R. v. Jack et al., (1979) 28 N.R. 162 (SCC)

• Judge: Laskin, C.J.C., Martland, Ritchie, Pigeon, Dickson, Beetz, Estey, Pratte and McIntyre, JJ.
• Court: Supreme Court (Canada)
• Case Date: July 18, 1979
• Jurisdiction: Canada (Federal)
• Citations: (1979), 28 N.R. 162 (SCC);100 DLR (3d) 193;48 CCC (2d) 246;[1979] 5 WWR 364;1979 CanLII 175 (SCC);[1979] 2 CNLR 25;28 NR 162;[1980] 1 SCR 294

R. v. Jack (1979), 28 N.R. 162 (SCC)

MLB headnote and full text

R. v. Jack et al.

Indexed As: R. v. Jack et al.

Supreme Court of Canada

Laskin, C.J.C., Martland, Ritchie, Pigeon, Dickson, Beetz, Estey, Pratte and McIntyre, JJ.

July 18, 1979.

Summary:

This case arose out of charges against the accused Indians that they either fished for or were in possession of salmon during a period when fishing was prohibited under the Fisheries Act, R.S.C. 1970, c. F-14. In defence the accused submitted that Parliament lacked the constitutional power to prohibit Indians from fishing for food, because of Article 13 of the Terms of Union under which British Columbia entered Confederation in 1871. Article 13 provided that Parliament would assume responsibility for British Columbia Indians and would pursue "a policy as liberal as that hitherto pursued by the British Columbia Government." The accused submitted that, where Indians were permitted to fish for food in British Columbia prior to 1871, Article 13 prevented Parliament from subsequently restricting the Indian food fishery. The accused were convicted. The British Columbia Court of Appeal dismissed the appeals of the accused from conviction. The accused appealed.

The Supreme Court of Canada dismissed the appeals and affirmed the convictions of the accused. The Supreme Court of Canada held that Article 13 did not prevent Parliament from regulating the Indian salmon fishery in British Columbia.

Constitutional Law - Topic 28

Raising constitutional issues - Status of party to raise constitutional issue - The Supreme Court of Canada held that it was open to any litigant to defend a charge on the ground that it is based on unconstitutional legislation - See paragraphs 5 and 9.

Constitutional Law - Topic 107

Constitutional instrument - Defined - The Supreme Court of Canada held that the Terms of Union under which British Columbia entered Confederation was a constitutional instrument in accordance with s. 146 of the British North America Act - See paragraph 2.

Constitutional Law - Topic 428

Powers of Parliament - Limitations outside British North America Act - Terms of Union - Article 13 of the Terms of Union under which British Columbia entered Confederation in 1871 provided that Parliament would assume responsibility for British Columbia Indians and would pursue "a policy as liberal as that hitherto pursued by the British Columbia Government" - The defendant Indians submitted that, where British Columbia permitted Indians to fish for food before 1871, Article 13 prevented Parliament from subsequently prohibiting Indians from fishing for food - The Supreme Court of Canada held that Article 13 did not prevent Parliament from regulating the Indian fishery.

Fish and Game - Topic 805

Indian and Eskimo rights - Scope of rights - Limitations - Conservation - The Supreme Court of Canada stated that the regulation of the fishery for conservation purposes took precedence over any Indian right to fish - See paragraphs 6, 26 and 31 to 32.

Statutes Noticed:

British North America Act, 1867, sect. 91(12) [para. 2]; sect. 91(24) [para. 3].

Fisheries Act, R.S.C. 1970, c. F-14, sect. 19 [para. 1].

Counsel:

Douglas Sanders, for the appellants;

M.E. Phelps, for the respondent;

Ralph Hutchison and Paul Pearlman, for the intervenant.

This case was heard on May 1, 1979, at Ottawa, Ontario, before LASKIN, C.J.C., MARTLAND, RITCHIE, PIGEON, DICKSON, BEETZ, ESTEY, PRATTE and McINTYRE, JJ., of the Supreme Court of Canada.

On July 18, 1979, the judgment of the Supreme Court of Canada was delivered and the following opinions were filed:

LASKIN, C.J.C. - see paragraphs 1 to 7;

DICKSON, J. - see paragraphs 8 to 37.

MARTLAND, RITCHIE, PIGEON, BEETZ, ESTEY, PRATTE and McINTYRE, JJ., concurred with LASKIN, C.J.C.