R. v. Manuel (N.V.), (2008) 254 B.C.A.C. 69 (CA)

• Judge: Donald, Levine and Kirkpatrick, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 20, 2007
• Jurisdiction: British Columbia
• Citations: (2008), 254 B.C.A.C. 69 (CA);2008 BCCA 143

R. v. Manuel (N.V.) (2008), 254 B.C.A.C. 69 (CA);

    426 W.A.C. 69

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. AP.023

Regina (respondent) v. Beverly Phyllis Manuel and Nicole Valencia Manuel (appellants)

(CA033173; CA033174; 2008 BCCA 143)

Indexed As: R. v. Manuel (N.V.)

British Columbia Court of Appeal

Donald, Levine and Kirkpatrick, JJ.A.

April 3, 2008.

Summary:

After participating in a roadblock, the accused were convicted of intimidation for unlawfully obstructing a highway, contrary to s. 423(1) of the Criminal Code. They appealed, asserting a colour of right defence based on their honest belief that, in accordance with aboriginal law, they had a legal right to block the road.

The British Columbia Supreme Court, in a decision reported at [2004] B.C.T.C. 1475, dismissed the appeal. The accused sought leave to appeal.

The British Columbia Court of Appeal, per Levine, J.A., in a decision reported at 239 B.C.A.C. 72; 396 W.A.C. 72, granted leave to appeal. The appeal proceeded.

The British Columbia Court of Appeal dismissed the appeal.

Criminal Law - Topic 214.1

General principles - Common law defences - Colour of right - After participating in a roadblock, the accused were charged with intimidation under s. 423(1)(g) of the Criminal Code for unlawfully obstructing a highway - They asserted a colour of right defence based on their honest belief that, under aboriginal law, they had a legal right to block the road - The trial judge convicted the accused and the summary conviction appeal court dismissed their appeal - The accused appealed - The British Columbia Court of Appeal discussed the defences of colour of right and mistake of fact - Because the Code did not expressly provide that the colour of right defence applied to s. 423, the parties agreed that the defence was mistake of fact and that, for the purposes of this case, the defences of colour of right and mistake of fact were the same - The defence claimed that the accused honestly believed in a set of circumstances which, if they existed, would mean that their people held title to the land over which the road passed and that they had the legal right to exclude others from using the land with the result that they did not have the intent to compel others to abstain from doing something the others had the lawful right to do - Whether the accused's beliefs were true was not in issue - If their beliefs were honestly held or there was a reasonable doubt that their beliefs were honestly held, the defence would be made out - Whether reasonable grounds existed for the beliefs was relevant in determining whether the beliefs held were honest - See paragraphs 9 to 20.

Criminal Law - Topic 214.1

General principles - Common law defences - Colour of right - After participating in a roadblock, the accused were convicted of intimidation under s. 423(1)(g) of the Criminal Code for unlawfully obstructing a highway - The trial judge rejected their defence based on colour of right, finding that the accused's belief that, under aboriginal law, they had a right to block the road was not a belief in law, but in a moral right - The summary conviction appeal was dismissed - The accused appealed - The parties agreed that the defence to the intimidation charge was mistake of fact and that, for the purposes of this case, the defences of colour of right and mistake of fact were the same - The British Columbia Court of Appeal dismissed the appeal - The court discussed the distinction between legal right and moral rights - The accused had rightly objected to the trial judge's characterization of their beliefs in their people's title to the land and the law of the Creator as beliefs in moral and not legal rights - The basis for defining and establishing aboriginal rights and title in law included the "aboriginal perspective" and the perspective of the common law - The aboriginal perspective (i.e., evidence of the history, culture, use of land and resources and aboriginal systems of law) was at the root of aboriginal law and was part of Canadian law, not a separate legal system or moral code - It was incorrect to characterize their beliefs as beliefs in moral rights - See paragraphs 46 to 54.

Criminal Law - Topic 214.1

General principles - Common law defences - Colour of right - After participating in a roadblock, the accused were convicted of intimidation under s. 423(1)(g) of the Criminal Code for unlawfully obstructing a highway - The trial judge rejected their defence based on colour of right, finding that the accused's belief that, under aboriginal law, they had a right to block the road was confined to a moral right, rather than a legal right - The summary conviction appeal was dismissed - The accused appealed - The parties agreed that the defence to the intimidation charge was mistake of fact and that, for the purposes of this case, the defences of colour of right and mistake of fact were the same - The British Columbia Court of Appeal dismissed the appeal - The issue was not whether the accused's beliefs were about moral or legal rights - The issue was whether the accused's beliefs that title to the land gave rise to a legal right to block the road were honest, in light of the accused's knowledge that the legal rights claimed by them were unadjudicated, unconfirmed and in conflict with established common law property rights - It was not a matter of choosing one system of law over another or of rejecting the accused's beliefs - The question was whether there was any reasonable doubt that the accused honestly believed that they had the legal right to block the road - The accused were familiar with the Delgamuukw decision (S.C.C.) and the concepts of aboriginal law and aboriginal title - They had to have been aware of the processes for reconciliation of aboriginal and common law perspectives on land ownership and that none of those processes included blockades of highways - Such "self-help" remedies were not condoned anywhere in Canadian law, including aboriginal, common and criminal law - There was no error in the trial judge's conclusion that the accused did not honestly believe that they had the legal right to block the road - See paragraphs 55 to 63.

Criminal Law - Topic 214.2

General principles - Common law defences - Mistake of fact - [See all Criminal Law - Topic 214.1 ].

Indians, Inuit and Métis - Topic 801

Personal or legal rights - General - Legal and moral rights distinguished - [See second Criminal Law - Topic 214.1 ].

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 6].

R. v. Watson (P.F.) (1999), 176 Nfld. & P.E.I.R. 263; 540 A.P.R. 263; 137 C.C.C.(3d) 422 (Nfld. C.A.), refd to. [para. 10].

R. v. DeMarco (1973), 13 C.C.C.(2d) 369 (Ont. C.A.), refd to. [para. 10].

R. v. Howson, [1966] 3 C.C.C. 348 (Ont. C.A.), refd to. [para. 10].

R. v. Roche (1985), 9 O.A.C. 391; 20 C.C.C.(3d) 524 (C.A.), refd to. [para. 13].

R. v. Tolson (1889), 23 Q.B.D. 168 (C.C.R.), refd to. [para. 13].

R. v. Pappajohn, [1980] 2 S.C.R. 120; 32 N.R. 104, refd to. [para. 13].

R. v. Davidson (1971), 3 C.C.C.(2d) 509 (B.C.C.A.), refd to. [para. 14].

Beaver v. R., [1957] S.C.R. 531; 118 C.C.C. 129, refd to. [para. 20].

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, refd to. [para. 32].

R. v. Pena (M.J.) et al., [1997] B.C.T.C. Uned. 864; 148 D.L.R.(4th) 372 (S.C.), refd to. [para. 36].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 40].

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; 137 D.L.R.(4th) 289, refd to. [para. 40].

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207; 2001 SCC 33, refd to. [para. 40].

R. v. Marshall (S.F.) et al.; R. v. Bernard (J.), [2005] 2 S.C.R. 220; 336 N.R. 22; 287 N.B.R.(2d) 206; 750 A.P.R. 206; 2005 SCC 43, refd to. [para. 40].

R. v. Cinq-Mars (1989), 51 C.C.C.(3d) 248 (Que. C.A.), refd to. [para. 49].

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. 59].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al. (2000), 138 B.C.A.C. 146; 226 W.A.C. 146; 187 D.L.R.(4th) 664; 2000 BCCA 315, refd to. [para. 61].

Counsel:

C. Nowlin and L. Sturgess, for the appellants;

S. Brown and P.E. Yearwood, for the respondent.

This appeal was heard at Vancouver, British Columbia, on November 20, 2007, by Donald, Levine and Kirkpatrick, JJ.A., of the British Columbia Court of Appeal. On April 3, 2008, Levine, J.A., delivered the following written reasons for judgment for the court.