R. v. Gladstone (W.) et al., (1996) 200 N.R. 189 (SCC)

• Judge: Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: August 21, 1996
• Jurisdiction: Canada (Federal)
• Citations: (1996), 200 N.R. 189 (SCC);1996 CanLII 160 (SCC);23 BCLR (3d) 155;200 NR 189;[1996] 4 CNLR 65;[1996] 9 WWR 149;[1996] SCJ No 79 (QL);137 DLR (4th) 648;109 CCC (3d) 193;79 BCAC 161;[1996] 2 SCR 723;50 CR (4th) 111

R. v. Gladstone (W.) (1996), 200 N.R. 189 (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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Donald Gladstone and William Gladstone (appellants) v. Her Majesty The Queen (respondent) and The Attorney General of British Columbia, The Attorney General for Alberta, The Fisheries Council of British Columbia, The British Columbia Fisheries Survival Coalition and The British Columbia Wildlife Federation, The First Nations Summit, Delgamuukw, et al., Howard Pamajewon, Roger Jones, Arnold Gardner, Jack Pitchenese and Allan Gardner (intervenors)

(23801)

Indexed As: R. v. Gladstone (W.) et al.

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.

August 21, 1996.

Summary:

The accused Heiltsuk Band members were convicted under s. 61(1) of the Fisheries Act with offering to sell herring spawn on kelp caught under authority of an Indian food fish licence, contrary to s. 27(5) of the British Columbia Fishery (General) Regu­lations and attempting to sell herring spawn on kelp not caught under the authority of a Category J herring spawn licence, contrary to s. 20(3) of the Pacific Herring Fishery Regulations. The trial judge held that the Regulations infringed the accused's aborigi­nal right to trade in herring spawn on kelp, but the infringement constituted a justifiable inter­ference with those rights. The accused ap­pealed.

The British Columbia Supreme Court allowed the appeal in part. The court set aside the conviction for offering for sale, but affirmed the conviction for attempting to sell. The court held that the limitation of the herring spawn on kelp fishery beyond what was permitted by the Regulations did not infringe the accused's aboriginal rights. The accused appealed.

The British Columbia Court of Appeal, Lambert, J.A., dissenting, in a judgment reported 29 B.C.A.C. 253; 48 W.A.C. 253, dismissed the appeal. The court held that the accused failed to establish that the Heiltsuk Band had an aboriginal right to sell herring spawn on kelp commercially. Alternatively, if such an aboriginal right existed, the regu­latory interference was justified. The accused appealed, claiming that s. 20(3) of the Pacific Herring Fishery Regulations was of no force and effect, because it infringed their aboriginal rights guaranteed by s. 35(1) of the Constitution Act.

The Supreme Court of Canada, La Forest, J., dissenting, allowed the appeal and directed a new trial on the issue of guilt or innocence and, with regards to the constitu­tionality of s. 20(3), on the issue of the justifiability of the government's allocation of herring. The accused established that the Heiltsuk had an aboriginal right to trade in herring spawn on kelp on a commercial basis. That right had not been extinguished and was prima facie infringed by s. 20(3). A new trial was required were there was in­sufficient evidence to rule on the justi­fiability issue.

Criminal Law - Topic 2627

Attempts - What constitute - Section 20(3) of the Pacific Herring Fishery Regulations made it an offence to "attempt to sell" herring spawn on kelp taken or collected under the authority of a Category J licence - The accused arranged to ship herring spawn on kelp to Vancouver, took a sample to a fish store and specifically asked the store owner if he was "in­terested" in herring spawn - The Supreme Court of Canada held that the trial judge did not err in finding an "attempt to sell" - The court stated that "the [accused's] actions have sufficient proximity to the acts necessary to complete the offence of selling herring spawn on kelp to move those actions beyond mere preparation to an actual attempt" - See paragraphs 18 to 19.

Fish and Game - Topic 805

Indian, Inuit and Métis rights - Scope of rights - Limitations - Conservation - [See first and third Fish and Game - Topic 969 ].

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) - The Supreme Court of Canada discussed the R. v. Sparrow test for determining whether the government infringed aborigi­nal rights: "The first question to be asked is whether the legislation in question has the effect of interfering with an existing aboriginal right. If it does have such an effect, it represents a prima facie infringe­ment of s. 35(1). ... To determine whether the fishing rights have been interfered with such as to constitute a prima facie in­fringement of s. 35(1) certain questions must be asked. First, is the limitation unreason­able? Second, does the regulation impose undue hardship? Third, does the regulation deny to the holders of the right their pre­ferred means of exercising that right? The onus of proving a prima facie infringement lies on the individual or group challenging the legislation." - See paragraph 39.

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) - In R. v. Sparrow, the Supreme Court of Canada articulated a two-part test for determining whether government actions infringing aboriginal rights were justified - Generally, the government must demon­strate that it acted for a valid legislative objective consistent with its fiduciary duty to aboriginal peoples and that it gave aboriginal fishing priority in the following order: (1) conservation; (2) Indian fishery; (3) non-Indian commercial fishing; and (4) non-Indian sports fishing - A non-exhaustive list of considerations included "whether there has been as little infringe­ment as possible in order to effect the desired result; whether, in a situation of expropriation, fair compensation is avail­able; and, whether the aboriginal group in question has been consulted with respect to the conservation measures being imple­mented." - The court stated that the Sparrow justification test (applying to fishing rights with internal limits) needed to be adapted to reflect cases involving no such internal limits, as in the present case - See paragraphs 54 to 75.

Fish and Game - Topic 969

Indian, Inuit and Métis rights - Right to fish and regulation of Indian fishery - Allocation priorities - The Supreme Court of Canada stated that "the basic insight of Sparrow -- that aboriginal rights holders have priority in the fishery -- is a valid and important one; however, the articu­lation in that case of what priority means, and its suggestion that it can mean exclusivity under certain limited circum­stances, must be refined to take into account the varying circumstances which arise when the aboriginal right in question has no internal limitations. Where the aboriginal right is one that has no internal limitation then the doctrine of priority does not require that, after conservation goals have been met, the government allocate the fishery so that those holding an aboriginal right to exploit that fishery on a commercial basis are given an ex­clusive right to do so. Instead, the doctrine of priority requires that the government demonstrate that, in allocating the re­source, it has taken account of the exis­tence of aboriginal rights and allocated the resource in a manner respectful of the fact that those rights have priority over the exploitation of the fishery by other users. This right is at once both procedural and substantive; at the stage of justification the government must demonstrate both that the process by which it allocated the resource and the actual allocation of the resource which results from that process reflect the prior interest of aboriginal rights holders in the fishery." - See para­graphs 61 to 62.

Fish and Game - Topic 969

Indian, Inuit and Métis rights - Right to fish and regulation of Indian fishery - Allocation priorities - The Supreme Court of Canada stated that "questions relevant to the determination of whether the gov­ernment has granted priority to aboriginal rights holders are those enumerated in Sparrow relating to consultation and com­pensation, as well as questions such as whether the government has accommo­dated the exercise of the aboriginal right to participate in the fishery (through reduced licence fees, for example), whether the government's objectives in enacting a particular regulatory scheme reflect the need to take into account the priority of aboriginal right holders, the extent of the participation in the fishery of aboriginal rights holders relative to their percentage of the population, how the government has accommodated different aboriginal rights in a particular fishery (food versus com­mercial rights, for example), how im­portant the fishery is to the economic and material well-being of the band in ques­tion, and the criteria taken into account by the government in, for example, allocating commercial licences amongst different users." - See paragraph 64.

Fish and Game - Topic 969

Indian, Inuit and Métis rights - Right to fish and regulation of Indian fishery - Allocation priorities - The Supreme Court of Canada stated that "although by no means making a definitive statement on this issue, I would suggest that with regards to the distribution of the fisheries resource after conservation goals have been met, objectives such as the pursuit of economic and regional fairness, and the recognition of the historical reliance upon, and participation in, the fishery by non­aboriginal groups, are the type of objec­tives which can (at least in the right cir­cumstances) satisfy this standard. In the right circumstances, such objectives are in the interest of all Canadians and, more importantly, the reconciliation of aborigi­nal societies with the rest of Canadian society may well depend on their success­ful attainment." - See paragraph 75.

Indians, Inuit and Métis - Topic 6012

Aboriginal rights - Proof of - The Supreme Court of Canada, applying the R. v. Van Der Peet guidelines for establish­ment of aboriginal rights, held that the Heiltsuk Band had an aboriginal right to trade herring spawn on kelp commercially - The claimed right was an element of a tradition, custom, practice or law integral to the distinctive culture of the Heiltsuk in the period predating European contact - The evidence established that the Heiltsuk had always been traders of herring spawn on kelp - The exchange of herring spawn on kelp for money or other goods (or on a commercial basis) was a central, signifi­cant and defining feature of their culture - See paragraphs 22 to 29.

Indians, Inuit and Métis - Topic 6017

Aboriginal rights - Infringement - The Heiltsuk Band had an aboriginal right to trade commercially in herring spawn on kelp - The government's regulation of the fishery involved (1) determining the amount of herring stock harvested each year; (2) allotting the herring stock to different herring fisheries; (3) allotting the herring spawn on kelp fishery to various user groups (commercial groups and Indian food fishery); and (4) allotting the commercial herring spawn on kelp licences - The result was that the amount of herring spawn on kelp that could be harvested by the Heiltsuk Band for com­mercial purposes was limited - The Supreme Court of Canada, applying the test in R. v. Sparrow, held that a prima facie infringement of aboriginal rights was established - See paragraphs 39 to 53.

Indians, Inuit and Métis - Topic 6017

Aboriginal rights - Infringement - [See first Fish and Game - Topic 963 ].

Indians, Inuit and Métis - Topic 6018

Aboriginal rights - Extinguishment - The Crown claimed that the Heiltsuk Band's aboriginal right to trade herring spawn on kelp commercially was extinguished by pre-1955 provisions of the Fisheries Act and pre-1982 Regulations directed spe­cifically at the herring spawn fishery - The Supreme Court of Canada held that extinguishment was not established - An aboriginal right was extinguished only where the Sovereign's intention to do so was clear and plain - The regulation of an aboriginal right, subjecting its exercise to terms and conditions, did not constitute extinguishment - The legislation relied on by the Crown did not demonstrate a clear and plain intention to extinguish the com­mercial fishery in herring spawn - See paragraphs 31 to 38.

Words and Phrases

Attempt to sell - The Supreme Court of Canada discussed the meaning of the phrase "attempt to sell", as found in s. 20(3) of the Pacific Herring Fishery Regulations, SOR/84-324 - See para­graphs 18 to 19.

Cases Noticed:

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, appld. [para. 7].

R. v. Deutsch, [1986] 2 S.C.R. 2; 68 N.R. 321; 18 O.A.C. 1, appld. [para. 19].

R. v. Van der Peet (D.M.) (1996), 200 N.R. 1 (S.C.C.), appld. [para. 21].

R. v. N.T.C. Smokehouse Ltd. (1996), 200 N.R. 321 (S.C.C.), refd to. [para. 21].

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. 21].

Calder v. British Columbia (Attorney General), [1973] S.C.R. 313, appld. [para. 31].

R. v. Horseman, [1990] 1 S.C.R. 901; 108 N.R. 1; 108 A.R. 1, dist. [para. 38].

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, dist. [para. 38].

R. v. Jack et al., [1980] 1 S.C.R. 294; 28 N.R. 162, refd to. [para. 54].

R. v. Van der Peet (D.M.) (1993), 29 B.C.A.C. 209; 48 W.A.C. 209; 80 B.C.L.R.(2d) 75 (C.A.), refd to. [para. 57].

R. v. N.T.C. Smokehouse Ltd. (1993), 29 B.C.A.C. 273; 48 W.A.C. 273; 80 B.C.L.R.(2d) 158 (C.A.), refd to. [para. 57].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2; 58 D.L.R.(4th) 577; 25 C.P.R.(3d) 417, refd to. [para. 63].

Stoffman et al. v. Vancouver General Hospital et al., [1990] 3 S.C.R. 483; 118 N.R. 241, refd to. [para. 63].

McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1; 76 D.L.R.(4th) 545; 2 C.R.R.(2d) 1, refd to. [para. 63].

R. v. Butler and McCord, [1992] 1 S.C.R. 452; 134 N.R. 81; 78 Man.R.(2d) 1; 16 W.A.C. 1, refd to. [para. 63].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308, refd to. [para. 63].

British Columbia (Attorney General) v. Canada (Attorney General), [1914] A.C. 153 (P.C.), refd to. [para. 67].

R. v. Jones (1993), 14 O.R.(3d) 421 (Prov. Div.), refd to. [para. 98].

United States v. Santa Fe Pacific Railroad Co. (1941), 314 U.S. 334 (S.C.), refd to. [para. 110].

Heiltsuk Indian Band et al. v. Canada (Minister of Fisheries and Oceans) (1993), 59 F.T.R. 308 (T.D.), refd to. [para. 147].

Canadian Pacific Ltd. v. Paul et al., [1988] 2 S.C.R. 654; 89 N.R. 325; 91 N.B.R.(2d) 43; 232 A.P.R. 43, refd to. [para. 166].

Statutes Noticed:

British Columbia Fishery (General) Regu­lations - see Fisheries Act Regulations (Can.).

Constitution Act, 1982, sect. 35(1) [para. 5].

Fisheries Act, R.S.C. 1970, c. F-14, sect. 16(1) [para. 1].

Fisheries Act Regulations (Can.), British Columbia Fishery (General) Regulations, SOR/84-248, sect. 21A(1), sect. 21A(2) [para. 33]; sect. 27(5) [para. 1].

Fisheries Act Regulations (Can.), Pacific Herring Fishery Regulations, SOR/84-324, sect. 17 [para. 33]; sect. 20(3) [paras. 3, 102].

Pacific Herring Fishery Regulations - see Fisheries Act Regulations (Can.).

Authors and Works Noticed:

Black's Law Dictionary (1990), p. 1189 [para. 112].

Canada, Department of Fisheries Report (1975), Herring Spawn on Kelp Fishery, generally [para. 49].

Counsel:

Marvin R.V. Storrow, Q.C., and Maria A. Morellato, for the appellants;

S. David Frankel, Q.C., and Cheryl J. Tobias, for the respondent;

Paul J. Pearlman, for the intervenor, At­torney General of British Columbia;

Robert J. Normey, for the intervenor, Attorney General of Alberta;

J. Keith Lowes, for the intervenor, Fisheries Council of British Columbia;

Christopher Harvey, Q.C., and Robert Lonergan, for the intervenors, British Columbia Fisheries Survival Coalition and British Columbia Wildlife Feder­ation;

Harry A. Slade, Arthur C. Pape and Robert C. Freedman, for the intervenor, First Nations Summit;

Stuart Rush, Q.C., and Michael Jackson, for the intervenors, Delgamuukw et al.;

Arthur C. Pape and Clayton C. Ruby, for the intervenors, Howard Pamajewon, Roger Jones, Arnold Gardner, Jack Pitchenese and Allan Gardner.

Solicitors of Record:

Blake, Cassels & Graydon, Vancouver, B.C., for the appellants;

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

Fuller, Pearlman, Victoria, B.C., for the intervenor, Attorney General of British Columbia;

Attorney General for Alberta, Edmonton, Alberta, for the intervenor, Attorney General of Alberta;

J. Keith Lowes, Vancouver, B.C., for the intervenor, Fisheries Council of British Columbia;

Russell & DuMoulin, Vancouver, B.C., for the intervenors, British Columbia Fisheries Survival Coalition and British Columbia Wildlife Federation;

Ratcliff & Co., North Vancouver, B.C., for the intervenor, First Nations Summit;

Rush, Crane, Guenther & Adams, Vancouver, B.C., for the intervenors, Delgamuukw et al.;

Pape & Salter, Vancouver, B.C., for the intervenors, Howard Pamajewon, Roger Jones, Arnold Gardner, Jack Pitchenese and Allan Gardner.

This appeal was heard on November 27-29, 1995, 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 August 21, 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, Iacobucci and Major, JJ., concurring) - see paragraphs 1 to 86;

L'Heureux-Dubé, J. - see paragraphs 87 to 115;

McLachlin, J. - see paragraphs 116 to 136;

La Forest, J., dissenting - see para­graphs 137 to 175.