Michael Perry (the accused), as captain of the Mr B, was charged 'that he did without authority while being on board a foreign fishing vessel in a portion of the continental shelf beyond the limits of Canadian fisheries waters, fish or prepare to fish for a sedentary species of fish', which was a violation of s 4(2) of the Coastal Fisheries Protection Act RSC 1985, c 33. The defence argued that the accused should be acquitted on the ground that the Crown had failed to prove beyond a reasonable doubt that the events alleged took place on the continental shelf of Canada.

Held: Judgment in favour of the Crown.

There is some merit in considering the United Nations Convention on the Law of the Sea 1982 (UNCLOS) since a perusal of it places the Canadian legislation in perspective. It is evident that the Canadian drafting was done in such a way so as to be consonant with the UNCLOS and to ensure that Canada was not claiming any more than what is allowed in international law. Article 76 of UNCLOS provides that:

Definition of the continental shelf

1. The continental shelf of a coastal state comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental shelf does not extend up to that distance.

...

3. The continental margin comprises the submerged prolongation of the land mass of the coastal State and consists of the sea-bed and subsoil of the shelf of the slope and the rise. It does not include the deep ocean floor with its oceanic ridges or the subsoil thereof.

This article requires States which have ratified UNCLOS to delineate outer limits by connecting fixed points defined by co-ordinates of latitude and longitude and to deposit charts and coordinates with the Secretary-General of the United Nations. Canada has not met these requirements since it has not ratified the Convention. However, nothing prevents this nation from drawing on UNCLOS as a source of international law in the preparation and drafting of its own legislation.

Clearly, the Parliament of Canada did no more in the enactment of the Oceans Act SC 1996, 45 Elizabeth II c 31 (the Act) than assert the same claim to the continental shelf that is provided for in the mainstream of international law. Section 17 of the Act contemplates a national claim to the inclusion of the 'maximum extent' of the continental shelf, 'the outer edge of the continental margin being the submerged prolongation of the land mass of Canada'. Thus, the Court decides that Canada has asserted rights at international law to the sea bed of the continental shelf both within and outside of the exclusive economic zone. The accused was fishing on the continental shelf of Canada as defined by the Act.