T-1217-80
Canadians for the Abolition of the Seal Hunt and
Tina E. Harrison (Applicants)
v.
Minister of Fisheries and the Environment
(Respondent)
Trial Division, Walsh J.—Vancouver, March 31
and April 9, 1980.
Prerogative writs — Mandamus — Motion for a writ of
mandamus against respondent directing him to enforce Seal
Protection Regulations — Whether or not applicants have
locus standi to bring the application — Whether or not the
Court can, by mandamus, order the Minister to enforce the law
and Regulations — Whether or not the Court should appoint
an independent committee of experts to visit the sealing areas
and report on their findings to the Court — Motion dismissed
— Fisheries Act, R.S.C. 1970, c. F-14, ss. 34, 36 — Seal
Protection Regulations, C.R.C. 1978, Vol. VII, c. 833, ss. 16,
17(1),(2),(3).
Applicants seek a writ of mandamus directing respondent to
enforce the Seal Protection Regulations. The issues are wheth
er or not applicants have locus standi to bring the application;
whether or not the Court can, by mandamus, order the Minis
ter to enforce the law and Regulations; and whether or not the
Court should appoint an independent committee of experts to
visit the sealing areas and report on their findings to the Court.
Held, the motion is dismissed. The applicants have no locus
standi to bring the application. Applicant, Canadians for Aboli
tion of the Seal Hunt, has no corporate or legal existence.
Applicant Harrison is a citizen co-ordinator of the co-applicant.
The Court cannot by mandamus order the Minister to enforce
the law and Regulations. His obligation to do so is self-evident
and there is no indication that he is refusing to carry out this
obligation. A law or regulation should be enforced and little is
added to this by mandamus unless there is a complete refusal
to enforce it or them. What constitutes enforcement is a matter
of degree. Complete enforcement should always be sought, but
if this is impossible, it does not follow that the law or regula
tions should be repealed. Procedure in our courts is based on
the adversary system. The fact that one party encounters
difficulty in obtaining the required evidence or that the oppos
ing party prevents it from obtaining same does not justify the
Court in attempting to obtain the evidence itself. The Court
cannot conduct independent investigations in an attempt to
establish the applicants' case.
Thorson v. The Attorney General of Canada [1975] 1
S.C.R. 138, distinguished. Nova Scotia Board of Censors
v. McNeil [1976] 2 S.C.R. 265, distinguished. Kiist v.
Canadian Pacific Railway Co. [1980] 2 F.C. 650, distin
guished. Corporation of the District of North Vancouver v.
National Harbours Board, not reported, T-1772-78, dis
tinguished. Rothmans of Pall Mall Canada Ltd. v. Minis
ter of National Revenue [1976] 1 F.C. 314, referred to.
Karavos v. Toronto and Gillies [1948] 3 D.L.R. 294,
referred to. R. v. Metropolitan Police Commissioner, Ex
parte Blackburn [1968] 1 All E.R. 763, referred to.
MOTION.
COUNSEL:
R. Chouinard for applicants.
G. Donegan for respondent.
SOLICITORS:
Deverell, Harrop, Vancouver, for applicants.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
WALSH J.: Applicants seek the issue of a writ of
mandamus against respondent directing him to
carry out his statutory duty to exercise his jurisdic
tion pursuant to section 34 and section 36 of the
Fisheries Act, R.S.C. 1970, c. F-14 and to carry
out such other statutory duties as the Court may
direct in relation to anticipated breaches of the
Seal Protection Regulations, C.R.C. 1978, Vol.
VII, c. 833, sections 16 and 17, occurring in the
Front Area and the Gulf Area as defined in the
Regulations.
Section 34 of the Act is merely the section
providing for the making of regulations and sec
tion 36 provides the authority for fishery officers
to arrest without warrant anyone believed on
reasonable and probable grounds to have commit
ted an offence against the Act or Regulations.
The sections of the Regulations in question read
as follows:
16. (1) No person shall hook, commence to skin, bleed, slash
or make any incision on a seal with a knife or any implement
until the seal is dead.
(2) For the purposes of subsection (1), a seal is dead when
the seal
(a) is glassy eyed;
(b) has a staring appearance;
(c) has no blinking reflex when the eye is touched; and
(d) is in a relaxed condition.
(3) When a seal is dead for the purposes of subsection (1),
the seal must be bled immediately by cutting the main blood
vessels to the front flippers.
17. No person shall kill adult harp seals in whelping or
breeding patches.
It is common ground that extensive protests
have been made by various groups for several
years seeking the abolition of the seal hunt carried
out in the area of the Magdalen Islands and
Newfoundland, including much adverse publicity
and even active interference with it for several
years on the grounds that the manner in which it is
carried out and the seals are killed and skinned is
excessively cruel. The matter became a political
issue involving strong pressure both by Canadian
nationals and foreign groups seeking its outright
abolition, whereas the hunters, part of whose liveli
hood depends on its continued existence, brought
pressure to prevent its being interfered with. The
authorities involved had to strike a fine balance
between outright abolition which would have been
highly prejudicial to those involved in it, and on
the other hand the probability that no regulations
could be made or fully enforced which would
eliminate all instances of cruelty. The result was
the strict Regulations set out above intended to
eliminate in so far as this is possible, any cruelty
performed on a live seal.
Applicants' contention is that these Regulations
are not being strictly enforced (as in fact they
cannot be enforced 100% in practice) and they
now seek to accomplish by action in the Courts
what they were unable to attain by political
representations.
The first issue which was raised and which
appears to be fatal to applicants in the present
proceedings is that they have no locus standi
before the Court to bring them. Applicant Canadi-
ans for Abolition of the Seal Hunt has no corpo
rate or legal existence being merely an organiza
tion of Canadians opposed to the hunt, bringing
these proceedings rather than Greenpeace Founda
tion or the New York based Fund for Animals.
Applicant Tina E. Harrison is a citizen, co-ordina-
tor of the co-applicant, who in 1979 attended the
hunt in the Magdalen Islands area as co-ordinator
of the Fund for Animals.
The right of individuals to bring proceedings
seeking the issue of a prerogative writ such as
mandamus, or even a declaratory judgment, when
they are not personally affected (other than of
course in their sensibilities) by the law or Regula
tions complained of, has given rise to considerable
jurisprudence. In the Supreme Court case of
Thorson v. The Attorney General of Canada
[1975] 1 S.C.R. 138 in which the plaintiff as a
citizen was permitted to challenge the constitution
ality of the Official Languages Act, R.S.C. 1970,
c. O-2, Chief Justice Laskin stated at page 145:
The substantive issue raised by the plaintiff's action is a
justiciable one; and, prima facie, it would be strange and,
indeed, alarming, if there was no way in which a question of
alleged excess of legislative power, a matter traditionally within
the scope of the judicial process, could be made the subject of
adjudication. [Emphasis mine.]
At pages 147-148 he states:
Where regulatory legislation is the object of a claim of
invalidity, being legislation which puts certain persons, or cer
tain activities theretofore free of restraint, under a compulsory
scheme to which such persons must adhere on pain of a penalty
or a prohibitory order or nullification of a transaction in breach
of the scheme, they may properly claim to be aggrieved or to
have a tenable ground upon which to challenge the validity of
the legislation. In such a situation, a mere taxpayer or other
member of the public not directly affected by the legislation
would have no standing to impugn it. [Emphasis mine.]
At page 150 the judgment states:
It is on this basis that the Courts have said that a private
person who seeks relief from what is a nuisance to the public
must show that he has a particular interest or will suffer an
injury peculiar to himself if he would sue to enjoin it.
In the present case there is no attack on the
constitutionality of the law nor is it one of the seal
hunters (a person perhaps aggrieved by the Regu
lations) who is making the attack, but merely
persons not directly affected who are taking up the
cudgels for other citizens offended by what they
consider to be unnecessary cruelty to the seals.
In the case of The Nova Scotia Board of Cen
sors v. McNeil [1976] 2 S.C.R. 265, the Supreme
Court went somewhat further eliminating a rigid
distinction between a regulatory statute and a
declaratory one. At page 269, Chief Justice Laskin
stated:
Thus, the fact that certain persons or classes of persons, or
certain activities in which persons engage may be subjected to
compulsory regulation on pain of a penalty or other sanction
does not always mean that the pith and substance of the
legislation is to be determined only in that context, so as to
make those regulated the only persons with a real stake in the
validity of the legislation.
Here again, however, it was the validity of
legislation which was in issue and moreover
McNeil, as a member of the public, had a direct
interest in the power given to the Board to deter-
mine what members of the public might view in
theatres. At page 271, the judgment states:
The challenged legislation does not appear to me to be legisla
tion directed only to the regulation of operators and film
distributors. It strikes at the members of the public in one of its
central aspects.
In the case of Kiist v. Canadian Pacific Railway
Company [ 1980] 2 F.C. 650, my brother Gibson J.
had occasion to examine the question of locus
standi. At page 663 in deciding who might be
considered as an "aggrieved person" within the
meaning of section 262(7) of the Railway Act,
R.S.C. 1970, c. R-2, he stated:
A person usually is not considered "aggrieved" within that
subsection (as is also the case where similar words are
employed in other statutes) unless he himself can establish he
suffered particular loss and not merely because he has a
grievance. (See Ex parte Sidebotham. In re Sidebotham
((1880) 14 Ch.D. 458 at p. 465).) This rigid test of locus standi
has been departed from in certain situations. In Regina v.
Paddington Valuation Officer, Ex parte Peachey Property
Corporation Ltd. ([1966] 1 Q.B. 380) the plaintiffs were held
to be "person [s] aggrieved" so as to be entitled to certiorari or
mandamus even though they could not establish that they had
suffered any particular loss. Lord Denning at page 401 said:
"The court would not listen, of course, to a mere busybody who
was interfering in things which did not concern him. But it will
listen to anyone whose interests are affected by what has been
done. ... So here it will listen to any ratepayer who complains
that the list is invalid". (See also Arsenal Football Club Ltd. v.
Ende ([1977] 2 W.L.R. 974 (H.L.)).)
With reference to the quotation from Lord Den-
ning, noted for his liberal and innovative views, I
am not suggesting that the plaintiffs here are
"mere busybodies" but it does appear that they
have no such direct interest as that of a ratepayer
seeking to have a listclared invalid.
Reference might also be made to the case of
Rothmans of Pall Mall Canada Limited v. Minis
ter of National Revenue [1976] 1 F.C. 314 in
which my brother Heald J. stated at page 318:
A ground of objection to the Court's jurisdiction, which is, in
my view, fatal to the applicants' motion, is that they have not
established a status or locus standi entitling them to bring the
present motion. In order to establish such status, they would
have to show that they are aggrieved parties and that they have
a proprietary interest in the actions of the Minister and his
officials.
In discussing the Thorson case (supra) he states
at page 320:
However, the majority decision seems to be restricted so as to
not apply to legislation that is regulatory in nature but applies
to legislation that is declaratory and directory, creating no
offences and imposing no penalties.
Applicants rely on an unreported judgment of
my brother, Collier J. in T-1772-78, Corporation
of the District of North Vancouver v. National
Harbours Board, a judgment dated July 27, 1978,
in which he relied on the Thorson and McNeil
cases (supra) in finding that the applicants had
status to bring the proceedings. In that case, how
ever, the applicants were clearly suffering personal
prejudice by the failure of respondent to enforce
its statute and by-laws relating to illegally moored
floating homes, causing a hazard to applicants,
residents in the area. At page 9 Collier J. states:
The enforcement of the statute and the by-laws is just as much
part of its public duty, as is the function of administering,
managing and controlling. It cannot properly perform the latter
obligations unless it takes steps, where there have been
breaches, to enforce the statute and by-laws.
and again at page 11:
In summary, the applicants have established a clear legal
right to the enforcement of the duty, a non-discretionary duty
on the part of the Board, a demand for performance of it, and
what amounts, in law, to a refusal.
Clearly that case is distinguishable on its facts.
I conclude therefore that applicants have no
locus standi to bring the present application.
While that finding would dispose of the matter I
will deal briefly with the other issues raised, in the
event that my finding on this question should not
be sustained.
It is not necessary to go in any detail into the
facts of this case. Most of the affidavits submitted
by applicants consist of hearsay reports (accom-
panied in some instances by transcripts) of what
some expert observer would say if he were present
to testify, in which event he could be cross-exam
ined. While applicants suggested an adjournment
to bring these witnesses from Switzerland, Eng-
land and the United States, I have reviewed all the
affidavits of both applicants and respondent and
conclude that no useful purpose would be served
by so doing. The issue of whether the seal hunt
was conducted in a cruel manner in 1976 and 1977
and thereafter in 1978 and 1979, without compli
ance with the Regulations promulgated in 1978 is
not an issue before the Court. There is certainly
sufficient evidence to indicate that the Regulations
are not infrequently infringed. It is not surprising
that with the number of seal hunters involved and
the areas in question (some 420,000 square miles),
it would be impossible to police it completely so as
to eliminate all instances of non-compliance with
the Regulations and in particular sections 16 and
17 (supra).
Some of the hunters will, if not being observed,
undoubtedly perform the killing and skinning in
the manner they find fastest and most convenient
as they did in the past before the Regulations, with
wanton disregard for the cruelty involved. Appli
cants even suggest, and there is some support for it
in the affidavits, that some of the fishery officers
will fail to take action on infractions even when
called to their attention. It was suggested in argu
ment that many of them come from the same
background and villages as the hunters, and are
reluctant to lay charges except for the most fla
grant violations. If this is so, this is of course
wrong, but I fail to see how this can give right to a
mandamus against the respondent in the absence
of evidence of a complete and absolute refusal by
him to take any action to enforce the Regulations
(as in the Corporation of the District of North
Vancouver v. National Harbours Board case,
supra). On the contrary the evidence indicates that
this year courses on the Regulations were given
before the seal hunt to hunters from the Magdalen
Islands, attended by over 800, that there are 83
fishery officers employed in the Gulf and Front
Areas during the hunt to supervise it, and that in
1979 action was taken in connection with 44 viola
tions. In fairness to applicants however, it must be
pointed out that 20 of these charges were laid
against "observers" interfering with the hunt and
only 19 resulted in licence suspensions of which
only 2 were for cutting a seal before it is dead.
Apparently for seal hunters licence suspensions
were used rather than charges (which may of
course be a more severe penalty).
Certainly the number of infractions dealt with
appears to be relatively small considering the
number of infractions which it is reasonable to
assume are committed, and in view of the number
of fishery officers employed in enforcement of the
Regulations.
It cannot be found, however, that the respondent
is deliberately adopting a policy of non-enforce
ment or turning a "blind eye" to infractions of the
Regulations, such as would justify the issue of a
mandamus ordering him to enforce them.
A serious question arises as to whether a court
can or should issue a writ of mandamus, calling
upon the person to whom it is addressed to enforce
the law. It goes without saying that a law or
regulation should be enforced and little is added to
this by mandamus unless there is a complete refus
al to enforce it or them. Can an interested citizen
for example, upon noting that many cars are
parked without being ticketed at parking meters,
after the time has expired, obtain a mandamus
directing the police to enforce the by-law? As a
taxpayer he has perhaps a personal interest arising
from the loss of revenue. Certainly by observation,
it would be simple to establish the frequent com
mission of the offence. The same might be said for
vehicles infringing the speed laws. Although they
endanger the lives of pedestrians and other motor
ists, many such infractions undoubtedly occur,
some in full view of the police, without charges
being laid. In either case would a mandamus lie
calling upon the police to enforce the law, when in
fact they can establish from the charges laid that it
is in fact being enforced? I do not think so. It
certainly cannot be suggested that infractions of
any law or regulation should be tolerated or con
doned but what constitutes enforcement is a
matter of degree. Some laws or regulations are by
their nature more difficult to enforce than others.
Complete enforcement should always be sought,
but if this is impossible, it does not follow that the
law or regulations shoula be repealed. What appli
cants in this case really seek to establish is that the
seal hunt Regulations are not and cannot be com
pletely enforced, and that as a result it is not the
repeal of the Regulations, permitting an
unregulated hunt which they desire, but rather the
abolition of the hunt itself, which is a political not
a legal issue.
In the case of Karavos v. Toronto and Gillies in
the Ontario Court of Appeal [1948] 3 D.L.R. 294,
Laidlaw J.A. states in relation to mandamus at
page 297:
The object and purpose of it is to supply the want of other legal
remedies. It is appropriate to overcome the inaction or miscon
duct of persons charged with the performance of duties of a
public nature.
and in summarizing the principles on which it
must be based states, inter alia:
There must be a demand and refusal to perform the act which
it is sought to coerce by legal remedy ....
In the case of R. v. Metropolitan Police Com
missioner, Ex parte Blackburn [ 1968] 1 All E.R.
763, Lord Denning M.R. states at page 769 in
connection with the duties of the Commissioner of
Police relating to law enforcement:
It must be for him to decide on the disposition of his force and
the concentration of his resources on any particular crime or
area. No court can or should give him direction on such a
matter. He can also make policy decisions and give effect to
them, as, for instance, was often done when prosecutions were
not brought for attempted suicide; but there are some policy
decisions with which, I think, the courts in a case can, if
necessary, interfere. Suppose a chief constable were to issue a
directive to his men that no person should be prosecuted for
stealing any goods less than £100 in value. I should have
thought that the court could countermand it. He would be
failing in his duty to enforce the law.
At page 770 he states:
The law must be sensibly interpreted so as to give effect to the
intentions of Parliament; and the police must see that it is
enforced. The rule of law must prevail.
In the same case at page 777, Edmund Davies L.J.
states:
... I agree with them in holding that the law enforcement
officers of this country certainly owe a legal duty to the public
to perform those functions which are the raison d'être of their
existence. How and by whom that duty can be enforced is
another matter, and it may be that a private citizen, such as the
applicant, having no special or peculiar interest in the due
discharge of the duty under consideration, has himself no legal
right to enforce it. That is widely different, however, from
holding that no duty exists, enforceable either by a relator
action or in some other manner which may hereafter have to be
determined.
and again on the same page:
I began by saying that these are important proceedings. They
have served useful public purposes (a) in highlighting the very
real anxiety which many responsible citizens manifestly enter
tain as to the adequacy of the steps hitherto taken to extermi
nate a shocking and growing cancer in the body politic; and (b)
in clarifying the duty of the police in relation to law enforce
ment generally. Accordingly, while, for the reasons given by my
lords, there must be a formal dismissal of this appeal, it may
well be that the applicant and his supporters will nevertheless
feel as they leave this court today that in truth theirs has been
the victory.
Perhaps the same could be said about the present
case.
Applicants suggest that the Regulations are
mere tokenism, giving the appearance of eliminat
ing cruelty to the seals during the hunt, but, being
largely unenforceable, do not have this effect and
that the cruelty is still extensive. Even if it were
admitted that this is so, here again we enter into
the area of a delicate political decision as to what
extent of cruelty is inevitable and acceptable
despite strict Regulations, and even if same are
rigidly enforced, when weighed against the eco
nomic benefits to the seal hunters. This is not an
area for interference by the courts.
While I have found that some instances of cruel
ty undoubtedly exist, the extent of it at this time is
highly debatable and indeterminable. The
instances referred to in applicants' affidavits took
place in some cases in 1976 and 1977, before the
1978 Regulations were promulgated. Even
instances in 1979 give only some indication of the
likelihood of it continuing but do not establish
what the situation is in 1980.
Applicants attack the credibility of respondent's
witnesses and experts, especially Tom Hughes, the
Executive Vice-President of the Ontario Humane
Society. He, together with Dr. Harry C. Rowsell,
Executive Director of the Canadian Council on
Animal Care, a professor in the Department of
Pathology at the University of Ottawa, Professor
Keith Ronald, Dean of the College of Biological
Sciences of the University of Guelph, and two
other observers from the Ontario Humane Society,
all attended this year's harp seal hunt. The first
three are members of the Minister's Committee on
Seals and Sealing.
For applicants we have the statements (although
merely hearsay) of Gerry Owen, a law enforce
ment officer of Texas with a degree in animal
sciences, who testifies frequently as an expert in
American courts in prosecutions of acts of cruelty
against animals, who assisted in some autopsies on
seals performed by Dr. Bernard Wedsell of
Geneva, Switzerland; of Dr. William Jordan, a
veterinary surgeon and wildlife officer for the
Royal Society for Prevention of Cruelty to Ani
mals in England, who attacks Tom Hughes' credi
bility, as well as that of Dr. Harry Rowsell of the
Committee on Seals and Sealing, as well as other
eye witnesses. Respondent rejected Dr. Jordan's
report.
Applicants contend that in 1979 they were per
mitted to have only one observer at the hunt, Dr.
Jordan, and then only for one day after advising
the fishery authorities in advance; if the observer
were prevented by weather or otherwise from view
ing the hunt on that day, no other permit would be
issued. Accordingly in 1980 no application for a
permit was made as these conditions rendered
proper observation futile. Certainly this is a most
restrictive condition if applied to expert scientific
observers, as distinguished from protesters.
It is applicants' contention that the only observ
ers permitted are those favourable to respondent's
position and that anyone who makes an unfavour
able report is not permitted to return as an observ
er. I cannot accept the proposition that the distin
guished scientists and others on the Minister's
Committee on Seals and Sealing are all prejudiced
and unreliable witnesses, any more than I can
accept the proposition that Dr. Jordan, Dr. Wed-
sell and Gerry Owen are prejudiced and their
evidence would not be believed, even if properly in
the record. It is not unusual for experts to disagree
when testifying in the courts, but this does not
justify a conclusion that they are unscientific or
prejudiced witnesses. It is a matter of interpreta
tion of their testimony.
The restrictions on observers representing appli
cants undoubtedly make it difficult for them to
establish continuing infractions of the Regulations
in 1980 or deliberate failure to enforce them by
representatives of the Minister. Applicants suggest
that the Court appoint an independent committee
of experts to visit the sealing areas and report on
their findings to the Court. It was suggested that
this is similar to a taking of a view provided for in
Rule 494(11) or appointment of assessors pursuant
to Rule 492. The former is sometimes useful to the
Court in expropriation or construction contract
claims and the latter is used on occasion in admi
ralty cases involving technical evidence. I do not
believe either Rule would justify what applicants
seek here.
Procedure in our courts is based on the adver
sary system, that is to say each party must present
the evidence on which it seeks to rely and attempt
to refute the other party's evidence by cross-
examination of its witnesses or rebuttal proof. The
fact that one party encounters difficulty in obtain
ing the required evidence or that the opposing
party prevents it from obtaining same does not
justify the Court in attempting to obtain the evi
dence itself. What applicants suggest really
amounts to the Court providing experts as wit
nesses whose evidence applicants hope will support
their case. This is a civil proceeding and not a
Commission of Inquiry into the Seal Hunt and the
distinction must be maintained. The Court cannot
conduct independent investigations in an attempt
to establish applicants' case.
Finally it should be pointed out that from the
practical point of view the appointment of observ
ers, whether by applicants or otherwise, would
have little result. It must be evident that such
observers, accompanied by fishery officers, would
be unlikely to see any infractions, or if they did,
charges resulting from them would undoubtedly be
laid. I am not unaware that in the past complaints
of infractions to fishery officers have frequently
not been acted on, but I would be surprised if, in
the present climate and since the passage of the
Regulations, appropriate action would still be
refused. Any isolated infractions detected by
observers would add little to what is already
known, since it has been established that some
infractions undoubtedly occur, save to indicate
that the same regrettable situation is still continu
ing in 1980.
The Court can and does state that the Regula
tions should be enforced with the utmost vigour
and that any fishery officer who observes an
infraction and does not take appropriate action
should be subject to dismissal or other disciplinary
action. Respondent itself does not suggest that the
Regulations should not be enforced.
The Court cannot, however, by mandamus,
order the Minister to enforce the law and Regula
tions. His obligation to do so is self-evident and
there is no indication that he is refusing to carry
out this obligation.
The application is therefore dismissed with
costs.
ORDER
Applicants' motion for issue of a writ of man-
damus against respondent is dismissed with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.