R. v. Campbell (G.R.), (1996) 113 Man.R.(2d) 288 (CA)

• Judge: Huband, Twaddle and Kroft, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: December 20, 1996
• Jurisdiction: Manitoba
• Citations: (1996), 113 Man.R.(2d) 288 (CA)

R. v. Campbell (G.R.) (1996), 113 Man.R.(2d) 288 (CA);

    131 W.A.C. 288

MLB headnote and full text

Garry Ronald Campbell (applicant/appellant) v. Her Majesty The Queen (respondent)

(Suit No. A.R. 96-30-02625)

Indexed As: R. v. Campbell (G.R.)

Manitoba Court of Appeal

Huband, Twaddle and Kroft, JJ.A.

December 20, 1996.

Summary:

The accused was charged with being in­toxicated on an Indian reserve, contrary to a bylaw passed by the reserve under s. 85.1(4) of the Indian Act. The accused moved to quash the information on the basis that s. 85.1 and the bylaw contravened ss. 7 and 15 of the Charter and s. 1(b) of the Canadian Bill of Rights.

The Manitoba Court of Queen's Bench, in a decision reported 106 Man.R.(2d) 135, dismissed the motion. The accused appealed.

The Manitoba Court of Appeal dismissed the appeal.

Civil Rights - Topic 658

Liberty - Limitations on - Liquor control - Section 85.1 of the Indian Act autho­rized Indian band councils to pass bylaws prohibiting possession of intoxicants and intoxication on their reserve and prescribed sanctions for contraventions of the bylaws - An accused claimed that the prohibition violated his s. 7 Charter rights by (i) cre­ating offences which were exceedingly vague; (ii) denying him a choice of life­style; and sanctioning imprisonment as a punishment for an offence which involved no wrong - The Manitoba Court of Appeal affirmed that s. 85.1 and the bylaw did not violate the accused's s. 7 Charter rights - See paragraphs 25 to 45.

Civil Rights - Topic 658

Liberty - Limitations on - Liquor control - Section 85.1 of the Indian Act autho­rized Indian band councils to pass bylaws prohibiting possession of intoxicants and intoxication on their reserve and prescribed sanctions for contraventions of the bylaws - An accused claimed that the prohibition violated his right to liberty under s. 7 of the Charter by denying him his "choice of lifestyle" - The Manitoba Court of Appeal opined that it was doubtful that liberty could be defined so broadly - The court held that even if the ban was a restriction on liberty it did not violate s. 7 - The law was passed by the band to ameliorate an intoxicant abuse problem faced by the reserve - The court held that the law was not overbroad - See paragraphs 34 to 41.

Civil Rights - Topic 725

Liberty - Charter of Rights and Freedoms - Liberty defined - [See second Civil Rights - Topic 658 ].

Civil Rights - Topic 726

Liberty - Charter of Rights and Freedoms - Denial of liberty - What constitutes - [See second Civil Rights - Topic 658 ].

Civil Rights - Topic 1034

Discrimination - Race and national or ethnic origin - Indians - Section 85.1 of the Indian Act authorized bands to pass bylaws prohibiting intoxication on Indian reserves - An accused argued that s. 85.1 was discriminatory and therefore violated s. 15 of the Charter and s. 1(b) of the Bill of Rights - The Manitoba Court of Appeal held that s. 85.1 was not discriminatory - The court stated that "(i) It is a law passed within the ambit of s. 91(24) of the Con­stitutional Act, 1867 for the governance of Indians and lands reserved for them; (ii) The prohibitions it authorizes were not imposed ... by other Canadians through Parliament, but freely adopted by those to whom it primarily applies ...; (iii) It does not authorize a band to make different laws for different people, but only to make an enforceable policy choice for the gov­ernance of all people on the reserve" - See paragraphs 10 to 21.

Civil Rights - Topic 1034

Discrimination - Race and national or ethnic origin - Indians - Section 85.1 of the Indian Act authorized bands to pass bylaws prohibiting intoxication on Indian reserves - An accused argued that a bylaw passed under s. 85.1 was discriminatory and therefore violated s. 15 of the Charter and s. 1(b) of the Bill of Rights - The Manitoba Court of Appeal held that the bylaw was not discriminatory - Although it imposed a ban on intoxicants and in­toxication which affected Indians dispro­portionately to others, it was part of a per­missible scheme for the governance of the reserve and did not single out Indians as those to whom it applied - The ban was not imposed to society at large but by the reserve Indians themselves - See para­graphs 22 to 23.

Civil Rights - Topic 3107

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Void for vagueness doctrine - Section 85.1 of the Indian Act autho­rized Indian band councils to pass bylaws prohibiting intoxication on their reserve - An accused asserted that the law prohibit­ing intoxicants and intoxication on the reserve created by s. 85.1 and the bylaw violated s. 7 of the Charter because it was impermissibly vague - The Manitoba Court of Appeal affirmed that the law was not void for vagueness - See paragraphs 26 to 33.

Civil Rights - Topic 5646

Equality and protection of the law - Par­ticular cases - Indians - [See both Civil Rights - Topic 1034 ].

Indians, Inuit and Métis - Topic 6230.2

Government of Indians - Band councils - Bylaws - Alcohol - Section 85.1 of the Indian Act authorized Indian band councils to pass bylaws prohibiting possession of intoxicants and intoxication on their reserve and prescribed sanctions for contraventions of the bylaws - An accused charged under such a bylaw claimed that the prohibition violated his ss. 7 and 15 Charter rights and his rights under s. 1(b) of the Bill of Rights - The Manitoba Court of Appeal held that the prohibition did not violate the accused's rights.

Cases Noticed:

Thorson v. Canada (Attorney General), [1975] 1 S.C.R. 138; 1 N.R. 225; 43 D.L.R.(3d) 1, refd to. [para. 8].

Canard Estate et al. v. Canada (Attorney General), [1976] 1 S.C.R. 170; 4 N.R. 91, refd to. [para. 12].

Reference Re Roman Catholic Separate High Schools Funding, [1987] 1 S.C.R. 1148; 77 N.R. 241; 22 O.A.C. 321, refd to. [para. 13].

Reference Re Bill 30, An Act to Amend the Education Act (Ont.) - see Reference Re Roman Catholic Separate High Schools Funding.

New Brunswick Broadcasting Co. and Canadian Broadcasting Corp. v. Speaker of the House of Assembly (N.S.) et al., [1993] 1 S.C.R. 319; 146 N.R. 161; 118 N.S.R.(2d) 181; 327 A.P.R. 181, refd to. [para. 13].

R. v. Drybones, [1970] S.C.R. 282, refd to. [para. 14].

R. v. Hayden (1983), 23 Man.R.(2d) 315; 8 C.C.C.(3d) 33 (C.A.), refd to. [para. 14].

R. v. Lefthand (1985), 66 A.R. 331; 19 C.C.C.(3d) 534 (C.A.), refd to. [para. 20].

Andrews v. Law Society of British Co­lumbia, [1989] 1 S.C.R. 143; 91 N.R. 255; 56 D.L.R.(4th) 1, refd to. [para. 21].

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91; 74 C.C.C.(3d) 289, refd to. [para. 26].

Reference Re Intoxicated Persons Deten­tion Act (1980), 55 C.C.C.(2d) 130 (Man. C.A.), refd to. [para. 29].

R. v. Blackplume (C.) (1993), 135 A.R. 265; 33 W.A.C. 265; 7 Alta. L.R.(3d) 285 (C.A.), refd to. [para. 33].

R. v. Jones, [1986] 2 S.C.R. 284; 69 N.R. 241; 73 A.R. 133, refd to. [para. 35].

R. v. Heywood (R.L.), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161, refd to. [para. 36].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; [1986] 1 W.W.R. 481; 23 C.C.C.(3d) 289; 48 C.R.(3d) 289; 24 D.L.R.(4th) 536; 36 M.V.R. 240; 69 B.C.L.R.(2d) 145; 18 C.R.R. 30, refd to. [para. 42].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1(b), sect. 7, sect. 15 [para. 2].

Constitution Act, 1867, sect. 91(24) [para. 8].

Indian Act, R.S.C. 1985, c. I-5, sect. 85.1 [para. 1].

Counsel:

K.M. McCaffrey and C.A.R. Kennedy, for the appellant;

D.R. Davis, for the respondent.

This appeal was heard on November 12 and 13, 1996, by Huband, Twaddle and Kroft, JJ.A., of the Manitoba Court of Appeal.

The following decision of the court was delivered by Twaddle, J.A., on December 20, 1996.