R. v. Bob et al., (1991) 88 Sask.R. 302 (CA)

• Judge: Bayda, C.J.S., Vancise and Wakeling, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: April 30, 1990
• Jurisdiction: Saskatchewan
• Citations: (1991), 88 Sask.R. 302 (CA)

R. v. Bob (1991), 88 Sask.R. 302 (CA)

MLB headnote and full text

Faith Lavina Bob, Joseph Frank Aisaican, Geraldine Leslee Bear, Dennis Kevin Taypotat, Wesley Murray Kequahtooway and Thomas Kequahtooway (appellants) v. Her Majesty The Queen (respondent)

(No. 4696)

Indexed As: R. v. Bob et al.

Saskatchewan Court of Appeal

Bayda, C.J.S., Vancise and Wakeling, JJ.A.

January 9, 1991.

Summary:

Six Indian Band members were convicted of keeping a common gaming house contrary to s. 185(1) of the 1970 Criminal Code. All appealed from conviction.

The Saskatchewan Court of Appeal, Wakeling, J.A., dissenting, allowed the appeal, set aside the convictions and entered acquittals.

Civil Rights - Topic 5501

Equality and protection of the law - "Equality before the law" defined - The Saskatchewan lottery licensing authority (Registrar) wrongfully refused to issue or maintain bingo licences to several Indian bands absent payment of the 2% charge required by the Lottery Licencing Provisions, s. 17 - In fact the Bands were exempt from paying the charge - The Saskatchewan Court of Appeal held that because the Indians were required to sacrifice a right before they could obtain a licence and take advantage of s. 190 of the 1970 Criminal Code (respecting the decriminalization of holding bingos (keeping a common gaming house)), and because non-Indians were not so required, the Registrar's acts constituted a denial of the Indians' rights to equality before the law - These acts were not "prescribed by law" within s. 1 - See paragraphs 22 to 32.

Civil Rights - Topic 5516

Equality and protection of the law - Tests for inequality - General - The Supreme Court of Canada, in Andrews v. Law Society of British Columbia, adopted a three step approach for assessing whether certain impugned legislation violated an individual's s. 15 Charter rights - The Saskatchewan Court of Appeal held that this same three step approach may be used to test an impugned administrative act - The court stated the three steps, as adapted to an administrative act - See paragraph 25.

Civil Rights - Topic 5646

Equality and protection of the law - Indians - [See Civil Rights - Topic 5501].

Civil Rights - Topic 8348

Charter - Application - Exceptions - Reasonable limits prescribed by law - [See Civil Rights - Topic 5501].

Civil Rights - Topic 8369

Charter - Denial of rights - Remedies - Dismissal of charge - [See Civil Rights - Topic 8544].

Civil Rights - Topic 8544

Charter - Interpretation - Appropriate and just remedy - Indian Band members were convicted of operating a common gaming house when they held bingos on their reserves for charitable purposes - They were wrongfully denied a licence when they rightfully refused to pay a 2% charge imposed as a condition to the granting of such licences - Thus their s. 15 Charter rights were denied, as with a licence they had a defence to the charge under s. 190 of the 1970 Criminal Code - The Saskatchewan Court of Appeal held that to acquit the Indians would constitute an "appropriate and just remedy" under s. 24(1) of the Charter - See paragraphs 33 to 43.

Civil Rights - Topic 8554

Charter - Interpretation - Prescribed by law - [See Civil Rights - Topic 5501].

Constitutional Law - Topic 2761

Determination of validity of statutes - Severability - General - The Saskatchewan Court of Appeal referred to the test for severability in those situations where part of a statute is declared invalid - The court held that the principles were equally valid if the issue of severability arises from a declaration of nonapplicability of a statutory provision - See paragraphs 15 to 16.

Indians, Inuit and Métis - Topic 6510

Taxation - Exemption - Personalty on reserve - By order-in-council the Lottery Licencing Provisions prescribed, as a condition to the granting of a lottery (bingo) licence, inter alia, a charge of 2% of the total retail value of the prize - Indian Bands held bingo games on reserves for admittedly charitable purposes, but without a licence as required by s. 190(1)(b) of the 1970 Criminal Code - The Saskatchewan Court of Appeal held that the Indians were not required to pay the 2%, as this charge was a "tax" on personal property within s. 87(1) of the Indian Act and they were thus exempt from taxation - See paragraphs 2 to 14.

Cases Noticed:

R. v. National Fish Company Limited, [1931] Ex. C.R. 75, refd to. [para. 12].

Nowegijick v. Minister of National Revenue and Grand Council of the Crees of Québec et al., [1983] 1 S.C.R. 29; 46 N.R. 41, refd to. [para. 13].

Attorney General for Alberta v. Attorney General for Canada, [1947] A.C. 503, appld. [para. 15].

R. v. Grabowski, [1985] 2 S.C.R. 434; 63 N.R. 32, refd to. [para. 15].

R. v. Morin (1989), 79 Sask.R. 251; 52 C.C.C.(3d) 562; 73 C.R.(3d) 383, refd to. [para. 25].

R. v. S.B. and H.B., [1989] 5 W.W.R. 621; 76 Sask.R. 308, refd to. [para. 25].

R. v. Westfair Foods (1989), 80 Sask.R. 33; 65 D.L.R.(4th) 56, refd to. [para. 25].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; [1989] 2 W.W.R. 289; 91 N.R. 255; 56 D.L.R.(4th) 1, appld. [para. 25].

R. v. Turpin, Siddiqui and Clauzel, [1989] 1 S.C.R. 1296; 96 N.R. 115; 34 O.A.C. 115; 69 C.R.(3d) 97, refd to. [para. 25].

Brewer Street Investments Ltd. v. Barclays Woolen Co. Ltd., [1954] 1 Q.B. 428, refd to. [para. 39].

R. v. Hauser, [1979] 1 S.C.R. 984; 26 N.R. 541, refd to. [para. 51].

R. v. Wilkes; R. v. Foshay (1979), 48 C.C.C.(2d) 362 (Ont. C.A.), refd to. [para. 51].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 32]; sect. 7 [paras. 1, 22, 44]; sect. 15 [paras. 1, 22-25, 31, 33, 42, 44]; sect. 15(2) [para. 28]; sect. 24(1) [paras. 1, 33-34, 40, 44].

Criminal Code, R.S.C. 1970, c. C-34, sect. 185(1) [paras. 1, 3-4, 46, 49, 54]; sect. 190 [paras. 27, 29, 35]; sect. 190(1) [paras. 1, 54]; sect. 190(1)(b) [paras. 4-5, 8]; sect. 190(2) [paras. 1, 6, 54].

Criminal Code, R.S.C. 1985, c. C-46, sect. 201(1) [paras. 1, 46]; sect. 207(1) [para. 1]; sect. 207(2) [para. 1].

Indian Act, R.S.C. 1970, c. I-6, sect. 87 [paras. 1, 7, 10, 13-14, 19, 24, 28, 36, 41, 47].

Lottery Licensing Provisions (Sask.), O.C. 1921/82, sect. 3, sect. 4, sect. 6, sect. 7, sect. 8, sect. 8.1(1), sect. 8.1(2) [para. 6]; sect. 17 [paras. 6-7, 9, 10, 14-15, 17-21, 24, 26, 32, 36-37, 39, 41]; sect. 17(1) [para. 9]; sect. 17(1.1) [paras. 9, 36-37].

Authors and Works Noticed:

Dworkin, Ronald, Taking Rights Seriously, p. 192 [para. 38].

Counsel:

D. Knoll and J. Nugent, for the appellants;

P.M. McAdam, for the provincial Crown;

M. Kindrachuk, for the federal Crown.

These appeals were heard before Bayda, C.J.S., Vancise and Wakeling, JJ.A., of the Saskatchewan Court of Appeal on April 30, 1990. The decision of the Court of Appeal was delivered on January 9, 1991, when the following opinions were filed:

Bayda, C.J.S. (Vancise, J.A., concurring) - See paragraphs 1 to 45;

Wakeling, J.A., dissenting - See paragraphs 46 to 61.