is in pith and substance criminal law, within the meaning of that expression in s.-s. 27 of s. 91”. That concession was effective towards the appellant who made it in that case and the Court could decide accordingly, but it would not result in a binding precedent on the point. Furthermore, it really made little difference in the case whether the Act was “criminal law” or not.
Drug abuse did not become a problem in this country during the last century. At the time of Confederation, there was concern only with alcohol. This was treated as a local matter, being dealt with only incidentally in head 9 of s. 92:
9. Shop, Saloon, Tavern, Auctioneer, and other Licenses in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes.
When greater control was considered necessary by the federal Parliament, the legislation was not treated as criminal law. As is well known, it was supported under the general power to make laws for the Peace, Order and Good Government of Canada (Russell v. The Queen[9], A.G. for Ontario v. Canada Temperance Federation[10]).
[Page 1000]
I do not overlook what was said with respect to the distinctive features of criminal law in the Margarine Reference[12]. The Court was concerned in that case to ascertain whether the prohibitory legislation under consideration could be brought within the description of “criminal law”. A negative conclusion was reached on the basis that the purpose of that prohibition was economic, this does not establish that all other prohibitions are “criminal law” and it should not be taken as decisive of the criterions accepted for so characterizing other prohibitions.
In my view, the most important consideration for classifying the Narcotic Control Act as legislation enacted under the general residual federal power, is that this is essentially legislation adopted to deal with a genuinely new problem which did not exist at the time of Confederation and clearly cannot be put in the class of “Matters of a merely local or private nature”. The subject-matter of this legislation is thus properly to be dealt with on the same footing as such other new developments as aviation (Re Aeronautics[13]) and radio communica-
[Page 1001]
tions (Re Radio Communication[14]).
[Page 1006]
The judgment of Dickson and Pratte JJ. was delivered by
DICKSON J. (dissenting)—Stated in narrow terms, the question raised in these proceedings is whether s. 2 of the Criminal Code, R.S.C. 1970, c. C-34, authorizes the Attorney General of Canada or his agent to prosecute offences under the Narcotic Control Act, R.S.C. 1970, c. N 1. It is apparent, however, from the amplitude of the factums and the breadth of argument in this Court, that the issues extend far beyond that simple question.
Although dissenting, Dickson, J raised the case below:
[Page 1017]
A case much relied upon by the federal Crown is Regina v. Pelletier[24]; (application for leave to appeal to this Court refused[25]). In that case, the
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[Page 1018]
accused was charged with conspiring to traffic in a narcotic contrary to the Narcotic Control Act thereby constituting the offence of conspiracy under the then s. 408 of the Criminal Code. On appeal, the appellant raised the issue as to whether or not the Attorney General of Canada can prosecute in one of the provinces of Canada an
accused charged with that offence. In the course of a lengthy judgment, delivered on behalf of the Court, Mr. Justice Estey made the following observations, p. 542:
On the one hand, the Province, under the guise of “administration of justice” or the included authority to “constitute criminal courts”, has the authority to legislate (at least until Parliament expands the Criminal Code prosecutorial functions to exclude the provincial function), with reference to the appointment of a prosecutor in provincial criminal Courts.
On the other hand, Parliament, by reason of the combination of exclusive sovereignty in criminal law and criminal procedure, and by its overriding authority in matters properly related to “Peace, Order and good Government”, has jurisdiction to legislate with reference to the prosecutorial function at least to the extent that a manifest national interest invokes its “Peace, Order and good Government” authority. In that event the inherent and heretofore largely somnambulant executive function lies in support of the enforcement of the Criminal Code by the Attorney General of Canada and his agents.
If I understand correctly the foregoing passages, the right of Parliament “to legislate with reference to the prosecutorial function” is said to be grounded not only upon Parliament’s exclusive sovereignty in criminal law and criminal procedure, but also upon “Peace, Order and good Government” and the “inherent and heretofore largely somnambulant executive function”. The challenge raised by the accused in Pelletier to the status of the Attorney General of Canada, as prosecutor, was resolved against the accused.
Mr. Justice Dickson goes on to write:
[Page 1019]
Nonetheless, the reasoning of Pelletier has been adopted in a number of other cases, notably R. v.
[Page 1020]
Dunn[26].
I would like now to discuss the following matters which were relied upon in Pelletier: (1) Peace, Order and good Government; (2) Inherent Executive Power; (3) Concurrency; and to consider also one further matter (4) Characterization.
(1) Peace, Order and good Government. With respect, I do not believe that the validity of para. (b) of the definition “Attorney-General” in s. 2(2)of the Criminal Code can be buttressed by Parliament’s general authority to legislate with respect to “Peace, Order and good Government”. Recourse may be had to Parliament’s general power in respect of matters of “national concern” or of “national dimension” which are not enumerated in the specific heads of power. Equally, matters enumerated in s. 92 may temporarily reach “emergency” proportions, justifying federal intervention in what are normally matters of provincial jurisdiction. Before it can then be invoked, however, there must exist in Canada at the time a state of national emergency requiring the implementation of extraordinary measures of a temporary nature. Chief Justice Laskin in Re Anti-Inflation Act[27], at p. 426, was of the view that Parliament might be entitled to employ Peace, Order and good Government to act from the “springboard” of its exclusive jurisdiction under some head of s. 91, (in that case, its jurisdiction over monetary policy and trade and commerce). But in situations other than the foregoing, the Peace, Order and good Government power is not available, nor can it be invoked to strengthen a claim under a head of exclusive federal power.
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(2) Inherent Executive Power. In my view, an “inherent executive function” cannot be used to extend the ambit of legislative power of either government. Upon Confederation, the Crown was divided—of that, there is no doubt. But in that division, ss. 91 and 92 of the British North America Act redistributed in an exhaustive fashion the legislative functions of a unitary state and the executive functions must have followed, of necessi-
[Page 1021]
ty, the distribution of legislative power. Executive power is nurtured by and is dependent upon legislative power. Executive functions, federal and provincial, must be exercised with due regard to, and within the limits prescribed by, ss. 91 and 92 respectively. In short, the issue in this case is not one of executive power, but of legislative competence.
Nowhere in the case law, was the writer able to find any constitutional law, statue law, regulation or any court judgment referencing the power of peace, order and good government as belonging to any province (and through the province – to any municipality) within the Confederation. Although in dissent, the Honourable Mr. Justice Dickson nails the issue before this court squarely upon the head when he says: "In short, the issue in this case is not one of executive power, but of legislative competence". And the Defendant’s maintain that neither from the province or through the province, can any municipality anywhere in Canada, write bylaw for the peace, order and good government of anything.
11. The City of Calgary, in the offending Bylaw suggests that it gains jurisdiction under the MGA (at TAB "2"):
AND WHEREAS pursuant to Section 169 of the Municipal Government Act aftersaid which provides that subject to every other Act a Council has control and management of, among other things, river, streams, watercourses and other bodies of water within the municipality including the air space above and the ground below;
The Defendant's argue that while the MGA has been revised since 1974 and Section 169 of the MGA has become Section 60(1) and that section both previously and currently states:
Water bodies
60(1) Subject to any other enactment, a municipality has the direction, control and management of the rivers, streams, watercourses, lakes and other natural bodies of water within the municipality, including the air space above and the ground below.
1994 cM 26.1 s60
In effect, the Province of Alberta, through the MGA grants to municipalities powers which the Province of Alberta has no Constitutional competence to itself legislate upon. The Province of Alberta offers municipalities a qualified power which is meaningless in the face of s.91.10 in the Act.
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The Defendant's take the position that all such water courses and bodies of water are the exclusive jurisdictional domain of the Federal Parliament pursuant to s.91.10 of The Constitution Act, 1867.
The Constitution Act, 1867, in section 91 reads (at TAB "4", back of page 3 and on page 4):
VI. DISTRIBUTION OF LEGISLATIVE POWERS
Powers of the Parliament
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 Provinces; 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,--
and in s. 91.10 and 91.12:
10. Navigation and Shipping.
12. Sea Coast and Inland Fisheries.
In a parallel statutory and/or regulatory cases, under the jurisdiction granted to the Federal Parliament by the above noted section 91.12 of the Act over Inland Fisheries, the Province of Alberta and a provincially hired contractor, on 25 August 2009, were fined a total of $ 95,000.00 by the Honourable Provincial Court Judge Lamoureux after pleading "guilty" in a Calgary provincial court to violating subsection 35(1) of the federal Fisheries Act (according to the Calgary Herald and Fisheries and Oceans Canada at TAB "6"). On February 14, 2008, the Municipality of Rocky View No. 44 and a construction company working for Rocky View were fined $ 12,000.00 by the Honourable Judge Riley in Cochrane, Alberta after both defendants plead "guilty" to similar offences (also at TAB "6"). On August 14, 2006, Nick Derose of Edmonton plead "guilty" to a violation of subsection 35(1) of the Fisheries Act and was fined $ 5,500.00. On September 20, 2005 the Town of Gravenhurst, Ontario was fined, after pleading "guilty" to a violation of subsection 35(1) of the Fisheries Act, a total of $ 5,000.00 and the British Columbia Ministry of Forests plead "guilty" to a violation of the Fisheries Act paying a $ 30,000.00 fine also at TAB "6"). Allan Korchinski is fined $7000.00 on 25 August 2005 in a Calgary court.
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The claim that the Province of Alberta can grant powers to municipalities over either navigation or shipping is absurd in the face of the fact that Alberta Justice, less then 1 year ago, did not contest the Federal government's right to make law and regulation concerning areas adjacent to the Elbow River in Kananaskis Provincial Park where work was done at the behest of Alberta Tourism, Parks and Recreation within areas of emergent and riparian shoreline of said Elbow river.
It is clear from the "guilty" pleas entered into the courts by the Province of Alberta and the municipality of Rocky View that it is apparent to both levels of government that water bodies and the areas adjacent to them are not controlled or managed by municipalities or the provincial government. Supremacy of federal jurisdiction prevailed in every case making the MGA s.60(1) a hollow power indeed.
12. The CANADA SHIPPING ACT, 2001, S.C.,2001, c. 26 (hereinafter referred to as "the CSA") and the Navigable Waterways Act, Chapter N-22, R.S., c. N-19, s.1 (herein referred to as “the NWA”) [the CSA and the NWA are attached at TAB “7”] are the primary expressions of the Federal government jurisdiction over navigation under s.91.10 of the Act. The relevant definitions listed in s.2. of the CSA are reproduced below:
Definitions
2. The definitions in this section apply in this Act.
“Canadian maritime document” « document maritime canadien »
“Canadian maritime document” means a licence, permit, certificate or other document that is issued by the Minister of Transport under Part 1 (General), 3 (Personnel), 4 (Safety), 9 (Pollution Prevention — Department of Transport) or 11 (Enforcement — Department of Transport) to verify that the person to whom or vessel to which it is issued has met requirements under that Part.
“foreign vessel” « bâtiment étranger »
“foreign vessel” means a vessel that is not a Canadian vessel or a pleasure craft.
“passenger” « passager »
“passenger” means a person carried on a vessel by the owner or operator, other than
(a) a person carried on a Safety Convention vessel who is
(i) the master, a member of the crew or a person employed or engaged in any capacity on board the vessel on the business of that vessel, or
(ii) under one year of age;
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“pleasure craft” « embarcation de plaisance »
“pleasure craft” means a vessel that is used for pleasure and does not carry passengers, and includes a vessel of a prescribed class.
“prescribed” Version anglaise seulement
“prescribed” means prescribed by regulations made by the Governor in Council.
“vessel” « bâtiment »
“vessel” means a boat, ship or craft designed, used or capable of being used solely or partly for navigation in, on, through or immediately above water, without regard to method or lack of propulsion, and includes such a vessel that is under construction. It does not include a floating object of a prescribed class.
Objectives of Act
6. The objectives of this Act are to
(a) protect the health and well-being of individuals, including the crews of vessels, who participate in marine transportation and commerce;
(b) promote safety in marine transportation and recreational boating;
(f) develop a regulatory scheme that encourages the viable, effective and economical use of Canadian waters by recreational boaters;
(g) ensure that Canada can meet its international obligations under bilateral and multilateral agreements with respect to navigation and shipping;
(h) encourage the harmonization of marine practices; and
(i) establish an effective inspection and enforcement program.
MINISTERIAL RESPONSIBILITY
Role of Minister of Transport
9. Except as otherwise provided in this Act, the Minister of Transport is responsible for the administration of this Act.
POWERS OF MINISTERS
General
10. (1) The Minister of Transport or the Minister of Fisheries and Oceans may, with respect to that Minister’s responsibilities under this Act,
(a) establish consultative bodies;
(b) issue bulletins, guidelines and standards; and
(c) enter into agreements or arrangements respecting the administration or enforcement of any provision of this Act or the regulations and authorize any person or organization with whom an agreement or arrangement is entered into to exercise the powers or perform the duties under this Act that are specified in the agreement or arrangement.
PART 10
PLEASURE CRAFT
INTERPRETATION
Definitions
194. The definitions in this section apply in this Part.
“enforcement officer”
« agent de l’autorité »
“enforcement officer” means
(a) a member of the Royal Canadian Mounted Police;
(b) a member of any harbour or river police force;
(c) a member of any provincial, county or municipal police force; and
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(d) any person, or member of a class of persons, designated under subsection 196(1).
“Minister”
« ministre »
“Minister” means the Minister of Transport.
2001, c. 26, s. 194; 2005, c. 29, s. 31.
INSPECTIONS
Designation
195. (1) The Minister may designate persons or classes of persons as pleasure craft safety inspectors.
Certificate
(2) The Minister must furnish every inspector with a certificate of designation as a pleasure craft safety inspector authorizing the inspector to carry out inspections under sections 196 and 198.
Designation
196. (1) The Minister may designate persons or classes of persons as enforcement officers.
Inspections — general
(2) An enforcement officer may inspect a pleasure craft or any of its machinery or equipment for the purpose of ensuring compliance with any provision of this Part, other than section 197, or the regulations made under this Part, other than the regulations made under paragraph 207(1)(f), (g), (i) or (j).
Powers
(4) Enforcement officers acting under subsection (2) and inspectors acting under subsection (3) may
(a) stop or board the craft at any reasonable time;
(b) direct any person to put into operation or cease operating any machinery or equipment on the craft;
(c) direct that the craft not be moved until the inspection is completed;
(d) direct any person to move the craft to a safe place if the officer or inspector has reasonable grounds to believe that it does not meet the requirements of this Part or the regulations made under this Part or exposes any person to serious danger, and direct that it not be operated until it meets those requirements or no longer exposes any person to serious danger; and
(e) direct any person to move the craft to a safe place if the officer or inspector has reasonable grounds to believe that the operator does not meet the requirements of the regulations made under this Part, and direct that the operator not operate it until the operator meets those requirements.
Duty to assist
(5) The owner or person in charge of a pleasure craft and every person on board shall
(a) give an officer or inspector all reasonable assistance to enable them to carry out an inspection and exercise any power conferred by this section; and
(b) produce to an officer or inspector any document, or provide them with any information, that the officer or inspector may reasonably require, for the administration of this Part or Part 5 (Navigation Services) or the regulations made under either of those Parts.
Investigations
.
Stopping and boarding vessels
200. An enforcement officer who has reasonable grounds to believe that an offence has been committed or is about to be committed under this Part by a pleasure craft or any person on board a vessel may stop and board the craft or vessel and take any reasonable action to ensure public safety or protect the public interest.
SAFE OPERATION OF PLEASURE CRAFT
Duty
201. Every operator of a pleasure craft shall ensure that it meets the requirements of the regulations made under this Part.
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REGULATIONS
Regulations
207. (1) The Governor in Council may, on the recommendation of the Minister, make regulations respecting pleasure craft licensing and the safety of pleasure craft or classes of pleasure craft and of persons on board, including regulations
(a) respecting the issuance, cancellation or transfer of pleasure craft licences;
(b) respecting qualifications, including medical fitness, minimum age, degree of knowledge, skill, training and experience, for operators of pleasure craft or classes of pleasure craft, and the evidence required to prove compliance with those qualifications;
(c) respecting the operation of pleasure craft or classes of pleasure craft;
(l) specifying the machinery and equipment that are required or prohibited on pleasure craft or classes of pleasure craft;
(m) respecting the design, construction, manufacture, maintenance, storage, testing, approval, arrangement and use of a pleasure craft’s or a class of pleasure craft’s machinery and equipment;
(n) respecting the requirements that pleasure craft, or classes of pleasure craft, and their machinery and equipment must meet;
(p) respecting the reporting of accidents involving pleasure craft.
Regulations — pollution
(2) The Governor in Council may, on the recommendation of the Minister, make regulations
(a) regulating or prohibiting the discharge of pollutants from pleasure craft; and
(b) regulating noise emissions from pleasure craft engines.
OFFENCES AND PUNISHMENT
Contravention of Act
208. (1) Every person commits an offence who contravenes
(a) subsection 197(1) (ensure a pleasure craft is constructed in accordance with the regulations); or
(b) subsection 197(2) (selling a pleasure craft without a plate or label).
Punishment
(2) Every person who commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $100,000 or to imprisonment for a term of not more than one year, or to both.
Contravention of Act or regulations
209. (1) Every person commits an offence who contravenes
(a) a direction given under any of paragraphs 196(4)(b) to (e) (to operate or cease operating machinery or equipment, to not move a pleasure craft or to move a pleasure craft to a safe place);
(b) subsection 196(5) (give reasonable assistance, produce documents or provide information);
(c) subsection 198(2) (give reasonable assistance, produce documents or provide information);
(d) a direction given under section 199 (not to operate a pleasure craft);
(e) section 201 (ensure that a pleasure craft meets the requirements of the regulations);
(f) section 202 (obtain a licence for a pleasure craft);
(g) section 204 (operating pleasure craft without licence number marked);
(h) section 205 (defacing, altering, concealing or removing licence number); or
(i) a provision of the regulations made under this Part.
Punishment
(2) Every person who commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $10,000.
It is abundantly clear that the Federal Crown, through the CSA occupies the territory in both law and
regulation respecting pleasure boat operations within Canada, including the safety of persons involved in
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the navigation of Canada’s waterways.
13. The Navigable Waterways Act, Chapter N-22, R.S., c. N-19, s.1 (NWA) definitions are:
“Minister”
« ministre »
“Minister” means the Minister of Transport;
“navigable water”
« eaux navigables »
“navigable water” includes a canal and any other body of water created or altered as a result of the construction of any work.
“vessel”
« bateau »
“vessel” includes every description of ship, boat or craft of any kind, without regard to method or lack of propulsion and to whether it is used as a sea-going vessel or on inland waters only, including everything forming part of its machinery, tackle, equipment, cargo, stores or ballast;
“work”
« ouvrage »
“work” includes
(a) any man-made structure, device or thing, whether temporary or permanent, that may interfere with navigation; and
(b) any dumping of fill in any navigable water, or any excavation of materials from the bed of any navigable water, that may interfere with navigation.
R.S., 1985, c. N-22, s. 2; 2009, c. 2, s. 317.
14. Regretably, navigation is not defined in either act. However, in International Minerals & Chemicals Corp. (Canada) Ltd. v. Canada (Minister of Transport), [1993] 1 F.C. 559 the Honourable Mr. Justice MacKay said (at page 4/5 of the attached (at TAB “8”):
The Act itself does not fully define "navigable waters" to which it applies. It does provide in section 2 that "navigable water" includes a canal and any other body of water created or altered as a result of any work. The term is defined, at least for purposes of administering the Act, at page 1, paragraph 2 of Aids and Waterways: Navigable Waters Protection: Application Guide (Canadian Coast Guard, published by the Minister of Supply and Services Canada, 1980, Cat. No. T 31-38/1980, reprinted 1989). That definition is:
"Navigable Waters" includes any body of water capable, in its natural state, of being navigated by floating vessels of any description for the purpose of transportation, recreation or commerce; it also includes a canal and any other body of water created or altered for public use, as a result of the construction of any work, as well as any waterway where the public right of navigation exists by dedication of the waterway for public purposes, or by the public having acquired the right to navigate through long use.
NOTE: The preceding definition is used for administrative purposes only and is not to be construed as a legal definition of navigability; navigability is a matter of fact and not of law. The authority to determine navigability of waterways rests with the Minister of Transport.
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While the note following that definition speaks of navigability as a matter of fact, not of law, determinable by the Minister of Transport, the applicant urges that as a question of fact, whether waters are navigable is a matter properly determinable by the courts. In Saskatchewan Action Foundation for the Environment Inc. v. Saskatchewan (Minister of the Environment and Public Safety) reflex, (1992), 86 D.L.R. (4th) 577 (Sask. C.A.), at pages 604-607, Sherstobitoff J.A. for the majority determined that in the absence of a statutory definition, where there was no provision for determination by the Minister responsible as to what constitutes a "development" for purposes of the Environmental Assessment Act of Saskatchewan, in the case of a dispute whether a project was a "development" within the statute the decision ultimately rests with the courts as a matter of statutory interpretation.
Then on page 8 Mr. Justice MacKay examines what is a navigable waterway:
For both parties the working definition of navigable waters used for administrative purposes in applying the Act is accepted as an appropriate definition, reflecting as it appears to do, the principles enunciated in a number of cases concerning issues of proprietary interests of riparian owners. In Re Coleman et al. and Attorney-General for Ontario et al. reflex, (1983), 143 D.L.R. (3d) 608 (Ont. H.C.) at pages 613-615, Mr. Justice Henry summarized the principles arising from this jurisprudence in the following manner (citations are here omitted)
In Canada the leading jurisprudence has evolved in decisions of the Supreme Court of Canada in the early part of the century with respect to waters in the Province of Quebec. The principles emerging from the cases may, for our purposes, be briefly stated without much elaboration.
(1) A stream, to be navigable in law, must be navigable in fact. That is, it must be capable in its natural state of being traversed by large or small craft of some sort" as large as steam vessels and as small as canoes, skiffs and rafts drawing less than one foot of water.
(2) In the context of the Canadian economy where the timber trade has developed, "navigable" also means "floatable" in the sense that the river or stream is used or is capable of use to float logs, log-rafts and booms.
(3) A river or stream may be navigable over part of its course and not navigable over other parts; its capacity for navigation may therefore be determined by the courts independently at different locations.
(4) To be navigable in law a river or stream need not in fact be used for navigation so long as realistically it is capable of being so used.
(5) To be navigable in law, according to the Quebec decisions, the river or stream must be capable of navigation in furtherance of trade and commerce; the test according to the law of Quebec is thus navigability for commercial purposes.
[I note that Henry J. elsewhere in the decision (at pages 616-622 of 143 D.L.R. (3d)), held that usefulness for commercial purposes is not a test of navigability under the law of Ontario. In his view modern conditions of recreational uses by the public of lakes, rivers and streams ought to be taken into account in determining navigability.]
(6) The underlying concept of navigability in law is that the river or stream is a public aqueous highway used or capable of use by the public. This concept does not embrace uses such as irrigation, power, fishing, or other commercial or non-commercial uses that do not depend upon its character as a public aqueous highway for passage. In law a river or stream is not navigable if it is used only for the private purposes, commercial or otherwise, of the owner.
(7) Navigation need not be continuous but may fluctuate seasonally.
(8) Interruptions to navigation such as rapids on an otherwise navigable stream which may, by improvements such as canals be readily circumvented, do not render the river or stream non-navigable in law at those points.
(9) It would seem that a stream not navigable in its natural state may become so as a result of artificial improvements.
On page 9 of his judgment, Mr. Justice MacKay reviews some of the applicable case law:
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The predecessor of that Part of the Act, originally enacted in 1886 [S.C. 1886, c. 35], was upheld as valid federal legislation in relation to "navigation", within subsection 91(10) of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to theConstitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]] by the Privy Council in Attorney-General for the Dominion of Canada v. Attorneys-General for the Provinces of Ontario, Quebec, and Nova Scotia, [1898] A.C. 700, at page 717. That legislative power was subsequently a basis for a number of questions referred to the Supreme Court of Canada in Reference re Waters and Water-Powers, [1929] S.C.R. 200. While the Court indicated the approach to assessing the scope of the legislative authority of Parliament under subsection 91(10), in light of all other heads of legislative power and other relevant sections of the 1867 Act, no question and no comment by the Court referred to the meaning of "navigable waters" upon which the federal power to legislate in relation to navigation would be applicable.
In Friends of the Oldman River Society v. Canada (Minister of Transport), supra, Mr. Justice La Forest, in dealing with the issue whether the Navigable Waters Protection Act applied to the Crown in right of the province, discussed the historic background and the purposes of the Act. A portion of that discussion (at pages 54-62), which has relevance for this case, included the following comments:
The nature of the public right of navigation has been the subject of considerable judicial comment over time, but certain principles have held fast. First, the right of navigation is not a property right, but simply a public right of way . . . It is not an absolute right, but must be exercised reasonably so as not to interfere with the equal rights of others. Of particular significance for this case is that the right of navigation is paramount to the rights of the owner of the bed, even when the owner is the Crown.
. . .
. . . the paramountcy of the public right of navigation . . . can only be modified or extinguished by an authorizing statute, and as such a Crown grant of land of itself does not and cannot confer a right to interfere with navigation . . .
What is more, the provinces are constitutionally incapable of enacting legislation authorizing an interference with navigation, since s. 91(10) of the Constitution Act, 1867 gives Parliament exclusive jurisdiction to legislate respecting navigation . . . .
[La Forest J. then traced the legislative background, the prior statutes antedating the Act here in question, which was first enacted as R.S.C., 1906 c. 115consolidating prior enactments. That review tends to emphasize the continuing purposes of federal legislation to regulate works or obstructions that adversely affect the public right of navigation.]
. . .
Then on page 10:
The practical necessity for a uniform regulatory regime for navigable waters has already been recognized by this Court in Whitbread v. Walley,1990 CanLII 33 (S.C.C.), [1990] 3 S.C.R. 1273, and the reasoning given there in support of a single body of maritime law within federal jurisdiction is equally applicable to this case. At pages 1294-95, it is stated:
Quite apart from judicial authority, the very nature of the activities of navigation and shipping, at least as they are practised in this country, makes a uniform maritime law which encompasses navigable inland waterways a practical necessity. Much of the navigational and shipping activity that takes place on Canada's inland waterways is closely connected with that which takes place within the traditional geographic sphere of maritime law. This is most obviously the case when one looks to the Great Lakes and the St. Lawrence Seaway, which are to a very large degree an extension, or alternatively the beginning, of the shipping lanes by which this country does business with the world. But it is also apparent when one looks to the many smaller rivers and waterways that serve as ports of call for ocean going vessels and as the points of departure for some of Canada's most important exports. This is undoubtedly one of the considerations that led the courts of British North America to rule that the public right of navigation, in contradistinction to the English position, extended to all navigable rivers regardless of whether or not they were within the ebb and flow of the tide . . . . It probably also explains why the Fathers of Confederation thought it necessary to assign the broad and general power over navigation and shipping to the central rather than the provincial governments . . . .
Were the Crown in right of a province permitted to undermine the integrity of the essential navigational networks in Canadian waters, the legislative purpose of the Navigable Waters Protection Act would, in my view, effectively be emasculated.
….
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As is clear from the comments of Mr. Justice La Forest and of Marceau J.A. the legislative authority of Parliament under subsection 91(10) of the Constitution Act, 1867 in relation to navigation concerns the regulation of the public right to travel or transport for trade, communication or recreation on waters capable of carrying vessels, even vessels of shallow draft such as canoes, using those waters as a highway from one place to another. That authority is not in relation to waters but to the public right of navigation.
In the next paragraph (pages 10/11) Justice MacKay says:
The Navigable Waters Protection Act in Part I provides in section 5 that works, broadly defined, that may interfere with navigation (that is, the public right to travel by water highway), shall not be built or placed in, on, over, under, through or across any navigable water unless the project is approved by the respondent Minister prior to construction, except for any work, other than a bridge, boom, dam or causeway, that in the Minister's opinion does not substantially interfere with navigation.
Mr . Justice MacKay finds that it is the legislative authority of Parliament under subsection 91(10) of the Constitution Act, 1867 in relation to navigation concerns that regulate the public right to travel or transport for trade, communication or recreation on waters capable of carrying vessels, even vessels of shallow draft such as canoes, using those waters as a highway from one place to another. That authority is not in relation to waters but to the public right of navigation.
15. The Defendant’s specifically intends to plead and does so plead that the concurrent jurisdiction
over navigation and shipping within s.22.(1) of the Federal Courts Act.R.S., 1985, c. F-7, s. 1; 2002, c. 8, s. 14. (hereto attached at TAB “8”) is further evidence that the Province of Alberta, and through it, any municipality within Alberta, has no jurisdiction to interfere with or make law or bylaw concerning said navigation. Within the Federal Courts Act is:
Definitions 2. (1) In this Act,
“ship” means any vessel or craft designed, used or capable of being used solely or partly for navigation, without regard to method or lack of propulsion, and includes
(a) a ship in the process of construction from the time that it is capable of floating, and
(b) a ship that has been stranded, wrecked or sunk and any part of a ship that has broken up.
Navigation and shipping
22. (1) The Federal Court has concurrent original jurisdiction, between subject and subject as well as otherwise, in all cases in which a claim for relief is made or a remedy is sought under or by virtue of Canadian maritime law or any other law of Canada relating to any matter coming within the class of subject of navigation and shipping, except to the extent that jurisdiction has been otherwise specially assigned.
Jurisdiction applicable
(3) For greater certainty, the jurisdiction conferred on the Federal Court by this section applies
(a) in relation to all ships, whether Canadian or not and wherever the residence or domicile of the owners may be;
16. On May 09, 2009, the Government of Canada published, 0n page 1403 of the Canada Gazette the Minor Works and Waters (Navigable Waters Protection Act) Order (attached hereto at TAB “8” see page 1410 of that document). There has been some confusion in the case law as to what is a navigable waterway and
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the Minster has defined a navigable waterway as is listed below:
11.(2) Sections of navigable waters are established as a class of navigable waters for the purposes of subsection 5.1(1) of the Act if
(a) the average width of the navigable waters measured at the high-water level is less than 1.20 m; or
(b) the average depth of the navigable waters measured at the high-water level is less than 0.30 m.
17. Whitbread v. Walley, [1990] 3 S.C.R. 1273 at TAB “9”. In this case Mr. Justice La Forest delivered the unanimous decision of the Court and he adoped the reasoning of Madam Justice McLachin, then a Justice in the BC Court of Appeal.
Court of Appeal of British Columbia 1988 CanLII 2819 (BC C.A.), (1988), 26 B.C.L.R. (2d) 203
The reasons for judgment of a unanimous Court of Appeal were written by McLachlin J.A. (Carrothers and Wallace JJ.A. concurring). She commenced her discussion with the question whether s. 647 applied, as a matter of construction, to "non-commercial vessels used purely for pleasure". She concluded that it did. Referring to the very broad definition given the word "ship" in s. 2 of the Act, she expressed the view, at p. 209, that "Parliament having clearly manifested its intention that the Act shall apply by an unambiguous definition, there is no room for reading down the statute based on speculation as to the purpose of the provision in question". Citing Maxwell on the Interpretation of Statutes (12th ed. 1969), at pp. 28-29, and Odgers' Construction of Deeds and Statutes (5th ed. 1967), at p. 241, she observed, at p. 209, that the "intention or purpose of Parliament must derive from the words used in the statute" and that where "these are plain and unambiguous, the court may not circumvent the plain meaning by reference to supposed legislative intent". As further support for her view on the scope of s. 647 (and by extension s. 649), McLachlin J.A. noted that pleasure yachts were expressly exempted from particular sections of the Act: ss. 8, 109(1) and (3), 436 and 466. She also cited a number of cases in which ss. 647 and 649, or their English counterparts, have been applied to pleasure vessels.
McLachlin J.A. then quickly disposed of the question whether, on the facts, the respondent Walley was entitled to rely on s. 649. She noted that s. 649 limits the liability of "any person acting in the capacity of master or member of the crew of a ship" and concluded that Walley was in fact acting in the capacity of master at the time of the accident in which the appellant Whitbread was injured.
McLachlin J.A. then turned, at p. 210, to the central question of whether Parliament had the power under s. 91 of the Constitution Act, 1867, "to legislate with respect to limitation of liability for accidents involving pleasure craft". After noting the powers of the provinces in respect of property and civil rights (s. 92(13)) and of Parliament in respect of trade and commerce (s. 91(2)), she expressed the view that the focus of inquiry was the jurisdiction of Parliament, under s. 91(10), to legislate in respect of navigation and shipping. Citing Proprietary Articles Trade Association v. Attorney-General for Canada, [1931] A.C. 310 (P.C.), she noted that if the impugned provisions were in "pith and substance" legislation in respect to navigation and shipping, it was irrelevant that they also affected property and civil rights. She then observed, on the basis of Montreal City v. Montreal Harbour Commissioners, [1926] A.C. 299 (P.C.), that s. 91(10) has been broadly interpreted. Applying the Black's Law Dictionary (5th ed. 1979) definition of "navigate" ("To journey by water; to go in a vessel; to sail or manage a vessel; to use the waters as a highway for commerce or communication; to ply"), and the same dictionary's definition of "navigation" ("The act or science or the business of traversing the sea or other navigable waters in ships or vessels"), McLachlin J.A. concluded, at p. 211, that the "use of the Calrossie in Indian Arm clearly constituted navigation". Quoting from the case of Nisshin Kisen Kaisha Ltd. v. Canadian National Railway Co., [1981] 1 F.C. 293 (T.D.), where Addy J. had held, at p. 303, that "sections 647 and 648 of the Canada Shipping Act deal squarely with acts, omissions, liabilities and procedures directly related to the subject-matter of navigation and shipping", she further concluded that limitation of the liability of those who use or own vessels such as the Calrossie is a matter directly related to navigation.
Before turning to appellant Whitbread's Charter arguments, McLachlin J.A. gave five reasons for rejecting the argument which had found favour with the trial judge, namely, that the words "navigation and shipping" should be read as applying only to commercial navigation and shipping. These reasons were: (1) acceptance of the argument required the reading of the word "commercial" into s. 91(10); (2) the argument ignored the broad ambit of the word "navigation" and focused exclusively on the word "shipping"; (3) it ran counter to the principle that the federal power under s. 91(10) must be broadly interpreted; (4) it
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ran counter to the numerous cases in which it has been held that the federal power in respect of navigation and shipping does in fact extend to pleasure craft; and (5) it would mean that the jurisdiction conferred by s. 91(10) was simply a part of that conferred by s. 91(2).
The Constitutionality of ss. 647 and 649 of the Canada Shipping Act
The first question to arise is that of the "pith and substance" of ss. 647 and 649. If sections 647 and 649 are found to be legislation that is in pith and substance in relation to matters within Parliament's exclusive jurisdiction over navigation and shipping, the inquiry is at an end, for it would then be immaterial that they also affect matters of property and civil rights; see Proprietary Articles Trade Association v. Attorney-General for Canada, supra, at pp. 326-27; Munro v. National Capital Commission, 1966 CanLII 74 (S.C.C.), [1966] S.C.R. 663, at p. 671; General Motors of Canada Ltd. v. City National Leasing,1989 CanLII 133 (S.C.C.), [1989] 1 S.C.R. 641, at p. 667.
The common point of departure for both arguments, then, is the assumption that the tortious liability that is limited by ss. 647 and 649 is one that arises under provincial law, that is, the ordinary law of negligence. I have found it especially curious that the respondent should be willing to conduct the appeal on the basis of such an assumption, for it seems to me to run directly counter to a series of this Court's recent decisions. As was pointed out in the factum of the Attorney General of Canada, this Court has, in the cases of Tropwood A.G. v. Sivaco Wire & Nail Co., 1979 CanLII 217 (S.C.C.), [1979] 2 S.C.R. 157; Triglav v. Terrasses Jewellers Inc., 1983 CanLII 138 (S.C.C.), [1983] 1 S.C.R. 283; ITO- International Terminal Operators Ltd. v. Miida Electronics Inc.,1986 CanLII 91 (S.C.C.), [1986] 1 S.C.R. 752, and Q.N.S. Paper Co. v. Chartwell Shipping Ltd., 1989 CanLII 35 (S.C.C.), [1989] 2 S.C.R. 683, outlined the contours of a uniform body of federal maritime law, i.e., a body of substantive law applicable to maritime and admiralty matters that is subject to the exclusive legislative jurisdiction of Parliament. The following statement of McIntyre J., at p. 779, on behalf of the majority in ITO clearly demonstrates the relevance of this line of authority for the present appeal:
It is my view, as set out above, that Canadian maritime law is a body of federal law encompassing the common law principles of tort, contract and bailment. I am also of the opinion that Canadian maritime law is uniform throughout Canada, a view also expressed by Le Dain J. in the Court of Appeal who applied the common law principles of bailment to resolve Miida's claim against ITO. Canadian maritime law is that body of law defined in s. 2 of the Federal Court Act. That law was the maritime law of England as it has been incorporated into Canadian law and it is not the law of any province of Canada. [Emphasis added.]
In my view, the underlined portions of this statement of general principle, which I also had occasion to quote at p. 694 of my reasons in Chartwell, make it perfectly clear that tortious liability which arises in a maritime context is governed by a body of maritime law within the exclusive legislative jurisdiction of Parliament. This, by itself, is a sufficient basis on which to dismiss the present appeal. For as counsel for the appellant points out, if a right of action comes within provincial legislative jurisdiction, so too must a limitation of that right. The same reasoning must surely apply in respect of rights of action that come within the legislative jurisdiction of the federal government. This seems to me to follow from this Court's decision in Clark v. Canadian National Railway Co.,1988 CanLII 18 (S.C.C.), [1988] 2 S.C.R. 680, at pp. 709-10.
Quite apart from judicial authority, the very nature of the activities of navigation and shipping, at least as they are practised in this country, makes a uniform maritime law which encompasses navigable inland waterways a practical necessity. Much of the navigational and shipping activity that takes place on Canada's inland waterways is closely connected with that which takes place within the traditional geographic sphere of maritime law.
The inclusion of pleasure craft within the ambit of maritime law gains further support, by way of analogy, from the jurisprudence on the federal government's jurisdiction over aeronautics. Once Canadian waters are conceived of as a single navigational network, it becomes clear that the activity of navigation is very akin to the activity of aeronautics, and it seems to me that the factual similarity should lead to similar constitutional treatment. In Johannesson v. Municipality West St. Paul, 1951 CanLII 55 (S.C.C.), [1952] 1 S.C.R 292, this Court ruled that aeronautics was a distinct legislative matter that came within Parliament's power to make laws for the "peace, order and good government of Canada". This was because it was a matter that went "beyond local or provincial concern or interests and must from its inherent nature be the concern of the Dominion as a whole". As such, it satisfied the test espoused in Attorney-General for Ontario v. Canada Temperance Federation, [1946] A.C. 193, at p. 205. As pointed out by Professor Hogg, dicta in both Johannesson and the earlier Privy Council decision of In re Regulation and Control of Aeronautics in Canada (The Aeronautics Reference), [1932] A.C. 54, suggested that federal jurisdiction over aeronautics extended to intraprovincial as well as interprovincial aeronautics, and the Court of Appeal for British Columbia quickly ruled to this effect; see Jorgenson v. North Vancouver Magistrates reflex, (1959), 28 W.W.R. 265, and Hogg, op. cit., at p. 496. Professor Hogg goes on to suggest that "the most plausible reason for subjecting local airlines to the same regime as the interprovincial and international airlines is the fact that both kinds of carriers share the same airspace and ground facilities, so that their operations are necessarily closely integrated"; op. cit., at p. 496.
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In my view, this interpretation of the jurisprudence on federal aeronautics jurisdiction is directly applicable to the case at bar and the question it raises as to the scope of Parliament's jurisdiction over maritime law. What Professor Hogg says of local airlines and interprovincial and international airlines can, with appropriate modifications, equally be said of pleasure craft and commercial ships - they share the same waterways and (in many cases) the same port facilities "so that their operations are necessarily closely integrated". This integration points to the need for a uniform regulatory and legal regime in the case of navigation and shipping as much as it does in the case of aeronautics. It points, in other words, to the need for a broad reading of the relevant head of federal jurisdiction. I would think that if this need can be accommodated in respect of aeronautics, which comes within Parliament's narrowly interpreted power to legislate for the "peace order and good government" of Canada, it can surely be accommodated in respect of the activities that come within Parliament's jurisdiction over navigation and shipping since, as I pointed out earlier, that head of power has always been broadly interpreted.
The foregoing is a sufficient basis upon which to find ss. 647 and 649 of the Canada Shipping Act to be intra vires Parliament's jurisdiction over navigation and shipping.
It is worth noting that this juridical difference accords with an important difference in the degree to which boating or shipping and railways pose a threat to the safety of the broader community. The negligent conduct of those involved in navigation and shipping, or of those involved in navigation only, will usually pose a threat only to those who are also involved in those activities. In contrast, negligence in the operation of railways will often jeopardize the personal safety and property of those who live in the communities through which railway lines cross or who use highways intersected by railway lines, a fact the Court recognized in Clark, at p. 709, by characterizing s. 342(1) of the Railway Act as an "attempt to reframe for the benefit of railway undertakings the general legal environment of property and civil rights in which these undertakings function in common with other individuals and enterprises". This means that, while there is much sense and even justice in the maintenance of a separate regime of tort law for those who engage in navigation or navigation and shipping, such a regime would, in the case of railways, make little sense and be productive of great injustice, as the case of Clark itself amply demonstrates. These considerations put ss. 647 and 649 of the Canada Shipping Act and what was s. 342(1) of the Railway Act on totally different footings.
It is in the paragraph above where Justice La Forest finds a “judicial difference” between public safety in a comparison between boating and railways. He says: “The negligent conduct of those involved in navigation and shipping, or of those involved in navigation only, will usually pose a threat only to those who are also involved in those activities.” That is, Justice La Forest distinguishes between a personal safety issue and a public safety issue. It is that distinction which the Defendants would have the Court consider here.
18. The Calgary bylaw recognizes primacy of the Canada Shipping Act and it then purports to occupy territory left empty by the Constitutional rights holder … claiming some sort of squatters rights in an area of federal competence. TAB ”9” contains a copy of the federal government small vessel regulations:
Small Vessel Regulations
C.R.C., c. 1487
CANADA SHIPPING ACT, 2001
INTERPRETATION
2. The definitions in this section apply in these Regulations.
“Act” means the Canada Shipping Act. (Loi)
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“lifejacket” means a small vessel lifejacket, a standard lifejacket or a SOLAS type lifejacket. (gilet de sauvetage)
“manual propelling device” means a set of oars, a paddle or any other apparatus that can be used manually by a person to propel a vessel. (dispositif de propulsion manuelle)
“personal flotation device”, except in paragraph 16.08(b), means a buoyant life-saving apparatus other than a lifejacket, that is intended to be worn by a person and that meets the standards set out in section 1.3 of Schedule III. (vêtement de flottaison individuel)
“personal protection equipment” includes a lifejacket, lifebuoy, personal flotation device, buoyant heaving line, reboarding device and lifting harness. (équipement de protection individuelle)
“small vessel” means a vessel in respect of which these Regulations apply, as set out in section 3. (petit bâtiment)
“small vessel lifejacket” means a lifejacket that meets the standards set out in section 1 of Schedule III. (gilet de sauvetage pour petit bâtiment)
“SOLAS type lifejacket” means a lifejacket that that meets the standards set out in section 1.1 of Schedule III. (gilet de sauvetage SOLAS)
“standard lifejacket” means a lifejacket that meets the standards set out in section 1.1 of Schedule III. (gilet de sauvetage normalisé)
SOR/78-843, s. 1; SOR/80-443, s. 1; SOR/95-536, s. 4; SOR/99-54, s. 1; SOR/2000-311, s. 1; SOR/2002-171, s. 1; SOR/2003-40, s. 1; SOR/2005-29, s. 1; SOR/2005-326, s. 6(F).
PROHIBITION
4. (1) No person shall operate a small vessel unless
(a) it carries the type and quantity of personal protection equipment, boat safety equipment, distress equipment and navigation equipment that are required by these Regulations;
(b) the equipment is in good working order; and
(c) the equipment that is carried on the vessel as required by Part IV or V is properly stowed and is readily accessible for immediate use if it is needed.
(2) No owner or person entrusted by an owner with the care and operation of a pleasure craft shall allow another person to operate it unless
(a) it carries the type and quantity of equipment referred to in paragraph (1)(a); and
(b) the equipment is in good working order.
SOR/78-843, s. 2; SOR/80-443, s. 2; SOR/99-54, s. 1; SOR/2005-29, s. 3.
STANDARDS AND APPROVAL
5. (1) Any lifejacket, lifebuoy, personal flotation device, bailer, fire extinguisher or pyrotechnic distress signal referred to in Part II, IV or V that must be carried on a small vessel in accordance with these Regulations shall meet the applicable standards set out in Schedule III or any other standards that provide a level of safety that is equivalent to or higher than that of those standards.
(1.1) Life rafts referred to in Part IV or V that must be carried on a small vessel in accordance with these Regulations shall meet the standards set out in Coastal Life Raft, TP 11342, published by the Department of Transport, as amended from time to time, or any other standards that provide a level of safety that is equivalent to or higher than that of those standards.
6. (1) The Minister of Transport may approve a lifejacket, lifebuoy, pyrotechnic distress signal or life raft that is shown to meet the applicable standards referred to in subsection 5(1) or (1.1).
(2) The Minister of Fisheries and Oceans may approve a personal flotation device that is shown to meet the applicable standards referred to in subsection 5(1).
(3) Every personal flotation device that was approved by the Director of Ship Safety, Department of Transport before the coming into force of these Regulations and that bears a label indicating that it was approved by the Department of Transport, is deemed to be approved by the Minister of Fisheries and Oceans under subsection (2).
(4) Every lifejacket, personal flotation device other than a personal flotation device referred to in subsection (3), lifebuoy, pyrotechnic distress signal or life raft that has been approved in accordance with this section shall bear a stamp or label indicating that it has been so approved.
(5) Every buoyant apparatus that meets the applicable standards set out in the Life Saving Equipment Regulations and that is on a vessel that is subject to inspection shall bear, as the mark indicating that it
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complies with those standards, the name or permit number of the vessel, the name of the ship inspector who verified the compliance, and the date of the verification.
SOR/99-54, s. 1; SOR/2005-29, s. 5.
PART II
MINIMUM EQUIPMENT REQUIREMENTS FOR PLEASURE CRAFT
APPLICATION
16. (1) Subject to subsection (2), this Part applies in respect of every pleasure craft that is operated in Canada.
(2) This Part does not apply in respect of a pleasure craft that is operated in Canada if it is ordinarily kept in a country other than Canada and it complies with any licensing, registration and equipment requirements of that country.
SOR/99-54, s. 2.
PLEASURE CRAFT NOT OVER 6 M IN LENGTH
16.02 (1) Subject to subsections (6) to (9) and sections 16.2 and 16.3, every pleasure craft not over 6 m in length shall carry personal protection equipment, boat safety equipment, distress equipment and navigation equipment in accordance with subsections (2) to (5).
(2) Personal protection equipment shall consist of
(a) subject to section 16.08, one personal flotation device or lifejacket of appropriate size for each person on board; and
(b) one buoyant heaving line of not less than 15 m in length.
9) A pleasure craft not referred to in subsections (6) to (8) or section 16.2 that is not fitted with a motor is exempt from the requirement to carry distress equipment in accordance with subsection (4).
SOR/99-54, s. 2; SOR/2000-311, s. 2.
PART VI
SAFETY PRECAUTIONS
APPLICATION
36. This Part applies to small vessels that are operating in Canada.
SOR/99-54, s. 11.
Small Vessel Towing Activities
41. (1) Subject to subsection (2), no person shall operate a small vessel while towing any person on the water or in the air,
(a) unless there is on board a person other than the operator, who is keeping watch on the person being towed;
(b) unless there is seating space on the small vessel to accommodate the person being towed;
(c) if the person being towed is not wearing a personal flotation device or lifejacket, unless the small vessel carries the personal protection equipment that would be required under Part II if the person were on board; and
(d) during the period beginning one hour after sunset and ending at sunrise.
PART VII
POWERS OF ENFORCEMENT OFFICERS
44. In this Part, “enforcement officer” means a person designated under section 45.
SOR/99-54, s. 11.
45. The following persons are designated as enforcement officers for the purpose of these Regulations:
(a) a member of the Royal Canadian Mounted Police;
(a.1) a steamship inspector;
(b) a member of any harbour or river police force;
(c) a member of any provincial, county or municipal police force; and
(d) any person designated as an enforcement officer for the purposes of these Regulations by the Minister of Fisheries and Oceans.
SOR/99-54, s. 11; SOR/2002-171, s. 9.
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PART VII
POWERS OF ENFORCEMENT OFFICERS
44. In this Part, “enforcement officer” means a person designated under section 45.
SOR/99-54, s. 11.
45. The following persons are designated as enforcement officers for the purpose of these Regulations:
(a) a member of the Royal Canadian Mounted Police;
(a.1) a steamship inspector;
(b) a member of any harbour or river police force;
(c) a member of any provincial, county or municipal police force; and
(d) any person designated as an enforcement officer for the purposes of these Regulations by the Minister of Fisheries and Oceans.
SOR/99-54, s. 11; SOR/2002-171, s. 9.
46. An enforcement officer may, in order to verify and ensure compliance with these Regulations,
(a) go on board a vessel;
(b) examine a vessel and its equipment;
(c) require that the owner or the master or other person who is in charge or appears to be in charge of the vessel produce, forthwith,
(i) personal identification, and
(ii) any licence, document or plate required by these Regulations; and
(d) ask any pertinent questions of, and demand all reasonable assistance from, the owner or the master or other person who is in charge or appears to be in charge, of the vessel.
SOR/99-54, s. 11; SOR/2002-171, s. 10.
47. (1) Subject to subsection (2), an enforcement officer may, in order to ensure compliance with these Regulations or in the interests of public safety, direct or prohibit the movement of vessels or direct the operator of a vessel to stop it.
PART IX
OFFENCES AND PENALTIES
50. Every person who fails to comply with, or contravenes, any provision of Part I of these Regulations is liable on summary conviction to a fine of $250.
SOR/99-54, s. 11.
These regulations require that all pleasure vessels have a lifejacket for every person stored within the vessel. There is no requirement in Federal statue or regulation that the persons within or at or near the vessel constantly wear a personal floatation device …. The Calgary bylaw clearly trenching upon the head of an exclusive federal power forces persons to wear a life jacket while on the water or the bylaw punishes that person with a $500.00 fine if he/she does not.
19. Doctrine of latches - Taylor v. Alberta (Registrar, South Alberta Land Registration District), 2005 ABCA 200 (at TAB “11”) is a case concerning the Federal government exclusive jurisdiction over the approval of a condominium on airport lands. Although this is a divided court, the majority held, at para [65]:
[65] In the present case we are concerned with application of the doctrine of laches in the context of a case where the Court’s decision and the appropriate relief are dependant on the constitutional division of powers. Lamer C.J.C. in separate but concurring reasons in Ontario Hydro v. Ontario(Labour Relations Board) (1993), 107 D.L.R. (4th) 457, found at 474 that the doctrine of laches does not apply in a constitutional division of powers case:
There is no doctrine of laches in constitutional division of powers doctrine; one level of government’s failure to exercise its jurisdiction, or failure to intervene when another level of government exercises that jurisdiction,
cannot be determinative of the constitutional analysis. In this respect, I would adopt the statement of Reed J. in Alberta Government Telephones v. Canada (Canadian Radio-television and Telecommunications Commission)
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(1984),15 D.L.R. (4th) 515 at p. 538, [1985] 2 F.C. 472, 29 A.C.W. S. (2d) 138 (T.D.):
The fact that constitutional jurisdiction remains unexercised for long periods of time or is improperly exercised for a long period of time, however, does not mean that there is thereby
created some sort of constitutional squatters rights; refer A.G.Manitoba v. Forest, (1979), 101 D.L.R. (3d) 385, 49 C.C.C. (2d) 353, [1979] 2 S.C.R. 1032, for a case in which
unconstitutional action had remained unchallenged for 90 years.
The Honourable Madam Justice Hunt gives the dissenting opinion in the above case and the Defendant’s rely upon her analysis in the present case where there is a clear cut distinction between navigation on a waterway and federal jurisdiction and airport lands.
20. Attached at TAB “12” is a copy of the federal “Special-purpose Vessels Regulations, SOR/2008-121” These regulations are issued respecting the actual wearing of a life jacket while engaged in the activity of recreational navigation in areas where two requirements for the regulations to apply must exist:
1) the waters must be class 3 or above waters;
2) the persons engaged in the activity of navigating those waters are involved in a commercial transaction.
The Federal government otherwise does not require that any person attendant in a vessel engaged in the navigation of a waterway must be wearing a life jacket, only that they must have such a device available to them.
21. Attached at TAB “13” is Ordon v. Grail – Ten Years Later, a paper given by Mr. Andrew Mayer,
then an Associate lawyer with the Vancouver law firm of Bernard & Partners. The paper outlines, in a far more professional way then the present writer can do, the state of the law and the Defendant’s adopt the test outlined on page 3 of the document as the proper test to be applied in the instant case.
22. At TAB “10” is R. v. Kupchanko 2002 BCCA 63. This is the most recent case which is parallel to the pleadings of the Defendants. Mr. Kupchanko violated an Order issued under a BC Provincial enabling law by operating a boat with horsepower in excess of what was allowed by that order. He did not contest the facts of the case but he raised a Constitutional Question about the validity of the Order (and the provinces law) on the basis that it regulated in an area of law exclusively within the jurisdiction of the
25
Federal Crown under s.91(10), of the Act: that is to say - navigation. The below is taken form the Judgment:
Written Reasons by: Concurred in by:
The Honourable Mr. Justice Esson The Honourable Mr. Justice Donald
The Honourable Madam Justice Saunders
[14] The essence of the submissions by the Province is that, while it recognizes that the paramount power to regulate with respect to the horsepower of vessels on navigable waters is conferred by s. 91(10) upon Parliament, the Province may validly legislate with respect to a specific aspect unless and until the Federal Government enacts legislation which conflicts with a provincial enactment. ....
The City of Calgary, in the impugned bylaw, seems to be under the same sort of impression, in the bylaw Calgary says:
AND WHEREAS the Small Vessel Regulations, SOR/69-97 established under the Canada Shopping Act, Revised Statutes of Canada, 1970, Chapter S-9 in the provisions of Part II, REQUIREMENTS FOR PLEASURE CRAFT, by Section 16 thereof except craft propelled by oars or paddles form the application of Part II aforesaid;
AND WHEREAS it is expedient to provide for the safety of persons to which the said Regulations do not apply on all natural or made-made rivers, streams, brooks, canals, lakes, reservoirs or other waterways of watercourses which are contained within the boundaries of the City of Calgary;
NOW, THEREFORE, THE COUNCIL OF THE CITY OF CALGARY ENACTS AS FOLLOWS:
The City of Calgary acknowledges the inherent power of the Federal Crown in the area, but they really say that because the Federal Crown is not regulating an area of law exclusive to the Federal Crown, why by god, we’ll do it. In the Alberta Court of Appeal in Taylor v. Alberta (Registrar, South Alberta Land Registration District), 2005 ABCA 200 (at TAB “11”) the court said:
There is no doctrine of laches in constitutional division of powers doctrine; one level of government’s failure to exercise its jurisdiction, or failure to intervene when another level of government exercises that jurisdiction,
cannot be determinative of the constitutional analysis. In this respect, I would adopt the statement of Reed J. in Alberta Government Telephones v. Canada (Canadian Radio-television and Telecommunications Commission)
(1984),15 D.L.R. (4th) 515 at p. 538, [1985] 2 F.C. 472, 29 A.C.W. S. (2d) 138 (T.D.):
The fact that constitutional jurisdiction remains unexercised for long periods of time or is improperly exercised for a long period of time, however, does not mean that there is thereby
created some sort of constitutional squatters rights; refer A.G.Manitoba v. Forest, (1979), 101 D.L.R. (3d) 385, 49 C.C.C. (2d) 353, [1979] 2 S.C.R. 1032, for a case in which
unconstitutional action had remained unchallenged for 90 years.
Getting back to Kupchanko, the Honourable Mr, Justice Esson, as a member of a panel in the BC Court of Appeal, had previously ruled against a Constitutional Question in the case of Windermere Watersport
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Inc. v. Invermere 1989 CanLII 2748 (BC C.A.), (1989), 37 B.C.L.R. (2d) 112, 59 D.L.R. (4th) 285 in which
essentially the same question was asked as was being addressed in Kupchanko and now here in LaTouche. Mr. Justice Essen spends some time explaining why he found no constitutional violation in that case and what cases he relied upon to do so. He says at paragraph [21]:
[21] My reasons deal in some detail with the issues as argued before us, which differed considerably from those identified by Lambert J.A. I summarized positions advanced by counsel for the Province at p. 118:
1. Parliament has no power in the exercise of its jurisdiction over navigation and shipping to regulate the operation of these craft in order to prevent them from causing a nuisance by noise or;
2. If it has such power, it has not exercised it and therefore there is no actual conflict between the resolution and the federal power. The provincial exercise of its power to regulate a nuisance is therefore effective.
Which such thought was rejected in the Alberta Court of Appeal in the above case of Taylor v. Alberta (Registrar et al (at Tab “11”, my pages 23-24) and which thought process, by the end of Kupchanko, Mr. Justice Esson and the full court panel also reject the concept that if you have something and you are not using it or doing it, someone else can. In effect and in substance, Mr. Justice Esson reverses himself from Windermere in Kupchanko. At paragraph [25] Justice Esson (talking about Windermere Watersport) expressed his final conclusion thus:
[25] …….
I expressed my final conclusion thus at p. 126:
The unexercised federal authority gives leeway to permit the exercise of provincial authority in relation to the question whether the respondent can operate jet skis on Lake Windermere, an undertaking which is purely local.
and then at paragraph [27]:
[27] My analysis of the doctrine, I concede, demonstrated a limited grasp of the subject. As Mr. Frankel has been pleased to point out, I not only referred to "interjurisdictional immunity" as a "mystifying term", but I also misdescribed the doctrine as "intergovernmental immunity". More seriously, as Mr. Frankel has been happy to point out, I based my discussion of the doctrine on Professor Hogg's 1985 work without recognizing that a year earlier the Supreme Court of Canada, in what is now the leading decision on the subject, had gone to some pains to demolish the views expressed in 1985 by Professor Hogg. Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), 1988 CanLII 81 (S.C.C.), [1988] 1 S.C.R. 749, 51 D.L.R. (4th) 161, is actually a trilogy of cases, two from Quebec and one from British Columbia.
27
Those cases arose in the area of federal undertakings. But the reasons of Beetz J., for the court, make clear that the doctrine can apply to any head of federal power, and that the test for excluding a provincial law is merely whether it affected a "vital part" of the federal power rather than the former test of sterilization or mutilation.
[29] It is the second paragraph, dealing with concurrent jurisdiction, which applies most directly to the issues in this case. The Supreme Court held in effect that, in order to avoid intolerable conflict in the day-to-day application of regulations, no concurrent provincial jurisdiction over a vital part of a federal undertaking could be tolerated. That demolishes the view that some room exists for provincial legislation in circumstances where there might be some advantage to a less standardized, a more local, approach to regulations. The firmness with which that view was rejected appears from this passage in the reasons of Beetz J. at 843:
That leaves the "policy" argument, according to which it would always be open to Parliament to protect federal undertakings against provincial statutes by an exercise of its so-called ancillary power and the application of the paramountcy of federal legislation.
I must say that I find very little merit in such an argument, both in general terms and when invoked in the particular field of occupational health and safety.
It is an argument which relies on a spirit of contradiction between systems of regulation, investigation, inspection and remedial notices which are increasingly complex, specialized and, perhaps inevitably, highly detailed. A division of jurisdiction in this area is likely to be a source of uncertainty and endless disputes in which the courts will be called on to decide whether a conflict exists between the most trivial federal and provincial regulations, such as those specifying the thickness or colour of safety boots or hard hats.
[The reference to safety boots and hard hats arises from the facts of the British Columbia case in the Bell Canada trilogy, i.e. Alltrans Express Ltd. v. Workers' Compensation Board of British Columbia, 1988 CanLII 83 (S.C.C.), [1988] 1 S.C.R. 897. In that case, the issue was whether a provincial W.C.B. regulation requiring safety boots where the federal regulation tolerated running shoes, could be enforced against a federally regulated trucking company.]
[39] After noting at p. 55 that the paramountcy of the public right of navigation is such that it can only be modified or extinguished by legislation, La Forest J. went on to state at p. 56:
What is more, the provinces are constitutional ly incapable of enacting legislation authorizing an interference with navigation, since s. 91(10) of the Constitution Act, 1867 gives Parliament exclusive jurisdiction to legislate respecting navigation. That was made clear by this Court in Queddy River Driving Boom Co. v. Davidson (1883), 10 S.C.R. 222, where an injunction was sought to restrain the defendant company from erecting piers and booms in the Queddy River in New Brunswick. The defendant relied on its constituent legislation, passed by the provincial legislature, which permitted a certain degree of interference with navigation. The only issue before the Court was the authority of the legislature to pass the Act incorporating the defendant. Ritchie C.J. concluded, at p. 232:
... the legal question in this case, which is, to which legislative power, that of the Dominion Parliament or the Assembly of New Brunswick, belongs the right to authorize the obstruction by piers or booms of a public tidal and navigable river, and thereby injuriously interfere with and abridge the public right of navigation in such tidal navigable waters. It is not disputed that this legislation interfered with the navigation of the river ...
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I think there can be no doubt that the legislative control of navigable waters, such as are in question in this case, belongs exclusively to the Dominion Parliament. Everything connected with navigation and shipping seems to have been carefully confided to the Dominion Parliament, by the B.N.A. Act.
[Emphasis added]
[41] In light of these authorities, all of which are binding upon us, I conclude that inWindermere Watersport I erred in holding that, on the assumption that the resolution of council was legislation on a matter of shipping and navigation, it was within the constitutional authority of the Province. My final comment with respect to Windermere Watersport is that I see no reason to disagree with Mr. Frankel's submission that the case, for the reasons of Lambert J.A., was correctly decided.
[42] On the question whether the impugned ten horsepower order infringes upon the core of federal jurisdiction under s. 91(10), I conclude that it does, and that the intervener and appellant are right in saying that the order must be read down to exclude its application to conveyances operating in navigable waters. In relation to that question, I now agree with the statement of Bernier J.A., for the court, in St-Denis de Brompton (Municipality) v. Filteau reflex, (1986), 59 D.L.R. (4th) 84 (Que. C.A.) at 91, that "navigation rights can be abrogated or regulated only by the federal government". That case held a provincial statute authorizing a municipality to pass bylaws prohibiting or regulating the use of motorboats on lakes of a certain size to be ultra vires. In Windermere Watersport, being of the view that the unexercised federal authority gave leeway for the exercise of provincial authority, I declined to apply that decision, which was distinguishable on other grounds. Having regard to the later decisions of the Supreme Court, I now see no reason not to accept St-Denis de Brompton as having been correctly decided.
THEREFORE THE DEFENDANT’S PLEAD in the instant case that the City of Calgary cannot draw Constitutional authority from Canada (the Canada Shipping Act) by the means of a Provincial statue (the Municipal Government Act) to make a Bylaw (9084) in an area of law concerning the conduct of persons engaged in the recreational use of an inland waterway.
THE DEFENDANT’S THEREFORE PRAY THAT the Court find that s.60(1) of the MGA is constitutionally inconsistent with the powers of the Province of Alberta and that the City of Calgary Bylaw Number 9084 (Water Safety Bylaw) is ultra vires the powers of the municipal government of the City of Calgary AND THE DEFENDANT’S FURTHER PRAY that the Court strike down both of the above.
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PART 3
RELIEF REQUESTED
22. The Defendant’s seek a Declaration and an Order:
1. the Defendants seek a Declaration that the “Water Safety Bylaw” and s.60(1) of the Act (MGA) are ultra vies the City of Calgary and the Province of Alberta respectively;
2. costs of this application;
3. such further and other relief as this Honourable Court deems appropriate.
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
.
Per: __________________________________________
Lawrence A. Oshanek, Agent for the Defendants
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INDEX TO TABS AND AUTORITIES
TAB #
1. Photo copies of the Violation Tickets (x 2)
Copy of Trial Schedule
Letter from Federal Crow (x 2)
2. Bylaw Number 9084
3. Notice of Constitutional Question (x 2)
Defendant Admission of Facts (x 2)
4. The Constitution Act, 1867
5. R. v. Morgentaler, [1993] 1 S.C.R. 462
Ontario (Human Rights Commission) v. National Dental Examining Board of Canada, [1991] 3 S.C.R. 121
R. v. Hauser, [1979] 1 S.C.R. 984
6. Calgary Herald Page B8 August 28, 2009
6 pages of Fisheries and Oceans Canada Investigative Results
7. CANADA SHIPPING ACT, 2001, S.C.,2001, c. 26
Navigable Waterways Act, Chapter N-22, R.S., c. N-19, s.1
8. International Minerals & Chemicals Corp. (Canada) Ltd. v. Canada (Minister of Transport), [1993] 1 F.C. 559
` Federal Courts Act. R.S., 1985, c. F-7, s. 1; 2002, c. 8, s. 14.
Canada Gazette: Minor Works and Waters (Navigable Waters Protection Act) Order
9. Whitbread v. Walley, [1990] 3 S.C.R. 1273
Small Vessel Regulations C.R.C., c. 1487 CANADA SHIPPING ACT, 2001
10. R. v. Kupchanko 2002 BCCA 63
11. Taylor v. Alberta (Registrar, South Alberta Land Registration District), 2005 ABCA 200
12. Special-purpose Vessels Regulations, SOR/2008-121
13. Ordon v. Grail – Ten Years Later
Hard to read in this format .... but an important case to people here.
I welcome comments.
Lawrence
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Being the good lawyer you are though, I'm sure you'll fleece him for all he's worth.
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