R. v. Catarat (H.) and Sylvestre (J.A.), 2001 SKCA 50

• Judge: Tallis, Cameron and Sherstobitoff, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: November 22, 2000
• Jurisdiction: Saskatchewan
• Citations: 2001 SKCA 50;(2001), 207 Sask.R. 57 (CA)

R. v. Catarat (H.) (2001), 207 Sask.R. 57 (CA);

    247 W.A.C. 57

MLB headnote and full text

Temp. Cite: [2001] Sask.R. TBEd. AP.010

Harry Catarat (deceased) and James Albert

Sylvestre (appellants) v. Her Majesty the Queen (respondent)

(No. 7869; 2001 SKCA 50)

Indexed As: R. v. Catarat (H.) and Sylvestre (J.A.)

Saskatchewan Court of Appeal

Tallis, Cameron and Sherstobitoff, JJ.A.

April 2, 2001.

Summary:

The accused were charged with entering a controlled access area while prohibited, contrary to s. 288 of the National Defence Act and Regulations, and with unlawfully hunting contrary to s. 28(1)(a) of the Wild­life Act. The accused were members of the Clear Lake Band/Buffalo River Dene Nation, which was a party to Treaty No. 10. They had been hunting on the Cold Lake Air Weapons Range. During the trial, the accused raised violations of ss. 6(2)(b), 7 and 15(1) of the Charter. The trial judge found that the Range had not been "taken up" within the intendment of the Treaty and the accused had a treaty right to hunt within the Range. The trial judge concluded that occupied Crown lands as described in s. 12 of the Natural Resources Transfer Agreement (NRTA) did nothing more than restate the words "taken up" in the Treaty and he was not required to undertake a separate analysis of both terms. In defining "taken up", the trial judge applied the "visibly incompatible" approach. The accused were acquitted of all charges. Costs of $500 were awarded against the federal and provincial Crowns. The trial judge considered and rejected the Charter infringement challenges. The Crown ap­pealed from the acquittals. The accused cross-appealed from the finding that their Charter rights had not been violated.

The Saskatchewan Court of Queen's Bench, in a decision reported at 191 Sask.R. 223, held that the trial judge erred in apply­ing the "visibly incompatible" approach in determining that the land had not been "taken up". The court held that the uses of the Range were incompatible with hunting even if they were not visible to hunters and that the Range was therefore not "unoccu­pied" Crown land within the meaning of s. 12 of the NRTA. However, the court held that it was still open to the trial judge to find that the accused had implied permission to hunt within the Range and, therefore, a right of access to it. The court allowed the Crown appeal, set aside the acquittals and remitted the matter to the trial judge for determi­nation of whether the accused had implied permission or any other right of access to the Range to hunt for food. The cross-appeal was dismissed. The award of costs against the Crown was set aside. The accused ap­pealed.

The Saskatchewan Court of Appeal dis­missed the appeal. The court affirmed that the Range was "occupied" within the mean­ing of s. 12 of the NRTA and that the "visibly incompatible" test was not relevant in making that determination. The court also held that it was not open to the Queen's Bench Judge to remit the issue of an implied right of access to the Range to the trial judge where that issue was not advanced at trial. The court entered a conviction on each charge against the accused Sylvestre. The accused Catarat had passed away and all proceedings against him were abated.

Criminal Law - Topic 82

Res judicata (multiple convictions for same subject matter precluded) - Bars to raising the defence - The Saskatchewan Court of Appeal entered convictions against an accused for charges of entering a con­trolled access area while prohibited, con­trary to the National Defence Act and Regulations, and unlawfully hunting, con­trary to the Wildlife Act - The accused had been hunting on the Cold Lake Air Weapons Range - The court stated that the "Kienapple" principle had no application to the offences before it - While the convic­tions arose from the same set of circum­stances, the elements of the offences were different - The offence of unlawful hunting arose under provincial legislation and the offence for trespassing upon the Range arose under federal regulations and legisla­tion - The accused would have been guilty of trespassing upon the Range whether he hunted or not - See paragraph 93.

Fish and Game - Topic 483

Right to hunt - Right of access to Crown lands - Occupied Crown lands - [See Fish and Game - Topic 851 ].

Fish and Game - Topic 850

Indian, Inuit and Métis rights - Right to hunt for food - Crown lands - Unoccupied - The Saskatchewan Court of Appeal held that the "visibly incompatible" approach was not relevant in determining whether the Cold Lake Air Weapons Range was "unoccupied" Crown land within the mean­ing of s. 12 of the Natural Resources Transfer Agreement (NRTA) - The court affirmed that the uses made of the Range were clearly incompatible with hunting even if the uses were not visible to hunters - Therefore, the Range was not unoccupied Crown land within s. 12 of the NRTA - See paragraphs 20 to 53.

Fish and Game - Topic 851

Indian, Inuit and Métis rights - Right to hunt for food - Implied permission to hunt - The accused were charged with entering a controlled access area while prohibited, contrary to the National Defence Act and Regulations, and with unlawfully hunting, contrary to the Wildlife Act - The accused were members of the Clear Lake Band/ Buffalo River Dene Nation - They had been hunting on the Cold Lake Air Wea­pons Range - The trial judge raised the issue of whether the accused had a right of access to the Range by virtue of custom or implied consent - The accused's counsel chose not to advance the defence relying instead on a treaty rights argument - On appeal, Krueger, J., suggested that a right of access by implied consent might have existed and remitted the matter to the trial judge for further argument on the point - The Saskatchewan Court of Appeal held that such a course of action was not open to Krueger, J. - The court stated that "[w]hen matters of this nature are raised for the first time on appeal, the court should decline to deal with the 'new' issue ... it is inappropriate to consider an issue not advanced at trial" - Further, "[i]n any event, the record supports the trial judge's conclusion that the evidence did not permit any finding that such a defence was avail­able" - See paragraphs 58 to 63.

Indians, Inuit and Métis - Topic 6260

Government - What laws govern - General - The accused were members of the Clear Lake Band/Buffalo River Dene Nation - They argued that the Natural Resources Transfer Agreement (NRTA) had no appli­cation to the provincial wildlife offences alleged against them because they occurred on federal Crown land (the Cold Lake Air Weapons Range) - The Saskatchewan Court of Appeal rejected the submission - The court stated that "[t]he Range is pro­vincial Crown land that has been leased to Canada for use as a military base ... Para­graph 12 of the NRTA deals with the application of provincial game laws to Indians throughout the Province. Its appli­cation is not confined to Indians on provin­cial Crown lands or privately owned lands, as distinct from Federal Crown lands" - See paragraphs 83 to 84.

Trials - Topic 1198

Summary convictions - Appeals - Restric­tions on argument on appeal - [See Fish and Game - Topic 851 ].

Cases Noticed:

R. v. Marshall (D.J.), [1999] 3 S.C.R. 533; 247 N.R. 306; 179 N.S.R.(2d) 1; 553 A.P.R. 1, refd to. [para. 6].

Mitchell and Milton Management Ltd. v. Peguis Indian Band et al., [1990] 2 S.C.R. 85; 110 N.R. 241; 67 Man.R.(2d) 81; [1990] 3 C.N.L.R. 46; [1990] 5 W.W.R. 97; 71 D.L.R.(4th) 193, consd. [para. 44].

R. v. Horseman, [1990] 1 S.C.R. 901; 108 N.R. 1; 108 A.R. 1, refd to. [para. 46].

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; 105 C.C.C.(3d) 289, consd. [para. 48].

R. v. Smith, [1935] 2 W.W.R. 433 (Sask. C.A.), refd to. [para. 51].

R. v. Strongquill (1953), 8 W.W.R.(N.S.) 247 (Sask. C.A.), refd to. [para. 52].

R. v. Perka, Nelson, Hines and Johnson, [1984] 2 S.C.R. 232; 55 N.R. 1; 14 C.C.C.(3d) 385; 13 D.L.R.(4th) 1; [1984] 6 W.W.R. 289; 42 C.R.(3d) 113, refd to. [para. 62].

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193; 18 C.C.L.T.(2d) 209; 110 D.L.R.(4th) 289; [1994] 2 W.W.R. 609; 87 B.C.L.R.(2d) 1, refd to. [para. 62].

R. v. Kakakaway (S.J.) (1996), 68 B.C.A.C. 249; 112 W.A.C. 249 (C.A.), refd to. [para. 62].

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. 64].

R. v. Moosehunter, [1981] 1 S.C.R. 282; 36 N.R. 437; 9 Sask.R. 149, refd to. [para. 64].

R. v. Wolverine and Bernard, [1989] 4 W.W.R. 467; 74 Sask.R. 224 (C.A.), refd to. [para. 68].

Cardinal v. Alberta (Attorney General), [1974] S.C.R. 695, consd. [para. 85].

R. v. Smith, [1942] 3 D.L.R. 764 (Ont. C.A.), consd. [para. 88].

R. v. Greyeyes (E.R.), [1997] 2 S.C.R. 825; 214 N.R. 43; 152 Sask.R. 294; 140 W.A.C. 294, refd to. [para. 91].

R. v. Morin (K.M.), [1992] 3 S.C.R. 286; 142 N.R. 141; 131 A.R. 81; 25 W.A.C. 81; 76 C.C.C.(3d) 193; 16 C.R.(4th) 291, refd to. [para. 91].

R. v. Niemi, [1998] O.A.C. Uned. 52 (C.A.), refd to. [para. 91].

R. v. Kearley (No. 2), [1994] 1 W.L.R. 555 (C.A.), refd to. [para. 91].

Mercure v. Saskatchewan, [1988] 1 S.C.R. 234; 83 N.R. 81; 65 Sask. R. 1; [1988] 2 W.W.R. 577; 39 C.C.C.(3d) 385; 48 D.L.R.(4th) 1, refd to. [para. 92].

R. v. Mercure - see Mercure v. Saskatche­wan.

R. v. Jetté (1999), 141 C.C.C.(3d) 52; 182 D.L.R.(4th) 454 (Que. C.A.), refd to. [para. 92].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322; 15 C.C.C.(2d) 524; 26 C.R.N.S. 1; 44 D.L.R.(3d) 351, refd to. [para. 93].

R. v. Prince, [1986] 2 S.C.R. 480; 70 N.R. 119; 45 Man.R.(2d) 93; 30 C.C.C.(3d) 35; 33 D.L.R.(4th) 724, refd to. [para. 93].

R. v. Bonaise, Tootoosis and Tootoosis (1987), 53 Sask.R. 208 (C.A.), refd to. [para. 93].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; 105 C.C.C.(3d) 327; 46 C.R.(4th) 269, refd to. [para. 96].

Counsel:

Bruce J. Slusar, for the appellants;

Douglas G. Curliss, for the respondent;

P. Mitch McAdam, for Saskatchewan Justice.

This appeal was heard on November 22, 2000, before Tallis, Cameron and Sherstobi­toff, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the Court of Appeal was delivered by Tallis, J.A., on April 2, 2001.