R. v. Howard, (1994) 166 N.R. 282 (SCC)

• Judge: McLachlin and Iacobucci, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 12, 1994
• Jurisdiction: Canada (Federal)
• Citations: (1994), 166 N.R. 282 (SCC);71 OAC 278;1994 CanLII 86 (SCC);[1994] 3 CNLR 146;18 OR (3d) 384;[1994] SCJ No 43 (QL);115 DLR (4th) 312;[1994] 2 SCR 299;90 CCC (3d) 131;166 NR 282

R. v. Howard (1994), 166 N.R. 282 (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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George Henry Howard (appellant) v. Her Majesty The Queen (respondent) and Attorney General of Canada, United Indian Councils and Ontario Federation of Anglers and Hunters (intervenors)

(22999)

Indexed As: R. v. Howard

Supreme Court of Canada

Lamer, C.J.C., La Forest,

Sopinka, Gonthier, Cory,

McLachlin and Iacobucci, JJ.

May 12, 1994.

Summary:

The accused status Indian was convicted of unlawfully fishing off the reserve during a prohibited period. The trial judge ruled that the right to fish off the reserve was extin­guished by a 1923 treaty. A summary con­viction appeal court affirmed the conviction. The accused appealed.

The Ontario Court of Appeal, in a judg­ment reported 55 O.A.C. 189, dismissed the appeal. The court affirmed that the treaty was valid and clearly extinguished off reserve fishing rights. The accused appealed.

The Supreme Court of Canada dismissed the appeal.

Fish and Game - Topic 971

Indian, Inuit and Métis rights - Right to fish and regulation of Indian fishery - Off reserve - Statutory regulation of - The accused status Indian was convicted of unlawfully fishing off the reserve during a prohibited period - The trial judge ruled that the right to fish off the reserve was extinguished by a 1923 treaty - The Ontario Court of Appeal affirmed that the treaty was valid and clearly extinguished off reserve fishing rights - The court rejected submissions that the band representatives executing the treaty did not understand its terms, that the treaty was invalid because of the absence of an Order-in-Council by the federal government to ratify the treaty and that the Ontario Fishery Regulations conflicted with s. 35 of the Constitution Act - The Supreme Court of Canada affirmed that the 1923 treaty was valid and extinguished the right to fish off the reserve.

Cases Noticed:

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280, refd to. [para. 9].

Eastmain Band v. Robinson et al., [1993] 1 F.C. 501; 145 N.R. 270 (F.C.A.), refd to. [para. 9].

Ontario (Attorney General) v. Bear Island Foundation, [1991] 2 S.C.R. 570; 127 N.R. 147; 46 O.A.C. 396, refd to. [para. 10].

Gooderham and Worts Ltd. v. Canadian Broadcasting Corp., [1947] A.C. 66 (P.C.), refd to. [para. 11].

Statutes Noticed:

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

Fisheries Act, R.S.C. 1970, c. F-14, gen­erally [para. 1].

Fisheries Act Regulations (Can.), Ontario Fishery Regulations, C.R.C. 1978, c. 849, sect. 5(1)(b) [para. 1].

Inquiries Act, R.S.C. 1906, c. 104, gen­erally [para. 11].

Ontario Fishery Regulations - see Fish­eries Act Regulations (Can.).

Counsel:

William B. Henderson and Alan D. Pratt, for the appellant;

J.T.S. McCabe, Q.C., for the respondent;

John B. Edmond, for the Attorney General of Canada;

Thomas R. Berger, Q.C., for the United Indian Councils;

Timothy S.B. Danson and Stephen Reich, for the Ontario Federation of Anglers and Hunters.

Solicitors of Record:

Lang, Michener, Toronto, Ontario, for the appellant;

Ministry of the Attorney General, Toronto, Ontario, for the respondent;

John C. Tait, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the Attor­ney General of Canada;

Berger & Nelson, Vancouver, British Col­umbia, for the United Indian Councils;

Danson, Recht & Freedman, Toronto, Ontario, for the Ontario Federation of Anglers and Hunters.

This appeal was heard on February 22, 1994, before Lamer, C.J.C., La Forest, So­pinka, Gonthier, Cory, McLachlin and Iaco­bucci, JJ., of the Supreme Court of Canada.

On May 12, 1994, Gonthier, J., delivered the following judgment in both official languages for the Supreme Court of Canada.