R. v. Côté (F.) et al., (1996) 202 N.R. 161 (SCC)

• Judge: Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 03, 1996
• Jurisdiction: Canada (Federal)
• Citations: (1996), 202 N.R. 161 (SCC);[1996] 4 CNLR 26;[1996] ACS no 93;138 DLR (4th) 385;[1996] SCJ No 93 (QL);110 CCC (3d) 122;202 NR 161;[1996] 3 SCR 139;1996 CanLII 170 (SCC);65 ACWS (3d) 760

R. v. Côté (F.) (1996), 202 N.R. 161 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Franck Côté, Peter Decontie, Frida Morin-Côté, Russell Tenasco and Ben Decontie (appellants) v. Her Majesty The Queen (respondent) and The Attorney General of Canada, Atikamekw-Sipi/Council of the Atikamekw Nation, Chief Robert Whiteduck, on behalf of the Algonquins of Golden Lake First Nation and on behalf of all others (intervenors)

(23707)

Indexed As: R. v. Côté (F.) et al.

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé,

Sopinka, Gonthier, Cory, McLachlin,

Iacobucci and Major, JJ.

October 3, 1996.

Summary:

Five accused, all Algonquin members of the Desert River Band and residents of the Maniwaki reserve, entered a Controlled Harvest Zone, outside the reserve, to teach young aboriginal students traditional hunting and fishing practices. The accused refused to pay the motor vehicle access fee required by the Quebec Regulation respecting Controlled Access. One of the five (Côté) fished with­out possessing a required fishing licence under the Quebec Fishery Regulations. All five were charged with entering a Controlled Harvest Zone without paying the required fee for motor vehicle access. Additionally, Côté was charged with fishing without a licence. The accused claimed that they were exercising an aboriginal right and a concur­rent treaty right to fish on their ancestral lands as recognized and protected by s. 35(1) of the Constitution Act, 1982. Spe­cifically, the accused claimed an aboriginal right to fish incident to a right of aboriginal title over the Zone derived from historical oc­cupation at common law or, alternatively, under the terms of the Royal Proclamation of 1763.

The Quebec Provincial Court, in a judg­ment reported [1988] R.J.Q. 1969, rejected the constitutional arguments and convicted the accused of the stipulated offences. The court held that the accused did not enjoy any right to hunt or fish within the Zone on the basis of an ancestral right connected to aboriginal title and had no treaty right to hunt or fish within the Zone. The court held that although the accused had an aboriginal right to hunt and fish for subsistence, the access fee regulation and licensing regu­lation did not unreasonably infringe the accused's s. 35(1) protected rights. The accused ap­pealed.

The Quebec Superior Court, in a judgment reported [1989] R.J.Q. 1893, affirmed the convictions. The accused appealed.

The Quebec Court of Appeal, in a judg­ment reported [1993] R.J.Q. 1350, Delisle, J.A., dissenting, dismissed the appeal. The court held that although the accused had a treaty right to hunt and fish within the Zone, the access fee regulation and licensing regu­lation were justifiable under the Sparrow test. The accused appealed their convictions. The Crown cross-appealed the Court of Ap­peal's finding of a treaty right to fish.

The Supreme Court of Canada allowed the appeal in part and dismissed the cross-appeal. The court affirmed the convictions for entering the Zone without paying the required access fee, but set aside Côté's conviction for fishing without a licence. The court held that the accused established an aboriginal right to fish for food within the Zone and that aboriginal rights could exist independently of aboriginal title. The li­censing requirement of the Quebec Fishery Regulations was an unjustified infringement of the aboriginal right, but the access fee requirement under the Regulation respecting Controlled Access was not an unjustified infringement.

Courts - Topic 3041

Supreme Court of Canada - Jurisdiction - Amendment of proceedings on own initia­tive - The accused were incorrectly charged and convicted under s. 5 of the Quebec Regulation respecting Controlled Access - The correct section was s. 5.1 - Throughout the trial and three appeals (the last to the Supreme Court of Canada) no party objected, was misled or irreparably prejudiced and all consented to an amend­ment - The evidence conformed to the correct charge - The accused admitted the constituent elements of s. 5.1 - The only issue was the constitutional validity of s. 5.1 - Section 48 of the Supreme Court of Canada Act gave the court a broad au­thority to amend proceedings on its own initiative - The Supreme Court of Canada amended the informations to stipulate that the accused were charged under s. 5.1 rather than s. 5 - See paragraphs 89 to 93.

Criminal Law - Topic 7275

Summary conviction proceedings - Informations - Amendments - General - [See Courts - Topic 3041 ].

Fish and Game - Topic 806.1

Indian, Inuit and Métis rights - Limita­tions - Licensing - Algonquin members of the Maniwaki reserve in Quebec had an aboriginal right to fish for food in a Con­trolled Harvest Zone - Section 4(1) of the Quebec Fishery Regulations required a licence to fish - The Supreme Court of Canada held that the Regulations infringed the aboriginal right to fish - The Regu­lations provided a blanket prohibition on fishing absent a licence - The Minister possessed a discretion to issue a special permit to an aboriginal person to fish for sustenance - However, the regulatory scheme did not structure the exercise of the discretionary power to ensure that it was exercised consistently with the Crown's special fiduciary duty to aborigi­nals - Section 4(1) and the surrounding provisions imposed undue hardship on aboriginals - The infringement was not justified, because it was not based on a compelling and substantial objective and failed to satisfy the Crown's fiduciary duty to aboriginal peoples since it provided no priority for the aboriginal right to fish - See paragraphs 73 to 83.

Fish and Game - Topic 806.3

Indian, Inuit and Métis rights - Limita­tions - Access fees - Algonquin members of the Maniwaki reserve in Quebec had an aboriginal right to fish for food in a Con­trolled Harvest Zone - Section 5.1 of the provincial Regulation respecting Con­trolled Access required a fee for motor vehicle access to the Zone - The fee par­tially covered the cost of maintaining the roads - Access was permitted, free of charge and without restriction, by any other mode of transportation - The Supreme Court of Canada held that the Regulation did not prima facie infringe the aboriginal right to fish for food - The Regulation did not create a blanket pro­hibition against motor vehicle access, nor did it subject access to an unstructured administrative discretion - The financial burden did not infringe aboriginal rights - The fee was not a revenue-generating tax, but a user fee for maintaining roads that facilitated, rather than restricted, the abo­riginal right to fish - See paragraphs 73 to 80.

Fish and Game - Topic 963

Indian, Inuit and Métis rights - Right to fish and regulation of Indian fishery - Effect of Constitution Act, 1982, s. 35(1) - At issue was whether the intervention of French sovereignty negated the potential existence of aboriginal rights within the former boundaries of New France under s. 35(1) of the Constitution Act, 1982 - The Supreme Court of Canada stated that "the purpose of s. 35(1) was to extend consti­tutional protection to the practices, cus­toms and traditions central to the distinc­tive culture of aboriginal societies prior to contact with Europeans. If such practices, customs and traditions continued following contact in the absence of specific ex­tinguishment, such practices, customs and traditions are entitled to constitutional recognition subject to the infringement and justification tests outlined in Sparrow ... and Gladstone. ... the fact that a particular practice, custom or tradition continued, in an unextinguished manner, following the arrival of Europeans but in the absence of the formal gloss of legal recognition from French colonial law should not undermine the constitutional protection accorded to aboriginal peoples. Section 35(1) would fail to achieve its noble purpose of pre­serving the integral and defining features of distinctive aboriginal societies if it only protected those defining features which were fortunate enough to have received the legal recognition and approval of European colonizers." - See paragraphs 51 to 52.

Fish and Game - Topic 976

Indian, Inuit and Métis rights - Right to fish and regulation of Indian fishery - Licensing - [See Fish and Game - Topic 806.1 ].

Indians, Inuit and Métis - Topic 506

Rights - Constitution Act, 1982, s. 35(1) - Interpretation - [See Fish and Game - Topic 963 ].

Indians, Inuit and Métis - Topic 4404

Treaties and proclamations - Effect of - Section 88 of the Indian Act provided that "subject to the terms of any treaty" pro­vincial laws of general application applied to Indians - The provincial Regulation respecting Controlled Access required aboriginal peoples to pay fees for motor vehicle access to a Controlled Access Zone, where they had an aboriginal right to fish for food - The Supreme Court of Canada stated that s. 88 had two purposes: (1) to make provincial laws, otherwise inapplicable, applicable to Indians and (2) to give federal statutory protection to aboriginal treaty rights - The court held that assuming, without deciding, that the Algonquin people of the Maniwaki reserve in Quebec had a treaty right to fish for food in the Controlled Harvest Zone, the impugned Regulation did not restrict or infringe that treaty right - See paragraphs 83 to 88.

Indians, Inuit and Métis - Topic 6003

Aboriginal rights - Protection of - The Supreme Court of Canada stated that "as a general rule, where a claimant challenges the application of a federal regulation under s. 35(1) [Constitution Act, 1982], the characterization of the right alter­natively as an aboriginal right or as a treaty right will not be of any consequence once the existence of the right is estab­lished, as the Sparrow test for infringe­ment and justi­fication applies with the same force and the same considerations to both species of constitutional rights ... However, in this instance, the appellants challenge a pro­vincial regulation which allegedly restricts their aboriginal or treaty right to fish with­in the Z.E.C. by imposing a financial bur­den on their access to the land in ques­tion. As such, even if the Regulation re­specting controlled zones is not found to infringe their constitutional rights unjusti­fiably under the Sparrow test for s. 35(1), if the right to fish is charac­terized as a treaty right, it may still be open to the appellants to challenge the provincial regulation un­der the federal statutory pro­tection ex­tended to aboriginal treaties under s. 88 of the Indian Act." - See paragraph 33.

Indians, Inuit and Métis - Topic 6012

Aboriginal rights - Proof of - The accused Algonquin Indians claimed an ancestral right to fish in a Controlled Har­vest Zone as an aboriginal right incidental to a claim of aboriginal title - The parties and lower courts collectively proceeded on the as­sumption that the claim of an abo­riginal right to fish rested on an underly­ing claim to aboriginal title over the terri­tory where the fishing occurred - The Supreme Court of Canada stated that "aboriginal rights may indeed exist inde­pendently of abo­riginal title" - Aboriginal title was simply one manifestation of the doctrine of abo­riginal rights - The court stated that "there is no a priori reason why the defining practices, customs and tradi­tions of such societies and communities should be limited to those practices, cus­toms and traditions which represent inci­dents of a continuous and historical occu­pation of a specific tract of land" - See paragraphs 35 to 39.

Indians, Inuit and Métis - Topic 6012

Aboriginal rights - Proof of - The Supreme Court of Canada, applying the R. v. Van der Peet test for establishing abo­riginal rights, held that Algonquin Indians on the Maniwaki reserve in Quebec estab­lished an aboriginal right to fish for food within the lakes and rivers of the Con­trolled Harvest Zone of Bras-Compé-Désert - The right claimed was the right to fish for food, which included the inci­dental aboriginal right to teach such a practice, custom or tradition to a younger generation - The right claimed was part of a practice, custom or tradition which was, prior to contact with Europeans in 1603, an integral part of the distinctive society of the Algonquin people - Further, there was "continuity" between the pre-contact practice, tradition and custom and a par­ticular practice, custom or tradition that was integral to aboriginal communities today - See paragraphs 55 to 71.

Indians, Inuit and Métis - Topic 6017

Aboriginal rights - Infringement - [See Fish and Game - Topic 806.1 and Fish and Game - Topic 806.3 ].

Indians, Inuit and Métis - Topic 6266

Government of Indians - What laws govern - Provincial laws of general appli­cation - [See Indians, Inuit and Métis - Topic 4404 ].

Cases Noticed:

R. v. Adams (G.W.) (1996), 202 N.R. 89 (S.C.C.), refd to. [para. 1].

R. v. Van der Peet (D.M.) (1996), 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81 (S.C.C.), refd to. [para. 3].

R. v. Gladstone (W.) et al. (1996), 200 N.R. 189; 79 B.C.A.C. 161; 129 W.A.C. 161 (S.C.C.), refd to. [para. 3].

R. v. N.T.C. Smokehouse Ltd. (1996), 200 N.R. 321; 80 B.C.A.C. 269; 130 W.A.C. 269 (S.C.C.), refd to. [para. 3].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 10].

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280, refd to. [para. 11].

R. v. Adams (G.W.), [1993] R.J.Q. 1011; 55 Q.A.C. 19 (C.A.), refd to. [para. 14].

Nishga Tribal Council v. British Columbia (Attorney General), [1973] S.C.R. 313, refd to. [para. 25].

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, refd to. [para. 33].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161; [1985] 1 C.N.L.R. 120, refd to. [para. 35].

Campbell v. Hall (1774), 1 Cowp. 204; 98 E.R. 1045 (P.C.), refd to. [para. 45].

Sammut v. Strickland, [1938] A.C. 678, refd to. [para. 45].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [1989] 1 S.C.R. 322; 92 N.R. 241; 25 F.T.R. 161, refd to. [para. 49].

Mabo v. Queensland (1992), 175 C.L.R. 1 (H.C.), refd to. [para. 53].

Baker Lake v. Minister of Indian Affairs and Northern Development, [1980] 1 F.C. 518 (T.D.), refd to. [para. 60].

R. v. Nikal (J.B.), [1996] 1 S.C.R. 1013; 196 N.R. 1; 74 B.C.A.C. 161; 121 W.A.C. 161, refd to. [para. 76].

R. v. Dick, [1985] 2 S.C.R. 309; 62 N.R. 1, refd to. [para. 86].

R. v. Kruger and Manuel, [1978] 1 S.C.R. 104; 15 N.R. 495, refd to. [para. 86].

R. v. Simon, [1985] 2 S.C.R. 387; 62 N.R. 366; 71 N.S.R.(2d) 15; 171 A.P.R. 15, refd to. [para. 86].

R. v. M.B.P., [1994] 1 S.C.R. 555; 165 N.R. 321; 70 O.A.C. 161; 113 D.L.R.(4th) 461, refd to. [para. 91].

R. v. Tremblay et autres, [1993] 2 S.C.R. 932; 156 N.R. 30; 57 Q.A.C. 161, refd to. [para. 91].

R. v. Vézina and Côté, [1986] 1 S.C.R. 2; 64 N.R. 93, refd to. [para. 91].

R. v. Morozuk, [1986] 1 S.C.R. 31; 64 N.R. 189; 68 A.R. 241, refd to. [para. 91].

Statutes Noticed:

Conservation and Development of Wildlife Act, S.Q. 1983, c. 39, generally [para. 7].

Conservation and Development of Wildlife Act Regulations (Que.), Regulation respecting Controlled Zones, R.R.Q. 1981 (Supp.), O.C. 426-82, sect. 5, sect. 5.1 [para. 7].

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

Controlled Zones Regulation - see Con­servation and Development of Wildlife Act Regulations (Que.).

Criminal Code, R.S.C. 1985, c. C-46, sect. 601 [para. 90].

Fisheries Act, R.S.C. 1985, c. F-14, gen­erally [para. 8].

Fisheries Act Regulations (Can.), Quebec Fishery Regulations, C.R.C., c. 852, sect. 4(1), sect. 5(3), sect. 5(9) [para. 8].

Indian Act, R.S.C. 1985, c. I-5, sect. 88 [para. 85].

Quebec Act, 1744, R.S.C. 1985, App. II, No. 2, generally [para. 13].

Quebec Fishery Regulations - see Fisheries Act Regulations (Can.).

Royal Proclamation, 1763, R.S.C. 1985, Appendix II, No. 1, generally [para. 9].

Summary Convictions Act, R.S.Q. 1977, c. P-15, sect. 66(1), sect. 82, sect. 101 [para. 90].

Supreme Court Act, R.S.C. 1985, c. S-26, sect. 48 [para. 90].

Authors and Works Noticed:

Boivin, Richard, Le droit des autochtones sur le territoire québecois et les effet du régime français (1995), 55 R. du B. 135, pp. 156 to 160 [para. 47].

Brun, Henri, Les droit des Indiens sur le territoire du Québec (1969), 10 C. de D. 415, pp. 428 to 430 [para. 44]; 442 [para. 46].

Brun, Henri, Le territoire du Québec: six études juridiques (1974), p. 64 [para. 44].

Canada, Royal Commission on Aboriginal Peoples, Partners in Confederation: Abo­riginal Peoples, Self-Government and the Constitution (1993), p. 20 [para. 49].

Eccles, W.J. Sovereignty - Association, 1500-1783 (1984), 65 Canadian Histori­cal Revue 475, pp. 480 to 487 [para. 47].

Green, L.C., and Dickason, Olive P., The Law of Nations and the New World (1989), p. 223 [para. 44].

Indian-Eskimo Association in Canada, Native Rights in Canada, Report of the Legal Committee of the Indian-Eskimo Association in Canada (Cumming, Peter A., and Mickenberg, Neil H. (eds.)) (1971), pp. 62 to 66, 83, 84 [para. 47].

Jaenen, Cornelius J., French Sovereignty and Native Nationhood during the French Régime, in Sweet Promises, A Reader on Indian-White Relations in Canada (Miller, J.R. (ed.)) (1991), p. 20 [para. 47].

MacFarlane, R.O., British Indian Policy in Nova Scotia to 1760 (1938), 19 Ca­nadian Historical Revue 154, pp. 160, 161 [para. 48].

MacNutt, W.S., The Atlantic Provinces: The Emergence of Colonial Society, 1712-1857 (1965), pp. 29, 30 [para. 48].

Slattery, Brian, Did France Claim Canada Upon Discovery?, in Interpreting Cana­da's Past (Bumstead, J.M. (ed.)) (1986), vol. 1, pp. 2 to 26 [para. 47].

Slattery, Brian, Understanding Aboriginal Rights (1987), 66 Can. Bar Rev. 727, pp. 737, 738 [para. 49]; 768, 769 [para. 47].

Stanley, G.F.G., The First Indian Reserves in Canada (1958), 4 Revue d'histoire de l'Amérique française 179, pp. 209, 210 [para. 44].

Stanley, G.F.G., New France, The Last Phase, 1744-1760 (1965), pp. 80 to 85 [para. 48].

Counsel:

Agnès Laporte, Richard Gaudreau and Michel Ste-Marie, for the appellants, respondents on cross-appeal;

René Morin and Pierre Lachance, for the respondent and the appellant on the cross-appeal;

Jean-Marc Aubry, Q.C. and Richard Boivin, for the intervener the Attorney General of Canada;

Paul Dionne and Anjali Choksi, for the intervener, Atikamekw-Sipi/Conseil de la Nation Atikamekw;

Alan Pratt and Paul Williams, for the interveners Chief Robert Whiteduck, on behalf of the Algonquins of Golden Lake First Nation and on behalf of others.

Solicitors of Record:

Agnès Laporte, Hull, Quebec, for the appellants;

Attorney General of Quebec, Sainte-Foy, for the respondent;

Attorney General of Canada, Ottawa, Ontario, for the intervener, the Attorney General of Canada;

Hutchins, Soroka & Dionne, Montreal, Quebec, for the intervener, Atikamekw-Sipi/Conseil de la Nation Atikamekw;

Alan, Pratt, Dunrobin, for the interveners, Chief Robert Whiteduct, on behalf of the Algonquins of Golden Lake First Nation and on behalf of others.

This appeal and cross-appeal were heard on June 17, 1996, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.

On October 3, 1996, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Lamer, C.J.C. (Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., concurring) - see paragraphs 1 to 95;

La Forest, J. - see paragraphs 96 to 97;

L'Heureux-Dubé, J. - see paragraph 98.