R. v. Jack and Charlie, (1985) 62 N.R. 14 (SCC)

JudgeDickson, C.J.C., Beetz, Estey, McIntyre and Chouinard, JJ.
CourtSupreme Court (Canada)
Case DateOctober 31, 1985
JurisdictionCanada (Federal)
Citations(1985), 62 N.R. 14 (SCC);[1986] 1 WWR 21;[1985] 4 CNLR 88;62 NR 14;21 DLR (4th) 641;1985 CanLII 8 (SCC);21 CCC (3d) 481;69 BCLR 201;[1985] 2 SCR 332

R. v. Jack (1985), 62 N.R. 14 (SCC)

MLB headnote and full text

R. v. Jack and Charlie

(No. 17358)

Indexed As: R. v. Jack and Charlie

Supreme Court of Canada

Dickson, C.J.C., Beetz, Estey, McIntyre and Chouinard, JJ.

October 31, 1985.

Summary:

The accused Indians were convicted of killing a deer out of season, contrary to s. 4(1)(c) of the Wildlife Act, S.B.C. 1966, c. 55 (now s. 3(1)(c), R.S.B.C. 1979, c. 433). The deer was killed for use in a religious burning ceremony. The accused appealed. The British Columbia County Court dismissed the appeal. The accused again appealed.

The British Columbia Court of Appeal, Hutcheon, J.A., dissenting, dismissed the appeal. The accused appealed to the Supreme Court of Canada. The accused submitted that the Act interfered with the accused's freedom of religion and should be read down so as not to apply in the circumstances of the case and that the Act, in interfering with aboriginal religion and culture, purported to regulate the accused qua Indians and was therefore invalid.

The Supreme Court of Canada dismissed the appeal. The court held that the prohibition against killing deer out of season raised no question of freedom of religion, because killing the deer was not part of the religious ceremony and there was no evidence that only fresh meat could be used. The court held that the defence that the Act was invalid for regulating the accused qua Indians was dismissed for the reasons given in R. v. Dick (1985), 62 N.R. 321 (S.C.C.).

Civil Rights - Topic 382

Freedom of religion - Infringement of - What constitutes - The accused Indians killed a deer for use in an ancient religious ceremony and were convicted of killing a deer out of season, contrary to the British Columbia Wildlife Act - The accused submit ted that the Act interfered with their fundamental freedom of religion - The Supreme Court of Canada held that the Act raised no question of freedom of religion, because the killing of the deer was not part of the religious ceremony and there was no evidence that only raw meat could be used - The court stated that killing the deer for use in a religious ceremony was the motive and however bona fide that motive was, it was irrelevant in determining whether an offence had been committed - See paragraphs 11 to 39.

Constitutional Law - Topic 6360

Federal jurisdiction - Constitution Act, s. 91 - Indians - Provincial laws of general application - Two Indians were convicted of hunting out of season, contrary to s. 4(1)(c) of the Wildlife Act, S.B.C. 1966, c. 55 (now s. 3(1)(c), R.S.B.C. 1979, c. 433) - The Supreme Court of Canada affirmed the convictions - The court reiterated that the Act neither overtly nor colourably singled out Indians for special treatment or impairment of their status; that although the Act was assumed to affect Indians qua Indians, it was not proved that this effect was intended - The court held that the Act, being a law of general application in British Columbia, was applicable to Indians either by referential incorporation under s. 88 of the Indian Act or ex proprio vigore (by its own force) - See paragraph 40.

Constitutional Law - Topic 7883

Fundamental freedoms - Freedom of religion - Scope of - The accused Indians killed a deer for use in an ancient religious ceremony and were convicted of killing a deer out of season, contrary to the British Columbia Wildlife Act - The accused submitted that the Act interfered with their fundamental freedom of religion - The Supreme Court of Canada held that the Act raised no question of freedom of religion, because the killing of the deer was not part of the religious ceremony and there was no evidence that only raw meat could be used - The court stated that killing the deer for use in a religious ceremony was the motive and however bona fide that motive was, it was irrelevant in determining whether an offence had been committed - See paragraphs 11 to 39.

Criminal Law - Topic 164

Criminal conduct - Elements of - Motive - The accused Indians killed a deer for use in an ancient religious ceremony and were convicted of killing a deer out of season, contrary to the British Columbia Wildlife Act - The accused submitted that the Act interfered with their fundamental freedom of religion - The Supreme Court of Canada held that the Act raised no question of freedom of religion, because the killing of the deer was not part of the religious ceremony and there was no evidence that only raw meat could be used - The court stated that killing the deer for use in a religious ceremony was the motive and however bona fide that motive was, it was irrelevant in determining whether an offence had been committed - See paragraph 39.

Fish and Game - Topic 846

Indian and Inuit rights - Right of non-treaty Indians to hunt for food - Two Indians were convicted of hunting out of season contrary to s. 4(1)(c) of the Wildlife Act, S.B.C. 1966, c. 55 (now s. 3(1)(c), R.S.B.C. 1979, c. 433) - The Supreme Court of Canada, in affirming the convictions, held that the Act, being a law of general application in British Columbia, was applicable to Indians either by referential incorporation under s. 88 of the Indian Act or ex proprio vigore (by its own force) - See paragraph 40.

Indians, Inuit and Métis - Topic 6266

Government of Indians - What law governs - Provincial laws of general application - Indian Act, R.S.C. 1970, c. I-6, s. 88 - Two Indians were convicted of hunting out of season, contrary to s. 4(1)(c) of the Wildlife Act, S.B.C. 1966, c. 55 (now s. 3(1)(c), R.S.B.C. 1979, c. 433) - The Supreme Court of Canada affirmed the convictions - The court reiterated that the Act neither overtly nor colourably singled out Indians for special treatment or impairment of their status; that although the Act was assumed to affect Indians qua Indians, it was not proved that this effect was intended - The court held that the Act, being a law of general application in British Columbia, was applicable to Indians either by referential incorporation under s. 88 of the Indian Act or ex proprio vigore (by its own force) - See paragraph 40.

Cases Noticed:

Saumur v. City of Quebec, [1953] 2 S.C.R. 299, refd to. [para. 23].

Chabot v. School Com'rs of Lamorandiere and A.G. Que., [1957] Q.B. 707; 12 D.L.R.(2d) 796, refd to. [para. 12].

Alberta Press Bill Case, [1938] S.C.R. 100, refd to. [para. 14].

Gay Alliance Toward Equality v. Vancouver Sun, [1979] 2 S.C.R. 435; 27 N.R. 117, refd to. [para. 14].

R. v. Kruger and Manuel, [1978] 1 S.C.R. 104; 15 N.R. 495, folld. [para. 17].

Robertson and Rosetanni v. The Queen, [1963] S.C.R. 651, refd to. [para. 20].

Board of Education v. Barnette (1943), 319 U.S. 624, refd to. [para. 20].

R. v. Harrold (1971), 3 C.C.C.(2d) 387, refd to. [para. 26].

R. v. Dick (1985), 62 N.R. 321 (S.C.C.), folld. [para. 40].

Statutes Noticed:

Wildlife Act, S.B.C. 1966, c. 55, sect. 4(1)(c) [para. 1].

Wildlife Act, R.S.B.C. 1979, c. 433, sect. 3(1)(c) [para. 1].

Counsel:

Louise Mandell and Leslie Pinder, for the appellants;

E. Robert A. Edwards, Q.C., and R. Nicholas Lang, for the respondent.

This appeal was heard on October 29, and 30, 1984, before Dickson, C.J.C., Beetz, Estey, McIntyre and Chouinard, JJ., of the Supreme Court of Canada.

On October 31, 1985, Beetz, J., delivered the following jugment for the Supreme Court of Canada.

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    ...[para. 26]. R. v. Harrold, [1971] 3 W.W.R. 365 (B.C.C.A.), consd. [para. 27]. R. v. Jack and Charlie (1982), 67 C.C.C.(2d) 289, affd. [1985] 2 S.C.R. 332; 28 N.R. 162, consd. [para. Fardella v. Treasury Board of Canada (1974), 5 N.R. 571; 47 D.L.R. 689 (F.C.A.), consd. [para. 28]. Lubell an......
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    ...330; R. v. Longtin (1983), 5 C.C.C. (3d) 12; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Jack and Charlie v. The Queen, [1985] 2 S.C.R. 332; R. v. Lucas; R. v. Neely (1986), 27 C.C.C. (3d) 229; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Riel (1885), 2 Man. L.R. 302; Ex parte ......
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    ...23]. R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [para. 24]. R. v. Jack and Charlie, [1985] 2 S.C.R. 332; 62 N.R. 14, refd to. [para. R. v. Lucas; R. v. Neely (1986), 14 O.A.C. 124; 27 C.C.C.(3d) 229 (C.A.), refd to. [para. 25]. R. v. Mills, [198......
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    ...23]. R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [para. 24]. R. v. Jack and Charlie, [1985] 2 S.C.R. 332; 62 N.R. 14, refd to. [para. R. v. Lucas; R. v. Neely (1986), 14 O.A.C. 124; 27 C.C.C.(3d) 229 (C.A.), refd to. [para. 25]. R. v. Mills, [198......
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20 cases
  • R. v. Church of Scientology of Toronto and Zaharia, (1987) 18 O.A.C. 321 (CA)
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    ...[para. 26]. R. v. Harrold, [1971] 3 W.W.R. 365 (B.C.C.A.), consd. [para. 27]. R. v. Jack and Charlie (1982), 67 C.C.C.(2d) 289, affd. [1985] 2 S.C.R. 332; 28 N.R. 162, consd. [para. Fardella v. Treasury Board of Canada (1974), 5 N.R. 571; 47 D.L.R. 689 (F.C.A.), consd. [para. 28]. Lubell an......
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    ...330; R. v. Longtin (1983), 5 C.C.C. (3d) 12; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Jack and Charlie v. The Queen, [1985] 2 S.C.R. 332; R. v. Lucas; R. v. Neely (1986), 27 C.C.C. (3d) 229; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Riel (1885), 2 Man. L.R. 302; Ex parte ......
  • Gamble v. R., (1988) 31 O.A.C. 81 (SCC)
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    ...23]. R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [para. 24]. R. v. Jack and Charlie, [1985] 2 S.C.R. 332; 62 N.R. 14, refd to. [para. R. v. Lucas; R. v. Neely (1986), 14 O.A.C. 124; 27 C.C.C.(3d) 229 (C.A.), refd to. [para. 25]. R. v. Mills, [198......
  • Gamble v. R., (1988) 89 N.R. 161 (SCC)
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    ...23]. R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [para. 24]. R. v. Jack and Charlie, [1985] 2 S.C.R. 332; 62 N.R. 14, refd to. [para. R. v. Lucas; R. v. Neely (1986), 14 O.A.C. 124; 27 C.C.C.(3d) 229 (C.A.), refd to. [para. 25]. R. v. Mills, [198......
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