R. v. Kapp (J.M.) et al., 2006 BCCA 277

• Judge: Finch, C.J.B.C., Mackenzie, Low, Levine and Kirkpatrick, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 08, 2006
• Jurisdiction: British Columbia
• Citations: 2006 BCCA 277;(2006), 227 B.C.A.C. 248 (CA)

R. v. Kapp (J.M.) (2006), 227 B.C.A.C. 248 (CA);

    374 W.A.C. 248

MLB headnote and full text

Temp. Cite: [2006] B.C.A.C. TBEd. JN.023

Regina (respondent/appellant) v. John Michael Kapp, Robert Agricola, William Anderson, Albert Armstrong, Dale Armstrong, Lloyd James Armstrong, Pasha Berlak, Kenneth Axelson, Michael Bemi, Leonard Botkin, John Brodie, Darrin Chung, Donald Connors, Bruce Crosby, Barry Dolby, Wayne Ellis, William Gaunt, George Horne, Hon Van Lam, William Leslie Sr., Bob M. McDonald, Leona McDonald, Stuart McDonald, Ryan McEachern, William McIsaac, Melvin (Butch) Mitchell, Ritchie Moore, Galen Murray, Dennis Nakutsuru, Theodore Neef, David Luke Nelson, Phuoc Nguyen, Nung Duc Gia Nguyen, Richard Nomura, Vui Phan, Robert Powroznik, Bruce Probert, Larry Salmi, Andy Sasidiak, Colin R. Smith, Donna Sonnenberg, Den Van Ta, Cedric Towers, Thanh S. Tra, George Tudor, Mervin Tudor, Dieu To Ve, Albert White, Gary Williamson, Jerry A. Williamson, Spencer J. Williamson, Kenny Yoshikawa, Dorothy Zilcosky and Robert Zilcosky (appellants/respondents) and Cowichan Tribes, Tseshaht First Nation, Tsawwassen First Nation, Sport Fishing Defence Alliance, B.C. Seafood Alliance, Pacific Salmon Harvesters Society, Aboriginal Fishing Vessel Owners' Association and the United Fishermen and Allied Workers' Union (intervenors)

(CA032160; 2006 BCCA 277)

Indexed As: R. v. Kapp (J.M.) et al.

British Columbia Court of Appeal

Finch, C.J.B.C., Mackenzie, Low, Levine and Kirkpatrick, JJ.A.

June 8, 2006.

Summary:

The accused were licensed commercial fishers who engaged in a protest fishery by fishing during a 24 hour period when only three First Nations Bands were licenced to fish under a government policy called the Pilot Sales Program (PSP). The accused were charged under s. 78 of the Fisheries Act with fishing for salmon with a gillnet in the Fraser River during a closure. The accused sought a stay of the charges.

The British Columbia Provincial Court (2003 BCPC 279), granted the stay on the basis that the PSP violated the equality rights of the accused under s. 15 of the Charter. The trial judge also ruled that the PSP was not saved by s. 1 of the Charter. The Crown appealed (i.e., summary conviction appeal).

The British Columbia Supreme Court, in a decision reported at [2004] B.C.T.C. 958, allowed the appeal and entered convictions. The accused were sentenced accordingly ([2004] B.C.T.C. 1503). The accused applied for leave to appeal the convictions.

The British Columbia Court of Appeal, per Donald, J.A., in a decision reported 205 B.C.A.C. 71; 337 W.A.C. 71, granted leave to appeal in part. Interested first nations and other interest parties applied for leave to intervene.

The British Columbia Court of Appeal, per Levine, J.A., in a decision reported 212 B.C.A.C. 72; 350 W.A.C. 72, allowed the applications for leave to intervene on the Charter equality issue and on the exclusive fishery issues. Subsequently the Chief Justice of British Columbia directed that a five judge panel would be convened because the accused's arguments involved a challenge to a prior decision of the court.

The British Columbia Court of Appeal, in the decision reported below, dismissed the appeal. The court rejected the accused's argument that the PSP and the 24 hour communal licence created a racially segregated commercial fishery denying them equal benefit of the law contrary to s. 15(1) of the Charter. Kirkpatrick, J.A., in a separate judgment concurring that the appeal should be dismissed, opined that s. 25 of the Charter which dealt with aboriginal rights was a complete answer to the accused's Charter argument and it was therefore unnecessary to embark on a s. 15 analysis. Kirkpatrick, J.A., interpreted s. 25 and discussed the relationship between s. 25 and other provisions of the Charter.

Civil Rights - Topic 5500

Equality and protection of the law - General principles and definitions - General - The accused were licensed commercial fishers who engaged in a protest fishery by fishing during a 24 hour period when only three First Nations Bands were licenced to fish under a government policy called the Pilot Sales Program (PSP) - PSP was a policy that was implemented by Ministerial discretion under the legal authority of the Aboriginal Communal Fishing Licences Regulations as a means of managing the salmon fishery while allowing aboriginal commercial fishing - The accused were charged under the Fisheries Act with fishing for salmon during a closure - The accused appealed, alleging that the PSP and the 24 hour communal licence created a racially segregated commercial fishery denying them equal benefit of the law contrary to s. 15(1) of the Charter - The Crown argued that the discretionary implementation of a law could not be challenged under s. 15(1) absent a challenge to the law itself - The British Columbia Court of Appeal, per Low, J.A., rejected such a broad proposition - See paragraphs 72 and 73.

Civil Rights - Topic 5502

Equality and protection of the law - General principles and definitions - Whether right to equality abridged - The accused were licensed commercial fishers who engaged in a protest fishery by fishing during a 24 hour period when only three First Nations Bands were licenced to fish under a government policy called the Pilot Sales Program (PSP) - PSP was policy that was implemented by Ministerial discretion under the legal authority of the Aboriginal Communal Fishing Licences Regulations (ACFLR) as a means of managing the salmon fishery while allowing aboriginal commercial fishing - The accused were charged under the Fisheries Act with fishing for salmon during a closure - The accused appealed, alleging that the PSP and the 24 hour communal licence created a racially segregated commercial fishery denying them equal benefit of the law contrary to s. 15(1) of the Charter - The British Columbia Court of Appeal rejected the s. 15(1) argument - Low, J.A., held that the s. 15(1) argument failed at the outset because the accused were unable to establish that the discretionary implementation of the ACFLR denied them a benefit provided by law (i.e., the accused could not establish the first element of the test laid out in Law v. Canada respecting whether there was differential treatment) - See paragraphs 67 to 84 - Mackenzie, J.A., held that the accused failed to satisfy the third element of the Law v. Canada test (i.e., whether the law had a discriminatory purpose or effect) - See paragraph 84 - Kirkpatrick, J.A., opined that a s. 15 analysis was unnecessary in light of s. 25 of the Charter - See paragraph 118 - Finch, C.J.B.C., and Levine, J.A., concurred with both Low and MacKenzie, JJ.A. on the s. 15 issue - See paragraphs 155 and 162.

Civil Rights - Topic 5507

Equality and protection of the law - General principles and definitions - Equal benefit of the law - [See Civil Rights - Topic 5502 ].

Civil Rights - Topic 5656

Equality and protection of the law - Particular cases - Licensing - [See Civil Rights - Topic 5502 ].

Civil Rights - Topic 8370

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - When denied - The accused were licensed commercial fishers who engaged in a protest fishery by fishing during a 24 hour period when only three First Nations Bands were licenced to fish under a government policy called the Pilot Sales Program (PSP) - The accused were charged under the Fisheries Act with fishing for salmon during a closure - The accused appealed, alleging that the PSP and 24 hour communal licence created a racially segregated commercial fishery contrary to s. 15(1) of the Charter - The British Columbia Court of Appeal rejected the s. 15(1) argument - Low, J.A., questioned whether a remedy was available to the accused under s. 24(1) of the Charter, in any event, where the accused deliberately broke the law in order to attack the PSP on constitutional grounds - See paragraphs 91 to 95.

Civil Rights - Topic 8467

Canadian Charter of Rights and Freedoms - Interpretation - Interrelationship among Charter Rights (s. 15 vs. s. 25) - [See first and second Civil Rights - Topic 8485 ].

Civil Rights - Topic 8485

Canadian Charter of Rights and Freedoms - Interpretation - Particular subjects - Aboriginal rights (s. 25) - The accused were licensed commercial fishers who engaged in a protest fishery by fishing during a 24 hour period when only three First Nations Bands were licenced to fish under a government policy called the Pilot Sales Program (PSP) - The accused were charged under the Fisheries Act with fishing for salmon during a closure - The accused appealed, alleging that the PSP and 24 hour communal licence created a racially segregated commercial fishery contrary to s. 15(1) of the Charter - One of the First Nations Bands argued that s. 25 of the Charter should be applied to defeat the s. 15(1) claim - Low, J.A., of the British Columbia Court of Appeal, although reluctant to lay down a stringent rule regarding the stage in the overall analysis at which s. 25 had to be considered, opined that s. 25 need not be considered at least until a claimant got past the first test in the Law v. Canada analysis (i.e., establishing that there was differential treatment) - Therefore, in this case, where the court concluded that there was no breach of s. 15(1) because the accused were not denied a benefit of the law, it was unnecessary to consider s. 25 - See paragraphs 85 to 90 - MacKenzie, J.A., opined that s. 25 of the Charter had no application to the licence as the aboriginal commercial salmon fisheries were not constitutionalized and there were sound reasons for not doing so - See paragraphs 114 to 116 - Kirkpatrick, J.A., opined that s. 25 afforded a complete answer to the accused's s. 15 equality challenge - See paragraphs 117 to 153 - Finch, C.J.B.C., opined that the provisions of s. 25 were not engaged in the circumstances of this case - See paragraph 157 - Levine, J.A., declined to express any views as to the possible application of s. 25 - See paragraph 162.

Civil Rights - Topic 8485

Canadian Charter of Rights and Freedoms - Interpretation - Particular subjects - Aboriginal rights (s. 25) - The accused were licensed commercial fishers who engaged in a protest fishery by fishing during a 24 hour period when only three First Nations Bands were licenced to fish under a government policy called the Pilot Sales Program (PSP) - The accused were charged under the Fisheries Act with fishing for salmon during a closure - The accused appealed, alleging that the PSP and 24 hour communal licence created a racially segregated commercial fishery contrary to s. 15(1) of the Charter - One of the First Nations Bands argued that s. 25 of the Charter should be applied to defeat the s. 15(1) claim - The British Columbia Court of Appeal, per Kirkpatrick, J.A., opined that s. 25 afforded a complete answer to the accused's s. 15 equality challenge - Kirkpatrick, J.A., opined that the benefit of the 24 hour communal fishing lisence granted by the government to the three First Nations Bands was protected by s. 25 as one of the "other rights or freedoms" that pertained to the aboriginals peoples of Canada - The accused sought to eliminate the PSP via a s. 15 Charter challenge - Kirkpatrick, J.A., stated that s. 25 existed to prevent such abrogation - Therefore the accused's Charter challenge failed at the threshold of the s. 25 analysis - See paragraphs 117 to 153.

Civil Rights - Topic 8485

Canadian Charter of Rights and Freedoms - Interpretation - Particular subjects - Aboriginal rights (s. 25) - Section 25 of the Charter provided that "the guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada ..." - The British Columbia Court of Appeal, per Kirkpatrick, J.A., discussed the meaning of the phrase "other rights or freedoms" as used in s. 25 and when s. 25 was applicable - Kirkpatrick, J.A., construing s. 25 by considering its ordinary meaning in the context of s. 25 and the Constitution as a whole, stated that the "aboriginal peoples" could be described as a particular aboriginal nation, community or ethnic group, meaning that group rights or freedoms rather than individual rights or freedoms were protected by s. 25 - To be protected under s. 25 those other rights and freedoms had to relate to a significant aspect of aboriginal life, culture or heritage and related to aboriginals as aboriginals - Kirkpatrick, J.A., stated that s. 25 should be interpreted robustly - The protection afforded by s. 25 extended beyond aboriginal and treaty rights - In addition, s. 25 was only engaged if the Charter remedy sought would abrogate or derogate from the right in question - Kirkpatrick, J.A., set out a three part test (i.e., three questions) for determining whether s. 25 applied in a given case - If those questions were answered in the affirmative, there was no need to embark on a s. 15 analysis - See paragraphs 120 to 153.

Civil Rights - Topic 8485

Canadian Charter of Rights and Freedoms - Interpretation - Particular subjects - Aboriginal rights (s. 25) - Section 25 of the Charter provided that "the guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada ..." - The Crown argued that the scope of the "other rights or freedoms" referred to in s. 25 was limited by application of the limited class or ejusdem generis rule of statutory interpretation - The Crown claimed that the specific sources of rights or freedoms set out in s. 25 shared common characteristics that narrowed the scope of the protection offered by s. 25 - To fall within that narrow scope, the Crown argued that the "other rights or freedoms" had to play a critical role in protecting distinctive aboriginal cultures and, even then, only if the source of those rights or freedoms was constitutional or quasi-constitutional in nature would s. 25 apply - The British Columbia Court of Appeal per Kirkpatrick, J.A., opined that it was not necessary to have recourse to the ejusdem generis rule in order to construe s. 25 - Kirkpatrick, J.A., stated that even if she were to find s. 25 to be ambiguous, she did not accept the approach to interpretation urged by the Crown - Rather, Kirkpatrick, J.A., stated that the ejusdem generis rule of statutory construction was of limited value when discussing statutes related to aboriginal peoples, rather ambiguities should be resolved in favour of aboriginal peoples - Therefore the meaning of "other rights or freedoms" that pertained to the aboriginal peoples of Canada could be determined by considering the ordinary meaning of the word in the context of s. 25 and the Constitution as a whole - See paragraphs 122 to 124.

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What constitutes a breach of s. 15 - [See Civil Rights - Topic 5502 ].

Constitutional Law - Topic 7288

Provincial jurisdiction (s. 92) - Property and civil rights - Regulatory statutes - Fish and game - [See second Fish and Game - Topic 976 ].

Fish and Game - Topic 161

Fisheries - Regulation - General - The accused were licensed commercial fishers who engaged in a protest fishery by fishing during a 24 hour period when only three First Nations Bands were licenced to fish under a government policy called the Pilot Sales Program (PSP) - PSP was a policy that was implemented by Ministerial discretion as a means of managing the salmon fishery while allowing aboriginal commercial fishing - The accused were charged under the Fisheries Act with fishing for salmon during a closure - The accused appealed, arguing that the words "in his absolute discretion" in s. 7 of the Fisheries Act, by which Parliament delegated to the Minister the power to issue licences to fish, did not authorize the Minister to create exclusive fisheries and to issue race-based licences - The British Columbia Court of Appeal, per Finch, C.J.B.C., Mackenzie, Low, Levine and Kirkpatrick, JJ.A., held that the legal authority for the communal fishing was not s. 7 of the Act, but rather the communal licences were granted pursuant to s. 43 of the Aboriginal Communal Fishing Licences Regulations - See paragraphs 52 and 97.

Fish and Game - Topic 976

Indian, Inuit and Métis rights - Right to fish and regulation of Indian fishery - Licensing - [See Fish and Game - Topic 161 ].

Fish and Game - Topic 976

Indian, Inuit and Métis rights - Right to fish and regulation of Indian fishery - Licensing - The accused were licensed commercial fishers who engaged in a protest fishery by fishing during a 24 hour period when only three First Nations Bands were licenced (i.e., given a communal licence) to fish under a government policy called the Pilot Sales Program (PSP) - PSP was a policy that was implemented by Ministerial discretion as a means of managing the salmon fishery while allowing aboriginal commercial fishing - The accused were charged under the Fisheries Act with fishing for salmon during a closure - The accused appealed, arguing that the PSP and the communal licences issued in furtherance of that policy were ultra vires the federal government because they infringed the exclusive power of the province over property and civil rights by creating an "exclusive fishery" for the three First Nations Bands, which was based on bloodlines and excluded most Canadians - The British Columbia Court of Appeal, per Finch, C.J.B.C., Mackenzie, Low, Levine and Kirkpatrick, JJ.A., held that the communal licence did not create an exclusive fishery and the issuance of it was within the delegated authority of Parliament - There was no infringement of the provincial power over property and civil rights - See paragraphs 53 to 66, 97 and 117.

Indians, Inuit and Métis - Topic 508

Rights - Abrogation (Charter, s. 25) - [See all Civil Rights - Topic 8485 ].

Statutes - Topic 2582

Interpretation - Interpretation of words and phrases - Ejusdem generis rule - Cases where rule inapplicable - [See fourth Civil Rights - Topic 8485 ].

Words and Phrases

Other rights or freedoms - Kirkpatrick, J.A., of the British Columbia Court of Appeal, discussed the meaning of this phrase as used in s. 25 of the Canadian Charter of Rights and Freedoms, 1982 - See paragraphs 120 to 153.

Cases Noticed:

R. v. Huovinen (G.E.) et al. (2000), 140 B.C.A.C. 260; 229 W.A.C. 260; 146 C.C.C.(3d) 301; 2000 BCCA 427, leave to appeal denied (2001), 268 N.R. 399; 155 B.C.A.C. 160; 254 W.A.C. 160 (S.C.C.), refd to. [para. 16].

R. v. Gladstone (W.) et al., [1996] 2 S.C.R. 723; 200 N.R. 189; 79 B.C.A.C. 161; 129 W.A.C. 161; 137 D.L.R.(4th) 648, refd to. [para. 18].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241; 70 D.L.R.(4th) 385, refd to. [paras. 28; 111, 123].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, refd to. [paras. 37, 114, 144].

R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 673; 200 N.R. 321; 80 B.C.A.C. 269; 130 W.A.C. 269, refd to. [paras. 37, 114].

Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12; 206 N.R. 363; 142 D.L.R.(4th) 193, refd to. [para. 62].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [paras. 68, 98, 155].

R. v. Sheldon S., [1990] 2 S.C.R. 254; 110 N.R. 321; 41 O.A.C. 81; 57 C.C.C.(3d) 115, refd to. [para. 72].

R. v. S.S. - see R. v. Sheldon S.

Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 74].

Multani v. Commission scolaire Marguerite-Bourgeoys et al. (2006), 345 N.R. 201; 2006 SCC 6, refd to. [para. 74].

Auton et al. v. British Columbia (Minister of Health) et al., [2004] 3 S.C.R. 657; 327 N.R. 1; 206 B.C.A.C. 1; 338 W.A.C. 1; 2004 SCC 78, refd to. [para. 76].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255; [1989] 2 W.W.R. 289; 56 D.L.R.(4th) 1; 34 B.C.L.R.(2d) 273; 36 C.R.R. 193; 25 C.C.E.L. 255, refd to. [paras. 78, 101].

R. v. Vukelich (M.) (1996), 78 B.C.A.C. 113; 128 W.A.C. 113; 108 C.C.C.(3d) 193 (C.A.), leave to appeal refused [1997] 2 S.C.R. xvi; 216 N.R. 239; 98 B.C.A.C. 80; 161 W.A.C. 80, refd to. [para. 94].

R. v. Lising (R.) et al., [2005] 3 S.C.R. 343; 341 N.R. 147; 217 B.C.A.C. 65; 358 W.A.C. 65; 2005 SCC 66, refd to. [para. 94].

R. v. Pires; R. v. Lising - see R. v. Lising (R.) et al.

Thibaudeau v. Minister of National Revenue, [1995] 2 S.C.R. 627; 182 N.R. 1, refd to. [para. 108].

Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357; 326 N.R. 201, refd to. [para. 112].

Mitchell and Milton Management Ltd. v. Peguis Indian Band et al., [1990] 2 S.C.R. 85; 110 N.R. 241; 67 Man.R.(2d) 81; 71 D.L.R.(4th) 193, refd to. [para. 123].

Corbiere et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1; 173 D.L.R.(4th) 1, refd to. [para.129].

Campbell et al. v. British Columbia (Attorney General) et al., [2000] B.C.T.C. 528; 189 D.L.R.(4th) 333; 2000 BCSC 1123, refd to. [para. 132].

Reference Re Roman Catholic Separate High Schools Funding, [1987] 1 S.C.R. 1148; 77 N.R. 241; 22 O.A.C. 321; 40 D.L.R.(4th) 18, refd to. [para. 134].

Reference Re Bill 30, An Act to Amend the Education Act (Ont.) - see Reference Re Roman Catholic Separate High Schools Funding.

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, refd to. [para.135].

Taku River Tlingit First Nation et al. v. Tulsequah Chief Mine Project (Project Assessment Director) et al., [2004] 3 S.C.R. 550; 327 N.R. 133; 206 B.C.A.C. 132; 338 W.A.C. 132; 2004 SCC 74, refd to. [para. 135].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161; 153 D.L.R.(4th) 193; [1998] 1 C.N.L.R. 14, refd to. [para. 137].

Statutes Noticed:

Aboriginal Communal Fishing Licences Regulations - see Fisheries Act Regulations (Can.).

Canadian Charter of Rights and Freedoms, 1982, sect. 15(1) [para. 67]; sect. 25 [para. 85 et seq.].

Fisheries Act Regulations (Can.), Aboriginal Communal Fishing Licences Regulations, SOR/93-332, sect. 4, sect. 5(1)(l) [para. 38].

Authors and Works Noticed:

Canada, Treaties and Transition: Towards a Sustainable Fishery on Canada's Pacific Coast (McRae-Pearse Report) (2004), generally [para. 22].

Coulson & Forbes on Waters and Land Drainage (6th Ed. 1952), p. 407 [para. 59].

Hogg, Peter W., What is Equality? The Winding Course of Judicial Interpretation (2005), 29 Sup. Ct. L.R.(2d) 39, p. 61 [para. 69].

Hogg, Peter W., Constitutional Law of Canada (2nd Ed. 1985), pp. 564, 567 [para. 130].

McRae-Pearse Report - see Canada, Treaties and Transition: Towards a Sustainable Fishery on Canada's Pacific Coast.

Pearse, Peter H., Turning the Tide: A New Policy for Canada's Pacific Fisheries (1982), generally [para. 31].

Stevens and Hayes, The History and Law of Fisheries (1903), p. 35 [para. 58].

Wildsmith, Aboriginal Peoples and Section 25 of the Canadian Charter of Rights and Freedoms (1988), generally [para. 131].

Counsel:

C. Harvey, Q.C., for the appellants;

C.J. Tobias and A. Semple, for the respondent;

J.J. Arvay, Q.C., and M.G. Underhill, for the intervenor, Tsawwassen First Nation:

A. Brown, for the intervenor, Tseshaht First Nation;

J.K. Lowes, for the intervenor, Sport Fishing Defence Alliance B.C.;

F.M. Kirchner, for the intervenor, Cowichan Tribes.

This appeal was heard at Vancouver, British Columbia, on December 5 to 9, 2005, before Finch, C.J.B.C., Mackenzie, Low, Levine and Kirkpatrick, JJ.A., of the British Columbia Court of Appeal. The judgment of the court was delivered on June 8, 2006, including the following opinions:

Low, J.A. - see paragraphs 1 to 96;

Mackenzie, J.A. - see paragraphs 97 to 116;

Kirkpatrick, J.A. - see paragraphs 117 to 153;

Finch, C.J.B.C. - see paragraphs 154 to 158;

Levine, J.A. - see paragraphs 159 to 162.