This case arose out of an incident in 1995, when armed boarding parties from Canadian vessels, including the Cape Roger and the Sir Wilfrid Grenfell, boarded the Spanish deep-sea freezer-trawler Estai within the Northwest Atlantic Fisheries Organization (NAFO) Regulatory Area, which is outside Canadian fishery waters or, put another way, on the high seas. The boarding parties arrested the Estai. They requested that the master co-operate and take his vessel to St John's, Newfoundland. They advised him that if he did not co-operate, they would take his vessel to St. John's in any event. The master agreed to co-operate. The Estai, accompanied by a number of Canadian vessels, proceeded toward St John's at full speed.

The owner and master of the Estai brought a claim against the defendant, arguing, among other things, that:

• the first attempted boarding of the Estai by Canadian Fisheries Officers on 9 March 1995 was unlawful, in that the Estai was a Spanish ship in international waters and was clearly identified by flag, home port name and side number as being a Spanish ship;
• the pursuit of the Estai by the Cape Roger resulted in the Cape Roger coming dangerously close to the Estai, thus putting its crew in danger in an unlawful manner and constituted an unlawful trespass by the defendant on the high seas;
• other Canadian vessels were involved in the unlawful pursuit in international waters, at times in dense fog, thus contributing to the danger;
• the unlawful use by the defendant's vessel, the Sir Wilfrid Grenfell, of its water cannon constituted an unlawful trespass against the plaintiffs and their vessel on the high seas;
• the gun-fire from the Cape Roger was unlawful and constituted a further trespass by the defendant on the plaintiffs and their vessel;
• the boarding by armed boarding teams constituted a further unlawful trespass on the high seas; and
• the arrest of the master and of the vessel was unlawful, as was the order directing the Estai to proceed to St John's.

The plaintiffs sought damages for the above, and also questioned the constitutional validity, applicability or effect of Regulations made by the Governor-in-Council on 3 March 1995 purporting to regulate fishing activities of Spanish fishing vessels in international waters beyond the 200-mile exclusive economic zone (EEZ) of Canada.

Held: The plaintiffs' action is dismissed, except with regard to the following three claims for:

1. out-of-pocket legal expenses and ship's agency fees during the sojourn of the Estai in St. John's: CAD 74,787.82;
2. lost fishing time of the Estai by reason of its arrest and detention: CAD 46,000; and
3. extra bunkers and lubrication for the Estai: CAD 16,264.75.

The Judge discussed the Convention on Future Multilateral Co-operation in the Northwest Atlantic Fisheries 1978, and the establishment of the Northwest Atlantic Fisheries Organisation (NAFO). The European Economic Community, later the European Union, was a Contracting Party to the Convention from its coming into force, as was Spain. In 1986, Spain joined the European Economic Community and its participation in NAFO was thereafter subsumed in that of the Community, although it remained responsible for prosecution of infractions of NAFO rules and regulations alleged to have been committed by its vessels.

The United Nations Convention on the Law of the Sea 1982 (UNCLOS), which was signed and subsequently ratified by Canada, was also relevant:

• Article 3 provides that every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with the Convention;
• Part V deals with States' Exclusive Economic Zones and, more particularly, art 57 provides that a State's Exclusive Economic Zone may not extend beyond 200 nautical miles from the baselines from which the breadth of the State's territorial sea is measured; and
• Articles 87-90 deal with freedom of the high seas.

Regulations under the Coastal Fisheries Protection Act were amended on 3 March 1995 and registered that day as SOR/95-136. The amending Regulations were not published in the Canada Gazette until 22 March 1995. The amendments applied to straddling stocks located in NAFO fishery subareas 3L, 3N and 3O, and the relevant straddling stocks were defined to include Greenland halibut. The States whose vessels were prescribed to be subject to unilateral enforcement action by protection officers were extended to include Portugal and Spain. Notice of the enactment of the extending Regulations was given to the European Union. Spain withdrew its fishing vessels from the relevant fishery subareas into international waters outside the NAFO Regulatory Area. Following consultations that Spanish authorities and the plaintiffs considered to be appropriate, Spain's fishing vessels that had been withdrawn were ordered to return to fishing within the relevant fishery subareas of the NAFO Regulatory Area. Those vessels included the Estai.

The Court is satisfied that the defendant, acting through the Minister of Fisheries and Oceans and his employees and agents, had the legal right to arrest the Estai and its master in international waters on 9 March 1995. The Court finds no basis on which to conclude that the motivation of the Governor-in-Council in enacting the amending regulations of 3 March 1995 was not for conservation and management purposes in relation to a straddling stock, Greenland halibut. Counsel for the plaintiffs attempted valiantly to establish that the objective was to promote the economic interests of Canada and Canada's fishing industry and fishers. The Court satisfied that the totality of the evidence points directly to an objective of preservation of the Greenland halibut stocks and the achievement in international fora of significant strengthening of the international regulatory regime.

The Court is further satisfied that any claim that the conduct of the Canadian pursuing ships was reckless, that excessive force was used, or that the provisions of ss 19.3-19.5 of the Coastal Fisheries Protection Regulations were not fully complied with, is unjustified. That the master of the Estai, after the trial of this matter had commenced, chose not to give evidence, supports the Court's conclusion in this regard.