R. v. Creekside Hideaway Motel Ltd. et al., (2006) 206 Man.R.(2d) 168 (QB)

• Judge: Clearwater, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: August 14, 2006
• Jurisdiction: Manitoba
• Citations: (2006), 206 Man.R.(2d) 168 (QB);2006 MBQB 185

R. v. Creekside Hideaway Motel (2006), 206 Man.R.(2d) 168 (QB)

MLB headnote and full text

Temp. Cite: [2006] Man.R.(2d) TBEd. AU.032

In The Matter Of: The Appeal Of Robert Jenkinson

Robert Jenkinson (appellant) v. Her Majesty The Queen (respondent)

(CR 05-03-00091)

In The Matter Of: The Appeal Of Creekside Hideaway Motel Ltd.

Creekside Hideaway Motel Ltd. (appellant) v. Her Majesty The Queen (respondent)

(CR 05-03-00092; 2006 MBQB 185)

Indexed As: R. v. Creekside Hideaway Motel Ltd. et al.

Manitoba Court of Queen's Bench

Portage la Prairie Centre

Clearwater, J.

August 14, 2006.

Summary:

A motel and its proprietor were charged with allowing smoking on the premises contrary to the Non-Smokers Health Protection Act (Man.). The accused challenged the validity of the legislation and the individual accused argued that the Act violated his s. 15 Charter rights.

The Manitoba Provincial Court, in a decision reported at 198 Man.R.(2d) 105, upheld the validity of the Act, rejected the Charter argument and convicted the accused. The accused appealed.

The Manitoba Court of Queen's Bench allowed the appeal, set aside the convictions and acquitted the accused.

Civil Rights - Topic 1034

Discrimination - Race and national or ethnic origin - Indians - [See Civil Rights - Topic 5679.15 ].

Civil Rights - Topic 5646

Equality and protection of the law - Particular cases - Indians and Metis - [See Civil Rights - Topic 5679.15 ].

Civil Rights - Topic 5679.15

Equality and protection of the law - Particular cases - Gaming, lotteries, VLTs, etc. - A motel which had eight VLTs and its proprietor were charged with allowing smoking on the premises contrary to the Non-Smokers Health Protection Act (Man.) - The proprietor alleged that he lost business because former VLT patrons were now going to establishments on Indian Reserves which were exempt from the Act under s. 9.4 - The proprietor argued that his equality rights under s. 15(1) of the Charter were infringed because the Act did not apply "on lands reserved for Indians" - The trial judge rejected the argument - The Manitoba Court of Queen's Bench allowed an appeal and acquitted the accused - The accused were subjected to differential treatment in the conduct of their business and with respect to their right to work and earn their livelihood on the analogous ground of aboriginality-residence - The exemption in s. 9.4 discriminated against people (essentially non-aboriginal persons) who owned and operated similar businesses off reserve lands - The dignity and self-worth of the accused was detrimentally effected - The Act adversely affected the business interests of the accused and their right to compete in lawful economic activities with their neighbours on a level playing field - The exemption for Indian Reserves could not be demonstrably justified in a free and democratic society - The court struck out s. 9.4 of the Act.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 5679.15 ].

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues (incl. standing) - A motel which had eight VLTs and its proprietor were charged with allowing smoking on the premises contrary to the Non-Smokers Health Protection Act (Man.) - The proprietor alleged that he lost business because former VLT patrons were now going to establishments on Indian Reserves which were exempt from the Act under s. 9.4 - The proprietor argued that his equality rights under s. 15(1) of the Charter were infringed because the Act did not apply "on lands reserved for Indians" - The Crown argued that the accused did not have standing because s. 15 did not apply to a corporation and the proprietor could not bring an inequality claim on behalf of aboriginal people as he was essentially attempting to do - The Manitoba Court of Queen's Bench rejected the arguments - Although s. 15 might not apply to a corporation, a corporation could not be convicted of an offence, criminal or regulatory, for breaching a law that was unconstitutional or invalid - The accused were not attempting to seek relief on behalf of aboriginal people (who were entitled to the equal application of and benefit of laws such as this to protect their health) - Rather, that was simply a fact to be considered in the context of all of the provisions of the Act in determining whether there was a breach of the accused's s. 15(1) rights - See paragraphs 9 and 15.

Cases Noticed:

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 8].

Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161, refd to. [para. 8, Schedule A].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 8, Schedule A].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 9, Schedule A].

Corbière et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1, refd to. [para. 13, Schedule A].

R. v. Catagas (1977), 38 C.C.C.(2d) 296 (Man. C.A.), refd to. [para. 21, Schedule A].

Baril v. Obelnicki (2004), 183 Man.R.(2d) 118 (Q.B.), refd to. [para. 25, Schedule A].

Multani v. Commission scolaire Marguerite-Bourgeoys et al. (2006), 345 N.R. 201 (S.C.C.), consd. [Schedule A].

Susan Doe v. Canada (Attorney General) et al., [2006] O.T.C. 56 (Sup. Ct.), consd. [Schedule A].

M.D.R. v. Deputy Registrar General (Ont.), [2006] O.T.C. 489 (Sup. Ct.), consd. [Schedule A].

Chénier v. Canada (Attorney General) et al., [2005] O.T.C. 562 (Sup. Ct.), consd. [Schedule A].

Saskatchewan Hotels Association v. Saskatchewan (2005), 272 Sask.R. 257 (Q.B.), consd. [Schedule A].

Yankson v. Canada, [2005] T.C.J. No. 567 (T.C.C.), consd. [Schedule A].

R. v. Kapp (J.M.) et al., [2004] B.C.T.C. 958 (S.C.), affd. (2006), 227 B.C.A.C. 248; 374 W.A.C. 248 (C.A.), consd. [Schedule A].

Hodge v. Canada (Minister of Human Resources Development) (2004), 326 N.R. 201 (S.C.C.), consd. [Schedule A].

Auton et al. v. British Columbia (Minister of Health) et al., [2004] 3 S.C.R. 657; 327 N.R. 1; 206 B.C.A.C. 1; 338 W.A.C. 1, consd. [Schedule A].

Siemens et al. v. Manitoba (Attorney General) et al. (2002), 299 N.R. 267; 173 Man.R.(2d) 1; 293 W.A.C. 1 (S.C.C.), consd. [Schedule A].

Paul v. Forest Appeals Commission (B.C.) et al. (2003), 310 N.R. 122; 187 B.C.A.C. 1; 307 W.A.C. 1 (S.C.C.), consd. [Schedule A].

Canadian Western Bank et al. v. Alberta (2003), 343 A.R. 89 (Q.B.), consd. [Schedule A].

Gosselin v. Quebec (Procureur général), [2002] 4 S.C.R. 429; 298 N.R. 1, consd. [Schedule A].

Walsh v. Bona, [2002] 4 S.C.R. 325; 297 N.R. 203; 210 N.S.R.(2d) 273; 659 A.P.R. 273, consd. [Schedule A].

Nova Scotia (Attorney General) v. Walsh - see Walsh v. Bona.

Lavoie et al. v. Canada et al., [2002] 1 S.C.R. 769; 284 N.R. 1, consd. [Schedule A].

Kitkatla Indian Band et al. v. British Columbia (Minister of Small Business, Tourism and Culture) et al. (2002), 286 N.R. 131; 165 B.C.A.C. 1; 270 W.A.C. 1 (S.C.C.), consd. [Schedule A].

Winko v. Forensic Psychiatric Institute (B.C.) et al., [1999] 2 S.C.R. 625; 241 N.R. 1; 124 B.C.A.C. 1; 203 W.A.C. 1, consd. [Schedule A].

Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, consd. [Schedule A].

Moore v. Canada, [1997] T.C.J. No. 953 (T.C.C.), consd. [Schedule A].

Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; 208 N.R. 81, consd. [Schedule A].

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253, consd. [Schedule A].

Haig et al. v. Canada; Haig et al. v. Kingsley, [1993] 2 S.C.R. 995; 156 N.R. 81, consd. [Schedule A].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, consd. [Schedule A].

R. v. Turpin, Siddiqui and Clauzel, [1989] 1 S.C.R. 1296; 96 N.R. 115; 34 O.A.C. 115, consd. [Schedule A].

Dumville Restaurants Ltd. v. Prince Edward Island (Minister of Finance and Tourism) (1989), 77 Nfld. & P.E.I.R. 291; 240 A.P.R. 291 (P.E.I.T.D.), consd. [Schedule A].

R. v. Dick, [1985] 2 S.C.R. 309; 62 N.R. 1, consd. [Schedule A].

Four B Manufacturing Ltd. v. United Garment Workers of America et al. (1979), 30 N.R. 421; 102 D.L.R.(3d) 385 (S.C.C.), consd. [Schedule A].

Director of Child Welfare (Man.) v. B., [1979] 6 W.W.R. 229 (Man. Prov. Ct.), consd. [Schedule A].

R. v. Kruger and Manuel (1977), 15 N.R. 495; 75 D.L.R.(3d) 434 (S.C.C.), consd. [Schedule A].

Statutes Noticed:

Non-Smokers Health Protection Act, S.M. 1989-90, c. 41; C.C.S.M., c. S-125, sect. 9.4 [para. 7].

Counsel:

Arthur J. Stacey and Drew Mitchell, for the appellants, Jenkinson and Creekside Hideaway Motel Ltd.;

Cynthia Devine and Lisa Cupples, for the Crown.

These appeals were heard by Clearwater, J., of the Manitoba Court of Queen's Bench, Portage la Prairie Centre, who delivered the following judgment on August 14, 2006.