Perry et al. v. Ontario, (1997) 100 O.A.C. 370 (CA)

• Judge: Finlayson, Labrosse and Laskin, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 05, 1997
• Jurisdiction: Ontario
• Citations: (1997), 100 O.A.C. 370 (CA)

Perry v. Ont. (1997), 100 O.A.C. 370 (CA)

MLB headnote and full text

Temp. Cite: [1997] O.A.C. TBEd. JN.025

Harold Perry and Mitchell Shewell, on their own behalf and on behalf of the Ardoch Algonquin First Nation and Allies, and the Ardoch Algonquin First Nation and Allies (applicants/respondents in appeal) v. Her Majesty the Queen in Right of Ontario (respondent/appellant) and Chief Robert Whiteduck, in his personal capacity and on behalf of The Algonquin Management Circle (friend of the court/party respondent in appeal) and Métis Nation of Ontario (friend of the court) and Ontario Métis Aboriginal Association (friend of the court).

Harold Perry and Robert Lovelace, on their own behalf, and on behalf of the Ardoch Algonquin First Nation and Allies (applicants/respondents in appeal) v. Her Majesty the Queen in Right of Ontario and the Honourable Chris Hodgson, Minister of Natural Resources and the Honourable Charles Harnick, Attorney General for Ontario (respondents/appellants) and Chief Robert Whiteduck, in his personal capacity and on behalf of the Algonquin Management Circle (friend of the court/party respondent in appeal)

(C23929; C24481; C25265)

Indexed As: Perry et al. v. Ontario

Ontario Court of Appeal

Finlayson, Labrosse and Laskin, JJ.A.

June 5, 1997.

Summary:

The Minister of Natural Resources pro­vided conservation officers, etc., with an Interim Enforcement Policy which exempted "status Indians able to identify them­selves as such" from enforcement of some of the province's fish and game laws. Perry was charged with offences under the Migratory Birds Convention Act, 1994 and the Game and Fish Act. Perry claimed that he was a non-status Indian and asserted his aboriginal rights in defence to the charges. He applied under s. 24(1) of the Charter for an order staying the charges and for a declaration that the Policy discriminated against non-status Indians (Charter, s. 15(1)). The Crown with­drew the charges when it became apparent that although Perry was not a registered status Indian, he was a registrable status Indian to which the Policy probably applied. Perry continued, claiming that he remained entitled to an order that the Policy was unconstitutional. The Crown considered the stay application to now be moot.

The Ontario Court (General Division) held that the policy violated s. 15 of the Charter and was ultra vires the province. The matter of remedy was adjourned for submissions. The Minister (new government) unilaterally rescinded the Policy and issued new guide­lines (Aboriginal Compliance Guidelines). Perry et al. applied for an order declaring that the province lacked authority to rescind the Policy without consultation. The court held that the unilateral rescission of the Policy without consultation violated s. 35(1) of the Charter. The court ordered the Policy reinstated until the province enacted new enforcement measures which insulated all persons with s. 35 Charter rights from the enforcement of laws incompatible with those rights. To remedy the s. 15(1) violation, the court ordered that the term "status Indian" be read up to include anyone who was an "aboriginal person". The court mandated immediate negotiations with aboriginal groups, retained supervisory jurisdiction to determine disputes arising in the negotiations and ordered the parties to report to the court. The province appealed the various judgments and orders. The issues on appeal were (1) whether the trial judge denied the province procedural fairness; (2) whether the province had the right to unilaterally withdraw the Policy; and (3) whether the trial judge had jurisdiction to order the remedies he imposed.

The Ontario Court of Appeal allowed the appeals on the ground that the trial judge denied the province procedural fairness in his "heavy-handed approach to a highly sensitive matter". Further, the province had the right to unilaterally terminate the Policy. At that point, the discrimination complained of no longer existed and the trial judge should have dismissed further proceedings as being moot. Further, the trial judge erred in reading up the Policy to include all "aborig­inal persons" (proper remedy was declaration of invalidity) and had no jurisdiction to order mandatory negotiations.

Civil Rights - Topic 8380.1

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Reading in - A trial judge ruled that a provincial Interim Enforcement Policy (IEP) appli­cable only to status Indians violated s. 15 of the Charter - The appropriate remedy was to read up the IEP to include all "ab­original persons" - The Ontario Court of Appeal held that assuming the trial judge was correct in finding a s. 15 violation, reading the IEP to include all "aboriginal persons" obliterated the IEP's objective - The proper remedy would have been to declare the IEP invalid - Given the com­plexity of aboriginal rights, reading up or reading in was an unacceptable intrusion into the legislative sphere and would result in an unworkable and possibly unfair policy - See paragraphs 73 to 84.

Courts - Topic 560.2

Judges - Powers - To order settlement negotiations - [See first Indians, Inuit and Métis - Topic 506 ].

Courts - Topic 592

Judges - Duties - Duty to conduct fair and impartial proceedings - The Ontario government appealed various orders by the trial judge respecting the striking down and reading up of an Interim Enforcement Policy which exempted "status Indian people able to identify themselves as such" from enforcement of some of the prov­ince's fish and game laws - The Ontario Court of Appeal allowed the appeal on the ground that the heavy-handed manner in which the trial judge conducted the mul­tiple proceedings denied the government procedural fairness - See paragraphs 51 to 59.

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - [See Fish and Game - Topic 5605 ].

Crown - Topic 5

General principles - Authority of govern­ment to bind future government - [See Fish and Game - Topic 5605 ].

Crown - Topic 681

Authority of Ministers - Exercise of - Policy statements - General - [See Fish and Game - Topic 5605 ].

Fish and Game - Topic 5605

Enforcement - General - Ministerial guidelines - In 1991, the Minister imple­mented an Interim Enforcement Policy (IEP) which partially exempted status Indians from fish and game laws - The trial judge struck down the IEP as violat­ing s. 15 of the Charter (excluded non-status Indians) - The Ontario Court of Appeal held that the trial judge erred in ruling that the province could not unilat­erally withdraw the IEP - The IEP was a ministerial guideline respecting the prov­ince's interpretation of s. 35(1) of the Constitution Act - It was nonsensical to rule that once the IEP was struck down, it could not be withdrawn and replaced - If the IEP had not been struck down, since it was not a "law", it could be withdrawn - If the IEP was a "law", s. 13 of the Inter­pretation Act reserved to the province the power to repeal it - The court rejected the submission that the Minister in 1991 in­tended to bind the government to negoti­ation and no withdrawal without consulta­tion - There was now a new government and one government could not bind future governments - Section 35(1) of the Con­stitution Act did not impose a duty pre­cluding unilateral withdrawal - The court ruled that following withdrawal, the dis­crimination complained of no longer existed and the matter was then moot - See paragraphs 60 to 72.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - [See first Indians, Inuit and Métis - Topic 506 ].

Indians, Inuit and Métis - Topic 506

Rights - Constitution Act, 1982, s. 35(1) - Interpretation - A trial judge ruled that a provincial Interim Enforcement Policy (IEP) applicable only to status Indians violated s. 15 of the Charter and that the province could not unilaterally withdraw the IEP - One of the remedies imposed by the trial judge was mandatory negotiations between the province and certain Indian groups - The Ontario Court of Appeal stated that assuming that the IEP or its unilateral withdrawal violated s. 35(1) of the Constitution Act, 1982, the trial judge erred in ordering mandatory negotiations - Although a court should encourage liti­gants to settle disputes out of court, liti­gants could not be forced to do so - The Crown's fiduciary duty to Indians did not include a legal duty to negotiate with aboriginal communities - See paragraphs 84 to 94.

Indians, Inuit and Métis - Topic 506

Rights - Constitution Act, 1982, s. 35(1) - Interpretation - [See Fish and Game - Topic 5605 ].

Statutes - Topic 6901

Operation and effect - Commencement, duration and repeal - Repeal - General - [See Fish and Game - Topic 5605 ].

Cases Noticed:

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 2].

Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138; 1 N.R. 225; 43 D.L.R.(3d) 1, refd to. [para. 14].

Borowski v. Minister of Justice of Canada et al., [1981] 2 S.C.R. 575; 39 N.R. 331; 130 D.L.R.(3d) 588; [1982] 1 W.W.R. 97; 24 C.P.C. 62; 24 C.R.(3d) 352; 12 Sask.R. 420; 64 C.C.C.(2d) 97, refd to. [para. 14].

Finlay v. Canada, [1986] 2 S.C.R. 607; 71 N.R. 338, refd to. [para. 14].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1; 13 C.R.R. 287; 18 D.L.R.(4th) 481; 12 Admin. L.R. 16, refd to. [para. 62].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, refd to. [para. 63].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 63].

Royal College of Dental Sur­geons (Ont.) et al. v. Rocket and Price, [1990] 2 S.C.R. 232; 111 N.R. 161; 40 O.A.C. 241, refd to. [para. 63].

R. v. Varga (1985), 7 O.A.C. 350; 18 C.C.C.(3d) 281 (C.A.), refd to. [para. 63].

Martineau and Butters v. Matsqui Institu­tion Inmate Disciplinary Board, [1978] 1 S.C.R. 118; 14 N.R. 285, refd to. [para. 64].

Friends of the Oldman River Society v. Canada (Minister of Transport and Min­ister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 64].

Ainsley Financial Corp. et al. v. Ontario Securities Commission et al. (1994), 77 O.A.C. 155; 21 O.R.(3d) 104 (C.A.), refd to. [para. 64].

Rederiaktiebolaget Amphitrite v. R., [1921] 3 K.B. 500, refd to. [para. 66].

R. v. Dominion of Canada Postage Stamp Vending Co., [1930] S.C.R. 500, refd to. [para. 67].

Esquimalt & Nanaimo Railway Co. v. British Columbia (Attorney General), [1950] A.C. 87 (P.C.), refd to. [para. 68].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81; 137 D.L.R.(4th) 289, refd to. [para. 79].

Delgamuukw et al. v. British Columbia et al. (1993), 30 B.C.A.C. 1; 49 W.A.C. 1; 104 D.L.R.(4th) 470 (C.A.), refd to. [para. 86].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 87].

R. v. Adams (G.W.), [1996] 3 S.C.R. 101; 202 N.R. 89; 110 C.C.C.(3d) 97, refd to. [para. 87].

Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83; 19 D.L.R.(4th) 1, refd to. [para. 92].

Manitoba Language Rights Reference (No. 2), [1992] 1 S.C.R. 212; 133 N.R. 88; 76 Man.R.(2d) 124; 10 W.A.C. 124; 88 D.L.R.(4th) 385, refd to. [para. 92].

Mahe, Martel, Dubé and Association d'Ecole Georges et Julia Bugnet v. Al­berta, [1990] 1 S.C.R. 342; 105 N.R. 321; 106 A.R. 321, refd to. [para. 92].

Lavoie et al. v. Nova Scotia (Attorney General) and Board of Education of Cape Breton District (1988), 84 N.S.R.(2d) 387; 213 A.P.R. 387; 47 D.L.R.(4th) 586 (T.D.), refd to. [para. 92].

Marchand v. Simcoe (County) Board of Education (1986), 29 D.L.R.(4th) 596 (Ont. H.C.), refd to. [para. 92].

Société des Acadiens du Nouveau-Bruns­wick Inc. et al. v. Minority Lan­guage School Board No. 50 (1983), 48 N.B.R.(2d) 361; 126 A.P.R. 361 (Q.B.), refd to. [para. 92].

Statutes Noticed:

Constitution Act, 1982, sect. 35 [para. 71].

Indian Act, R.S.C. 1985, c. I-5, sect. 2 [para. 10].

Interpretation Act, R.S.O. 1990, c. I-11, sect. 13 [para. 64].

Authors and Works Noticed:

Canada, Royal Commission on Aboriginal Peoples, Partners in Confederation: Abo­riginal Peoples, Self-Government and the Constitution (1993), generally [para. 57].

Counsel:

J.T.S. McCabe, for Her Majesty the Queen in the Right of Ontario ("Ontario"), appellant;

Christopher Reid, for Harold Perry and Mitchell Shewell, on their own behalf and on behalf of the Ardoch Algonquin First Nation and Allies ("AAFNA"), respondents;

Alan Pratt, for Chief Robert Whiteduck, in his personal capacity and on behalf of the Algonquin Management Circle ("AMC") Party Intervener, respondents;

Michael Sherry, for the Chiefs of Ontario ("Chiefs") friend of the court, respon­dent;

Jean Teillet, for Métis Nation of Ontario ("MNO") friend of the court, respondent;

Robert MacRae, Michael O'Neill, Kent Roach, for Ontario Métis Aboriginal Association ("OMAA") friend of the court, respondent.

These appeals were heard on December 16-17, 1996, before Finlayson, Labrosse and Laskin, JJ.A., of the Ontario Court of Ap­peal.

The judgment of the Court of Appeal was delivered by the court and released on June 5, 1997.