R. v. Langan (E.),

• Jurisdiction: Saskatchewan
• Judge: Whitmore, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Citation: 2013 SKQB 256,(2013), 425 Sask.R. 42 (QB)
• Date: 27 June 2013

R. v. Langan (E.) (2013), 425 Sask.R. 42 (QB)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. JL.043

Eugene Langan v. Her Majesty the Queen

(2011 Q.B. No. 271; 2013 SKQB 256)

Indexed As: R. v. Langan (E.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Yorkton

Whitmore, J.

June 27, 2013.

Summary:

The accused was charged with angling without a licence at Lake of the Prairies, Saskatchewan, contrary to s. 11(1) of the Fisheries Regulations of Saskatchewan. The accused asserted that s. 11(1) did not apply to him because (1) it infringed his Aboriginal right, as a Métis person, to fish for food pursuant to s. 35 of the Constitution Act, and (2) discriminated against him and therefore violated his s. 15(1) Charter right to equal protection and equal benefit of the law without discrimination.

The Saskatchewan Provincial Court, in a decision reported at 383 Sask.R. 57, rejected the assertions and found the accused guilty as charged. The accused appealed.

The Saskatchewan Court of Queen's Bench dismissed the appeal.

Civil Rights - Topic 5646

Equality and protection of the law - Particular cases - Indians and Métis - The accused was charged with angling without a licence at Lake of the Prairies, Saskatchewan, contrary to s. 11(1) of the Fisheries Regulations of Saskatchewan - The accused asserted that s. 11(1) infringed his s. 15(1) Charter right to equal protection and equal benefit of the law without discrimination - The accused asserted that a person holding a Manitoba fishing licence could, by virtue of the authority of the Manitoba Angler's Guide, fish on Lake of the Prairies, in Saskatchewan, without holding a Saskatchewan fishing licence - As a result, because he need not hold a Manitoba licence (given the Manitoba government's position that he had s. 35 rights in the San Clara area) he was being discriminated against by the Saskatchewan government because they did not agree that he had an Aboriginal right to fish for food on Lake of the Prairies - The trial judge rejected the assertion - The issue was whether s. 11(1) discriminated against the accused, not whether the decision to charge the accused, in itself, constituted such discrimination - The Fisheries Regulations, including s. 11(1), were a law of general application that did not create any personal or group distinctions that could form the basis of a s. 15 claim - Further, s. 11(1)'s application did not create or perpetuate any disadvantage to the accused or to any other group to which the provision applied - The Saskatchewan Court of Queen's Bench dismissed an appeal - The crux of the accused's complaint was not that he had been discriminated against, but that he had not been afforded special treatment by exempting him from requiring a fishing licence - The laws in one province might be more onerous that they were in another province, but as long as they were of general application, they were in compliance with s. 15 - See paragraphs 59 to 63.

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 5646].

Fish and Game - Topic 965

Indian, Inuit and Métis rights - Right to fish and regulation of Indian fishery - Métis - [See Civil Rights - Topic 5646].

Fish and Game - Topic 965

Indian, Inuit and Métis rights - Right to fish and regulation of Indian fishery - Métis - The accused was charged with angling without a licence at Lake of the Prairies, Saskatchewan, contrary to s. 11(1) of the Fisheries Regulations of Saskatchewan - The accused asserted that s. 11(1) infringed his Aboriginal right, as a Métis person, to fish for food pursuant to s. 35 of the Constitution Act - The trial judge held that the Aboriginal right to fish for food was contextual and site specific - The accused was fishing a short distance into Saskatchewan and a few kilometres from San Clara, Manitoba, where he resided - The court characterized the right in question to be the right to fish for food in the environs of San Clara - The court concluded that the Métis community in San Clara and environs was formed in 1906 when Métis people moved from North Dakota to homestead that area - The court further concluded that by 1885, there was effective European control in the San Clara area - As a result, an historic rights-bearing community did not exist in the San Clara area at the time of effective European control and s. 11(1) did not infringe the accused's right to fish for food - If such a community existed at the time of effective control, the court was satisfied that the accused had an ancestral connection to it and was an accepted member of present day Métis community in San Clara and that fishing for food on the Assiniboine River (which included Lake of the Prairies) was an important practice amongst the community's members - The court did not consider the issue of continuity between the historic practice and the contemporary right asserted by the accused - The Saskatchewan Court of Queen's Bench dismissed the accused's appeal - If the trial judge was stating that the historic rights-bearing community had to be in the same environs as the site-specific right, it disagreed - However, the court was satisfied that the judge correctly applied the applicable test - There was ample evidence to support his finding that no historic rights-bearing community existed in San Clara before the date of effective European control - See paragraphs 25 to 58.

Indians, Inuit and Métis - Topic 806

Personal or legal rights - General - Métis - [See second Fish and Game - Topic 965].

Indians, Inuit and Métis - Topic 6005

Aboriginal rights - Nature and scope of - [See second Fish and Game - Topic 965].

Indians, Inuit and Métis - Topic 6012

Aboriginal rights - Evidence and proof - [See second Fish and Game - Topic 965].

Indians, Inuit and Métis - Topic 6017

Aboriginal rights - Infringement - [See second Fish and Game - Topic 965].

Trials - Topic 1182.2

Summary convictions - Appeals - Scope of appeal - The accused appealed his conviction for angling without a licence at Lake of the Prairies, Saskatchewan, contrary to s. 11(1) of the Fisheries Regulations of Saskatchewan - The Saskatchewan Court of Queen's Bench stated that the standard of review was correctness for questions of law and palpable and overriding error for questions of fact and mixed fact and law - See paragraphs 18 to 20.

Cases Noticed:

R. v. Powley (S.) et al., [2003] 2 S.C.R. 207; 308 N.R. 201; 177 O.A.C. 201; 2003 SCC 43, refd to. [para. 6].

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. [para. 8].

R. v. Helm (B.E.) (2011), 368 Sask.R. 115; 2011 SKQB 32, refd to. [para. 18].

R. v. Hirsekorn (G.) (2011), 520 A.R. 60; 2011 ABQB 682, refd to. [para. 19].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 22].

R. v. Labillois (W.) (2006), 300 N.B.R.(2d) 99; 782 A.P.R. 99; 2006 NBCA 68, refd to. [para. 23].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 24].

R. v. Hirsekorn (G.) et al., [2010] A.R. Uned. 880; 2010 ABPC 385, refd to. [para. 33].

R. v. Laviolette (R.) (2005), 267 Sask.R. 291; 2005 SKPC 70, refd to. [para. 53].

R. v. Belhumeur (D.J.) (2007), 301 Sask.R. 292; 2007 SKPC 114, refd to. [para. 53].

R. v. Ochapowace Ski Resort Inc., [2002] 4 C.N.L.R. 76; 225 Sask.R. 225; 2002 SKPC 84, refd to. [para. 53].

Minister of National Revenue v. Ochapowace Ski Resort Inc. - see R. v. Ochapowace Ski Resort Inc.

R. v. Kapp (J.M.) et al., [2008] 2 S.C.R. 483; 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, refd to. [para. 59].

Statutes Noticed:

Fisheries Act (Saskatchewan) Regulations (Sask.), Fisheries Regulations, Reg. 1, sect. 11(1) [para. 1].

Fisheries Regulations - see Fisheries Act (Saskatchewan) Regulations (Sask.).

Counsel:

Eugene Langan and Charles L. Vermeylen, spokesperson for Eugene Langan, self-represented;

R. James Fyfe, for the Crown.

This appeal was heard by Whitmore, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Yorkton, who delivered the following judgment on June 27, 2013.