''Canada (AG) v British Columbia (AG)'', also known as the ''Reference as to constitutional validity of certain sections of The Fisheries Act, 1914'' and the ''Fish Canneries Reference'', is a significant decision of the

Judicial Committee of the Privy Council The Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for the Crown Dependencies, the British Overseas Territories, some Commonwealth countries and a few institutions in the United Kingdom. Established on 14 Aug ...

in determining the boundaries of federal and provincial jurisdiction in

Canada Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...

. It is also significant, in that it represented a major victory in the fight against discrimination aimed at

Japanese Canadians are Canadian citizens of Japanese ancestry. Japanese Canadians are mostly concentrated in Western Canada, especially in the province of British Columbia, which hosts the largest Japanese community in the country with the majority of them living ...

, which was especially prevalent in

British Columbia British Columbia (commonly abbreviated as BC) is the westernmost province of Canada, situated between the Pacific Ocean and the Rocky Mountains. It has a diverse geography, with rugged landscapes that include rocky coastlines, sandy beaches, ...

in the early part of the 20th century.

Background

Until the early 1920s federal policy governing access to fishing licenses was basically open and non-discriminatory. In 1922, under what became known as the "oriental exclusion policy", this was revised to provide for the reduction of the number of licenses granted to Japanese-Canadian fishermen, aiming to eventual total elimination of such licenses. In addition, conditions were attached for the prohibition of gas motors on such fishermen's vessels. The controversy came to a head in 1927 as a prosecution against the Somerville Cannery Company for operating a

cannery Canning is a method of food preservation in which food is processed and sealed in an airtight container ( jars like Mason jars, and steel and tin cans). Canning provides a shelf life that typically ranges from one to five years, although ...

in Prince Rupert without a federal license. The cannery was operating as a floating clam cannery, the only one of its kind. All other canneries were on land. Francis Millerd, general manager and part-owner of Somerville, challenged the oriental exclusion policy through hiring Japanese-Canadian fishermen and lobbying to secure salmon fishing licenses for them. Charges against Somerville were dismissed, on the grounds that fish canneries did not require a federal license. Further pressure by Somerville and the Association of Fishermen of Japanese Origin resulted in the following

reference question In Canadian law, a reference question or reference case (formally called abstract review) is a submission by the federal or a provincial government to the courts asking for an advisory opinion on a major legal issue. Typically the question conc ...

s being posed to the Supreme Court of Canada:

At the Supreme Court of Canada

The Supreme Court unanimously held that the provisions cited in Question 1 were ''ultra vires'' the Parliament of Canada, as fish canning only occurs after the fish have been caught, thus not being within the federal fisheries jurisdiction. As a fish cannery is similar in nature to a fruit or vegetable cannery, it is a civil right in the province in which it is carried on, and therefore subject to provincial jurisdiction. Nor could such provisions be saved by resorting to another head of power: It was unnecessary to answer Question 2. Edmund Leslie Newcombe

In a 4-3 decision concerning Question 3, it was held that the Minister must issue fishing licenses to all qualified persons that paid the appropriate fee, and there was no discretionary authority to withhold such licenses. Newcombe J ( Anglin CJ and Rinfret and

Lamont Lamont or LaMont may refer to: People *Lamont (name), people with the surname or given name ''Lamont'' or ''LaMont'' * Clan Lamont, a Scottish clan Places Canada *Lamont, Alberta, a town in Canada * Lamont County, a municipal district in Albert ...

JJ, concurring) stated that the Minister could not exercise his licensing discretion in a discriminatory manner: Duff J ( Mignault and

Smith Smith may refer to: People * Metalsmith, or simply smith, a craftsman fashioning tools or works of art out of various metals * Smith (given name) * Smith (surname), a family name originating in England, Scotland and Ireland ** List of people wi ...

JJ, concurring) believed that "There is nothing in the terms in which these provisions are expressed, nor, as far as I have been able to discover, in the terms of the regulations, pointing to a conclusion that the authority of the Minister is not a permissive one."SCC Reference, p. 464 The federal government chose to ignore the ruling, pending appeal to the Privy Council. In the interim, prosecutions against Japanese-Canadian fishermen were being dismissed in the lower courts. The Association of Fishermen of Japanese Origin, having intervened in the hearing at the Supreme Court, were also respondents in the appeal.

At the Privy Council

The Judicial Committee upheld the ruling of the Supreme Court in its entirety. Before proceeding with the appeal at hand, Lord Tomlin considered the matter of where federal and provincial jurisdiction arise under Canadian constitutional law, and gave his summary of where the jurisprudence stood at that time: Tomlin then turned to the question as to where jurisdiction over fish canneries fell. In that regard, As such activity could not be seen to fall under any other heading of s. 91, and a licensing system could not reasonably be seen to be incidental to the federal power, it therefore fell within provincial jurisdiction. The Association of Fishermen of Japanese Origin were awarded their costs in the appeal.

Impact

The gas boat restriction and the oriental exclusion policy were abandoned for the 1930 fishing season, and discrimination in the fishing industry came to an end. On a larger view, the ''Fish Canneries Reference'' is considered to be one of the main foundations of Canadian constitutional jurisprudence, and its four-part summary of how to determine jurisdiction was subsequently cited with approval in the '' Aeronautics Reference'' in 1931. The question of ministerial discretionary authority, and the extent as to how far it can go, continued to be debated, eventually to be settled by the Supreme Court in '' Roncarelli v. Duplessis''.

Background

At the Supreme Court of Canada

At the Privy Council

Impact

See also

References

Further reading