R. v. Pamajewon (H.) et al., (1996) 199 N.R. 321 (SCC)

• Judge: McLachlin, Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: August 22, 1996
• Jurisdiction: Canada (Federal)
• Citations: (1996), 199 N.R. 321 (SCC);109 CCC (3d) 275;[1996] 2 SCR 821;199 NR 321;1996 CanLII 161 (SCC);[1996] SCJ No 20 (QL);50 CR (4th) 216;138 DLR (4th) 204;[1996] 4 CNLR 164;27 OR (3d) 95;92 OAC 241

R. v. Pamajewon (H.) (1996), 199 N.R. 321 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Howard Pamajewon and Roger Jones (appellants) v. Her Majesty The Queen (respondent)

Arnold Gardner, Jack Pitchenese and Allan Gardner (appellants) v. Her Majesty The Queen (respondent) and The Attorney General of Canada, The Attorney General of Quebec, The Attorney General of Manitoba, The Attorney General of British Columbia, The Attorney General for Saskatchewan, The Attorney General for Alberta, The Assembly of Manitoba Chiefs, The Federation of Saskatchewan Indian Nations and White Bear First Nations and Delgamuukw, et al. (intervenors)

(24596)

Indexed As: R. v. Pamajewon (H.) et al.

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,

McLachlin, Iacobucci and Major, JJ.

August 22, 1996.

Summary:

The five accused appealed their convic­tions for gambling-related offences under the Criminal Code. The offences related to high stakes gambling conducted on two Indian reserves. The accused claimed that their gambling activities were protected by s. 35(1) of the Constitution Act, 1982, as aboriginal rights or as an incident of the right to self-government by the two First Nations.

The Ontario Court of Appeal, in a judg­ment reported 77 O.A.C. 161, dismissed the appeal, affirming the convictions. The court held that high stakes gambling was not a modern version of an aboriginal right, either as an incident of aboriginal title or as an incident of a right of self-government. The right claimed was not protected by s. 35(1) of the Constitution Act. The accused ap­pealed.

The Supreme Court of Canada dismissed the appeal. The court, in applying the test for aboriginal rights as set out in R. v. Van Der Peet (D.M.), held that the evidence did not establish that the Bands involved had an aboriginal right to participate in, or regulate, high stakes gambling activities on their reserves.

Criminal Law - Topic 928

Gaming and betting - Jurisdiction re Indian reserves - [See Indians, Inuit and Métis - Topic 6019 ].

Indians, Inuit and Métis - Topic 6019

Aboriginal rights - Gambling - Two Indian bands conducted self-regulated high stakes gambling on their reserves in violation of a valid federal criminal law prohibition (Criminal Code, s. 201) - They claimed that their gambling activities were protected by s. 35 of the Constitution Act, 1982, either as aboriginal rights or as an incident of the right to self-government by the two First Nations - The Supreme Court of Canada, in applying the test for aboriginal rights set out in R. v. Van Der Peet (D.M.), held that the evidence did not establish an aboriginal right to participate in, or regulate, high stakes gambling on their reserves - Assuming, without de­ciding, that s. 35(1) included self-govern­ment claims, claims to self-government were no different from other claims to the enjoyment of aboriginal rights and were, accordingly, also measured against the Van Der Peet standard - See paragraphs 23 to 30.

Indians, Inuit and Métis - Topic 6329

Government of Indians - Self-government - Scope of - [See Indians, Inuit and Métis - Topic 6019 ].

Cases Noticed:

Delgamuukw et al. v. British Columbia et al. (1993), 30 B.C.A.C. 1; 49 W.A.C. 1; 104 D.L.R.(4th) 470 (C.A.), refd to. [para. 18].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 19].

R. v. Van der Peet (D.M.) (1996), 200 N.R. 1 (S.C.C.), appld. [para. 23].

R. v. N.T.C. Smokehouse Ltd. (1996), 200 N.R. 321 (S.C.C.), refd to. [para. 33].

R. v. Gladstone (W.) et al. (1996), 200 N.R. 189 (S.C.C.), refd to. [para. 33].

Statutes Noticed:

Constitution Act, 1867, sect. 91(24) [para. 14].

Constitution Act, 1982, sect. 35(1) [para. 1].

Criminal Code, R.S.C. 1985, c. C-46, sect. 201(1) [para. 3]; sect. 206(1)(d) [para. 8].

Indian Act, R.S.C. 1985, c. I-5, sect. 81 [para. 5].

Counsel:

Arthur C. Pape, Clayton C. Ruby and Jean Teillet, for the appellants;

Scott C. Hutchinson, for the respondent;

Ivan G. Whitehall, Q.C., and Kimberley Prost, for the intervenor, Attorney Gen­eral of Canada;

Pierre Lachance, for the intervenor, Attor­ney General of Quebec;

Kenneth J. Tyler and Richard A. Saull, for the intervenor, Attorney General of Manitoba;

Paul J. Pearlman, for the intervenor, At­torney General of British Columbia;

P. Mitch McAdam, for the intervenor, Attorney General for Saskatchewan;

Margaret Unsworth, for the intervenor, Attorney General for Alberta;

Jack R. London, Q.C., and Martin S. Minuk, for the intervenor, Assembly of Manitoba Chiefs;

Mary Ellen Turpel-Lafond and Lesia Ostertag, for the intervenors, Federation of Saskatchewan Indian Nations and White Bear First Nation;

Louise Mandell and Peter W. Hutchins, for the intervenors, Delgamuukw et al.

Solicitors of Record:

Ruby & Edwardh, Toronto, Ontario, for the appellants;

Attorney General for Ontario, Toronto, Ontario, for the respondent;

Attorney General of Canada, Ottawa, Ontario, for the intervenor, Attorney General of Canada;

Attorney General of Quebec, Sainte-Foy, Quebec, for the intervenor, Attorney General of Quebec;

Attorney General of Manitoba, Winnipeg, Manitoba, for the intervenor, Attorney General of Manitoba;

Fuller & Pearlman, Victoria, B.C., for the intervenor, Attorney General of British Columbia;

Attorney General for Saskatchewan, Regina, Saskatchewan, for the intervenor, Attorney General for Saskatchewan;

Attorney General for Alberta, Edmonton, Alberta, for the intervenor, Attorney General for Alberta;

Buchwald, Asper, Gallagher, Henteleff, Winnipeg, Manitoba, for the intervenor, Assembly of Manitoba Chiefs;

Mary Ellen Turpel-Lafond, Saskatoon, Saskatchewan, for the intervenors, Fed­eration of Saskatchewan Indian Nations and White Bear First Nations;

Rush, Crane, Guenther & Adams, Vancouver, B.C., for the intervenors, Delgamuukw et al.

This appeal was heard on February 26, 1996, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.

The judgment of the Supreme Court of Canada was delivered in both official lan­guages on August 22, 1996, and the follow­ing opinions were filed:

Lamer, C.J.C. (La Forest, Sopinka, Gon­thier, Cory, McLachlin, Iacobucci and Major, JJ., concurring) - see para­graphs 1 to 32;

L'Heureux-Dubé, J. - see paragraphs 33 to 44.