R. v. Fiddler (T.), (1992) 102 Sask.R. 262 (ProvCt)

JudgeOrr, P.C.J.
CourtProvincial Court of Saskatchewan (Canada)
Case DateMarch 27, 1992
JurisdictionSaskatchewan
Citations(1992), 102 Sask.R. 262 (ProvCt)

R. v. Fiddler (T.) (1992), 102 Sask.R. 262 (ProvCt)

MLB headnote and full text

Her Majesty The Queen v. Tom Fiddler

Indexed As: R. v. Fiddler (T.)

Saskatchewan Provincial Court

Orr, P.C.J.

March 27, 1992.

Summary:

An Indian was charged with starting an outdoor fire without taking sufficient pre­cautions to ensure the fire could be kept under control, contrary to s. 15(a) of the Prairie and Forest Fires Act, 1982 and also with starting an outdoor fire without a burn­ing permit contrary to s. 17(1) of the Act. The fire occurred on an Indian Reserve. Defence counsel argued that the sections were ultra vires the provincial legislature insofar as lands reserved for Indians were concerned.

The Saskatchewan Provincial Court held that s. 17(1) was not ultra vires the province however s. 15(a) was outside the powers of the provincial legislature insofar as Indian lands were concerned.

Constitutional Law - Topic 505

Powers of parliament and legislatures - Exclusive legislative powers - Federal powers - Invalidity of provincial legisla­tion - An Indian was charged with starting an outdoor fire without taking sufficient precautions, contrary to s. 15(a) of the Prairie and Forest Fires Act, 1982 - The fire occurred on an Indian Reserve - The Saskatchewan Provincial Court held that s. 15(a) was ultra vires the provincial legis­lature insofar as lands reserved for Indians were concerned - Section 15(a) was a law of general application which did not apply to the accused because it regulated the use of land reserved for Indians - It did not apply via s. 88 of the Indian Act because s. 88 does not refer to lands reserved for Indians - See paragraphs 57 to 90.

Constitutional Law - Topic 505

Powers of parliament and legislatures - Exclusive legislative powers - Federal powers - Invalidity of provincial legisla­tion - An Indian was charged with start­ing an outdoor fire without a burning permit contrary to s. 17(1) of the Prairie and Forest Fires Act, 1982 - The fire occurred on an Indian Reserve - Defence counsel argued that s. 17(1) was ultra vires the provincial legislature insofar as lands reserved for Indians were concerned - The Saskatchewan Provincial Court held that s. 17(1) was not ultra vires and it applied ex proprio vigore to the accused - Section 17(1) was a law of general application which regulated the activities of individ­uals, not land use, and it did not affect the accused's Indian status or identity - See paragraphs 52 to 56.

Constitutional Law - Topic 6354

Federal jurisdiction - Indians and lands reserved for Indians - Use of land in reserves - An Indian was charged with starting an outdoor fire without taking sufficient precautions, contrary to s. 15(a) of the Prairie and Forest Fires Act, 1982 - The fire occurred on an Indian Reserve - The Saskatchewan Provincial Court held that s. 15(a) was ultra vires the provincial legislature insofar as lands reserved for Indians were concerned - Section 15(a) was a law of general application which did not apply to the accused because it regu­lated the use of land reserved for Indians - It did not apply via s. 88 of the Indian Act because s. 88 does not refer to lands reserved for Indians - See para­graphs 57 to 90.

Constitutional Law - Topic 6354

Federal jurisdiction - Indians and lands reserved for Indians - Use of land in reserves - An Indian was charged with starting an outdoor fire without a burning permit contrary to s. 17(1) of the Prairie and Forest Fires Act, 1982 - The fire occurred on an Indian Reserve - Defence counsel argued that s. 17(1) was ultra vires the provincial legislature insofar as lands reserved for Indians were concerned - The Saskatchewan Provincial Court held that s. 17(1) was not ultra vires and it applied ex proprio vigore to the accused - Section 17(1) was a law of general application which regulated the activities of individ­uals, not land use, and it did not affect the accused's Indian status or identity - See paragraphs 52 to 56.

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - General - Interpretation - The Saskatchewan Provincial Court referred to the principle that treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of Indians - The Court held that the Indian Act must be read liberally and generously - See para­graphs 80 and 81.

Indians, Inuit and Métis - Topic 6266

Government of Indians - What laws gov­ern - Provincial laws of general applica­tion - An Indian was charged with starting an outdoor fire without taking sufficient precautions, contrary to s. 15(a) of the Prairie and Forest Fires Act, 1982 - The fire occurred on an Indian Reserve - The Saskatchewan Provincial Court held that s. 15(a) was ultra vires the provincial legis­lature insofar as lands reserved for Indians were concerned - Section 15(a) was a law of general application which did not apply to the accused because it regulated the use of land reserved for Indians - It did not apply via s. 88 of the Indian Act because s. 88 does not refer to lands reserved for Indians - See paragraphs 57 to 90.

Indians, Inuit and Métis - Topic 6266

Government of Indians - What laws gov­ern - Provincial laws of general applica­tion - An Indian was charged with start­ing an outdoor fire without a burning permit contrary to s. 17(1) of the Prairie and Forest Fires Act, 1982 - The fire occurred on an Indian Reserve - Defence counsel argued that s. 17(1) was ultra vires the provincial legislature insofar as lands reserved for Indians were concerned - The Saskatchewan Provincial Court held that s. 17(1) was not ultra vires and it applied ex proprio vigore to the accused - Section 17(1) was a law of general application which regulated the activities of individ­uals, not land use, and it did not affect the accused's Indian status or identity - See paragraphs 52 to 56.

Indians, Inuit and Métis - Topic 6267

Government of Indians - What laws gov­ern - Conflict between federal and provin­cial law - An Indian was charged with starting an outdoor fire without taking sufficient precautions, contrary to s. 15(a) of the Prairie and Forest Fires Act, 1982 - The fire occurred on an Indian Reserve - The Saskatchewan Provincial Court held that s. 15(a) was ultra vires the provincial legislature insofar as lands reserved for Indians were concerned - Section 15(a) was a law of general application which did not apply to the accused because it regu­lated the use of land reserved for Indians - It did not apply via s. 88 of the Indian Act because s. 88 does not refer to lands reserved for Indians - See para­graphs 57 to 90.

Indians, Inuit and Métis - Topic 6267

Government of Indians - What laws gov­ern - Conflict between federal and provin­cial law - An Indian was charged with starting an outdoor fire without a burning permit contrary to s. 17(1) of the Prairie and Forest Fires Act, 1982 - The fire occurred on an Indian Reserve - Defence counsel argued that s. 17(1) was ultra vires the provincial legislature insofar as lands reserved for Indians were concerned - The Saskatchewan Provincial Court held that s. 17(1) was not ultra vires and it applied ex proprio vigore to the accused - Section 17(1) was a law of general application which regulated the activities of individ­uals, not land use, and it did not affect the accused's Indian status or identity - See paragraphs 52 to 56.

Cases Noticed:

Surrey (District) v. Peace Arch Enterprises Ltd. (1970), 74 W.W.R.(N.S.) 380 (B.C.C.A.), consd. [paras. 7 - 9].

Cardinal v. Attorney General of Alberta, [1973] 6 W.W.R. 205 (S.C.C.), consd. [paras. 10 - 19].

R. v. Kruger and Manuel (1977), 34 C.C.C.(2d) 377; 15 N.R. 495 (S.C.C.), consd. [paras. 20 - 23].

R. v. Dick, [1985] 2 S.C.R. 309; 62 N.R. 1, consd. [paras. 24 - 26].

R. v. Isaac (1975), 13 N.S.R.(2d) 460; 9 A.P.R. 460 (N.S.C.A.), consd. [paras. 42 - 47].

Derrickson v. Derrickson, [1986] 1 S.C.R. 285; 65 N.R. 278, consd. [para. 48].

R. v. Duncan Supermarket Ltd. et al., [1982] 4 W.W.R. 181 (B.C.S.C.), refd to. [para. 49].

R. v. Sinclair, [1978] 6 W.W.R. 37 (Man. Prov. Ct.), disagreed with [para. 52].

Natural Parents v. Superintendant of Child Welfare, [1976] 1 W.W.R. 699; 6 N.R. 491(S.C.C.), consd. [paras. 69 - 72].

Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85; 110 N.R. 241, folld. [para. 80].

R. v. Sioui (1990), 56 C.C.C.(3d) 225; 109 N.R. 22 (S.C.C.), refd to. [para. 84].

Statutes Noticed:

Prairie and Forest Fires Act, 1982, S.S. 1982-83, c. P-22.1, sect. 15(a) [para. 1]; sect. 17(1) [para. 2].

Constitutional Questions Act, R.S.S. 1978, c. C-29, generally [para. 4].

Constitution Act, 1867, sect. 91(24) [para. 5].

Constitution Act, 1982, sect. 91(24) [para. 5].

Indian Act, R.S.C. 1985, c. I-5, sect. 88 [para. 6].

Prairie and Forest Fires Act, 1982, S.S. 1982-83, c. P-22.1, sect. 15(a) [para. 1]; sect. 17(1) [para. 2].

Wildlife Act, R.S.A. 1980, c. W-9, gen­erally [para. 25]

Counsel:

J. Taylor, for the Crown;

D.G. Kohlenberg, for the defendant.

This case was heard before Orr, P.C.J., of the Saskatchewan Provincial Court, who delivered the following oral judgment on March 27, 1992.

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2 practice notes
  • R. v. Fiddler (T.), (1993) 108 Sask.R. 5 (QB)
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • 5 d2 Janeiro d2 1993
    ...provincial legislature insofar as lands reserved for Indians were concerned. The Saskatchewan Provincial Court, in a decision reported 102 Sask.R. 262, held that s. 17(1) was not ultra vires the province, however, s. 15(a) was outside the powers of the provincial legislature insofar as Indi......
  • R. v. Fiddler (T.), (1993) 108 Sask.R. 1 (QB)
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • 5 d2 Janeiro d2 1993
    ...provincial legislature insofar as lands reserved for Indians were concerned. The Saskatchewan Provincial Court, in a decision reported 102 Sask.R. 262, held that s. 17(1) was not ultra vires the province, however, s. 15(a) was outside the powers of the provincial legislature insofar as Indi......
2 cases
  • R. v. Fiddler (T.), (1993) 108 Sask.R. 5 (QB)
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • 5 d2 Janeiro d2 1993
    ...provincial legislature insofar as lands reserved for Indians were concerned. The Saskatchewan Provincial Court, in a decision reported 102 Sask.R. 262, held that s. 17(1) was not ultra vires the province, however, s. 15(a) was outside the powers of the provincial legislature insofar as Indi......
  • R. v. Fiddler (T.), (1993) 108 Sask.R. 1 (QB)
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • 5 d2 Janeiro d2 1993
    ...provincial legislature insofar as lands reserved for Indians were concerned. The Saskatchewan Provincial Court, in a decision reported 102 Sask.R. 262, held that s. 17(1) was not ultra vires the province, however, s. 15(a) was outside the powers of the provincial legislature insofar as Indi......

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