R. v. Blais (E.L.J.), (2001) 156 Man.R.(2d) 53 (CA)

• Judge: Scott, C.J.M., Twaddle and Helper, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: April 11, 2001
• Jurisdiction: Manitoba
• Citations: (2001), 156 Man.R.(2d) 53 (CA);2001 MBCA 55

R. v. Blais (E.L.J.) (2001), 156 Man.R.(2d) 53 (CA);

    246 W.A.C. 53

MLB headnote and full text

Temp. Cite: [2001] Man.R.(2d) TBEd. AP.027

Her Majesty The Queen (respondent/respondent) v. Ernest Lionel Joseph Blais (accused/appellant/appellant) and Métis National Council (intervenor)

(AR 98-30-03962; 2001 MBCA 55)

Indexed As: R. v. Blais (E.L.J.)

Manitoba Court of Appeal

Scott, C.J.M., Twaddle and Helper, JJ.A.

April 11, 2001.

Summary:

The accused was convicted in Provincial Court of hunting big game out of season contrary to s. 26 of the Wildlife Act. The accused appealed, arguing that he, being a Métis, was included within the scope of the word "Indian" in section 13 of the Natural Resources Transfer Agreement of 1930. Section 13 gave "Indians" in the Province of Manitoba the right to hunt, trap and fish for food at any time of year on unoccupied Crown lands or on any other lands to which the Indians had a right of access.

The Manitoba Court of Queen Bench, in a decision reported 130 Man.R.(2d) 114, dismissed the appeal. Blais applied for and obtained leave to appeal. See [1998] Man.R.(2d) Uned. 110.

The Manitoba Court of Appeal dismissed the appeal.

Constitutional Law - Topic 25

General - Raising constitutional issues - Proof required - Legislative facts versus adjudicative facts - The accused was con­victed of hunting big game out of season (Wildlife Act) - The accused appealed, arguing that he, being a Métis, was an "Indian" for purposes of s. 13 of the Na­tural Resources Transfer Agreement (1930) (NRTA), confirmed by the Constitution Act (1930) - Section 13 gave Manitoba "Indians" the right to hunt, trap and fish for food all year on unoccupied Crown lands or on other lands to which they had access rights - On appeal, the accused sought to have admitted excerpts of the minutes of the 1934 Royal Commission on the Transfer of Natural Resources of Saskatchewan - Those excerpts contained a statement by a federal government law­yer that "throughout the history of Canada the term 'Indian' has been held to include half-breeds" - The minutes were discovered after trial - The Manitoba Court of Appeal ruled that the excerpts were not admissible as legislative or historical facts - The excerpts were disputed adjudicative facts - See paragraphs 93 to 100.

Constitutional Law - Topic 1016

Interpretation of Constitution Act - General principles - Constitutional rights - The accused was convicted of hunting big game out of season (Wildlife Act) - The accused appealed, arguing that he, being a Métis, was an "Indian" for purposes of s. 13 of the Natural Resources Transfer Agreement (1930) (NRTA), confirmed by the Consti­tution Act (1930) - Section 13 gave Mani­toba "Indians" the right to hunt, trap and fish for food all year on unoccupied Crown lands or on other lands to which they had access rights - The Manitoba Court of Appeal dismissed the appeal - The court held that in determining the question of whether Métis are "Indians" for the pur­poses of s. 13, a truly purposive approach had to be taken - To accomplish this task, it was usually helpful to have evidence of the surrounding circumstances, such as contemporaneous governmental records, in interpreting a constitutional provision enacted many years ago - See paragraphs 31 to 35.

Constitutional Law - Topic 6351

Federal jurisdiction (s. 91) - Indians and lands reserved for Indians - Indian defined - [See second Fish and Game - Topic 847 ].

Fish and Game - Topic 824

Indian, Inuit and Métis rights - Definitions - Indian defined - [See second Fish and Game - Topic 847 ].

Fish and Game - Topic 847

Indian, Inuit and Métis rights - Right to hunt for food - Métis - The accused was convicted of hunting big game out of season (Wildlife Act) - The accused ap­pealed, arguing that he, being a Métis, was an "Indian" for purposes of s. 13 of the Natural Resources Transfer Agreement (1930) (NRTA), confirmed by the Consti­tution Act (1930) - Section 13 gave Mani­toba "Indians" the right to hunt, trap and fish for food all year on unoccupied Crown lands or on other lands to which they had access rights - The Manitoba Court of Appeal dismissed the appeal - The court affirmed the trial judge's finding and conclusion that the appellant had failed to establish any connection or community of interest between his constitutionally pro­tected right to hunt (assuming such a right existed) and the land where he was hunting at the time of his apprehension - See para­graphs 53 to 69.

Fish and Game - Topic 847

Indian, Inuit and Métis rights - Right to hunt for food - Métis - The accused was convicted of hunting big game out of season (Wildlife Act) - The accused ap­pealed, arguing that he, being a Métis, was an "Indian" for purposes of s. 13 of the Natural Resources Transfer Agreement (1930) (NRTA), confirmed by the Consti­tution Act (1930) - Section 13 gave Mani­toba "Indians" the right to hunt, trap and fish for food all year on unoccupied Crown lands or on other lands to which they had access rights - The Manitoba Court of Appeal dismissed the appeal - The court held that the accused was not an "Indian" under s. 13 - See paragraphs 70 to 92.

Fish and Game - Topic 850

Indian, Inuit and Métis rights - Right to hunt for food - Crown lands - Unoccupied - [See both Fish and Game - Topic 847 ].

Indians, Inuit and Métis - Topic 2

General - Indian defined - [See second Fish and Game - Topic 847 ].

Indians, Inuit and Métis - Topic 5

General - Interpretation of legislation - [See Constitutional Law - Topic 1016 ].

Indians, Inuit and Métis - Topic 5

General - Interpretation of legislation - The accused was convicted of hunting big game out of season (Wildlife Act) - The accused appealed, arguing that he, being a Métis, was an "Indian" for purposes of s. 13 of the Natural Resources Transfer Agreement (1930) (NRTA), confirmed by the Consti­tution Act (1930) - Section 13 gave Mani­toba "Indians" the right to hunt, trap and fish for food all year on unoccupied Crown lands or on other lands to which they had access rights - Section 35(1) of the Consti­tution Act 1982, recognized and affirmed the existing aboriginal and treaty rights of the aboriginal peoples of Canada, which included Métis - The Manitoba Court of Appeal dismissed the appeal - The court held that the introduction of s. 35(1) of the Constitution Act, 1982, was not of direct assistance in interpreting the meaning of the word "Indian" in s. 13 of the NRTA - See paragraphs 36 to 42.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" - [See Constitutional Law - Topic 25 ].

Words and Phrases

Indian - The Manitoba Court of Appeal discussed the meaning of the word "In­dian" as it appeared in section 13 of the Natural Resources Transfer Agreement of 1930 - See paragraphs 70 to 92.

Cases Noticed:

R. v. Adams (G.W.), [1993] 3 C.N.L.R. 98; 55 Q.A.C. 19 (C.A.), revd. [1996] 3 S.C.R. 101; 202 N.R. 89, consd. [para. 15].

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, refd to. [para. 15].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 30].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, consd. [para. 31].

St. Catherine's Milling and Lumber Co. v. R. (1888), 14 App. Cas. 46 (P.C.), refd to. [para. 32].

Reference Re Section 24 of the B.N.A. Act; Edwards v. Canada (Attorney Gen­eral), [1930] 1 D.L.R. 98 (P.C.), consd. [para. 32].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, consd. [para. 33].

R. v. Horseman, [1990] 1 S.C.R. 901; 108 N.R. 1; 108 A.R. 1, consd. [para. 40].

R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 321, consd. [para. 55].

R. v. McPherson (J.J.) and Christie (H.M.) (1994), 90 Man.R.(2d) 290 (Q.B.), dist. [para. 62].

R. v. Powley (S.) et al. (2001), 141 O.A.C. 121 (C.A.), dist. [para. 64].

R. v. Grumbo (J.) (1998), 168 Sask.R. 78; 173 W.A.C. 78 (C.A.), consd. [para. 71].

R. v. Laprise, [1978] 6 W.W.R. 85 (Sask. C.A.), refd to. [para. 71].

R. v. Sutherland, Wilson et al. and Canada (Attorney General), [1980] 2 S.C.R. 451; 35 N.R. 361; 7 Man.R.(2d) 359, refd to. [para. 71].

Cardinal v. Alberta (Attorney General), [1974] S.C.R. 695, consd. [para. 78].

R. v. Frank, [1978] 1 S.C.R. 95; 15 N.R. 487; 4 A.R. 271, refd to. [para. 79].

R. v. Moosehunter, [1981] 1 S.C.R. 282; 36 N.R. 437; 9 Sask.R. 149, refd to. [para. 79].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 533; 247 N.R. 306; 179 N.S.R.(2d) 1; 553 A.P.R. 1, consd. [para. 87].

R. v. Kruger and Manuel, [1978] 1 S.C.R. 104; 15 N.R. 495, consd. [para. 88].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 95].

Black & Co. v. Law Society of Alberta (1985), 67 A.R. 244 (C.A.), refd to. [para. 95].

Reference Re Anti-Inflation Act (Canada) - see Anti-Inflation Act, Re.

Anti-Inflation Act, Re, [1976] 2 S.C.R. 373; 9 N.R. 541, refd to. [para. 96].

Upper Churchill Water Rights Reversion Act, 1980, Re; Churchill Falls (Labrador) Corp. et al. v. Newfoundland (Attorney General) et al., [1984] 1 S.C.R. 297; 53 N.R. 268; 47 Nfld. & P.E.I.R. 125; 139 A.P.R. 125, refd to. [para. 96].

Public School Boards Association (Alta.) et al. v. Alberta (Attorney General) et al., [2000] 1 S.C.R. 44; 251 N.R. 1; 250 A.R. 314; 213 W.A.C. 314, consd. [para. 99].

Statutes Noticed:

Constitution Act, 1982, sect. 35(1), sect. 35(2) [para. 36].

Manitoba Act, 1870, sect. 31 [para. 9].

Natural Resources Transfer Agreement of 1930, sect. 13 [para. 2].

Counsel:

L.R. Chartrand, for the appellant;

H.D. Penner, for the respondent;

J. Teillet, for the intervenor.

This appeal was heard on October 18 and December 1, 2000, by Scott, C.J.M., Twad­dle and Helper, JJ.A., of the Manitoba Court of Appeal.

The judgment of the Manitoba Court of Appeal was delivered on April 11, 2001, by Scott, C.J.M.