R. v. Quipp (F.W.) et al., 2011 BCCA 235

• Judge: Finch, C.J.B.C., Hall, Frankel, Neilson and Bennett, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 01, 2011
• Jurisdiction: British Columbia
• Citations: 2011 BCCA 235;(2011), 305 B.C.A.C. 167 (CA)

R. v. Quipp (F.W.) (2011), 305 B.C.A.C. 167 (CA);

    515 W.A.C. 167

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. MY.032

Regina (respondent) v. Frederick William Quipp Jr. (appellant)

(CA036448)

Regina (respondent) v. Leanne Renae Quipp (appellant)

(CA036449)

Regina (respondent) v. Frederick William Quipp Sr. (appellant)

(CA036450)

Regina (respondent) v. Frederick William Quipp Sr. (appellant) and Musqueam Indian Band (intervenor)

(CA036451; 2011 BCCA 235)

Indexed As: R. v. Quipp (F.W.) et al.

British Columbia Court of Appeal

Finch, C.J.B.C., Hall, Frankel, Neilson and Bennett, JJ.A.

May 13, 2011.

Summary:

The accused were charged with unauthorized fishing on the Fraser River.

The British Columbia Provincial Court convicted the accused. The accused appealed.

The British Columbia Supreme Court dismissed the appeal. The accused applied for leave to appeal.

The British Columbia Court of Appeal, in a decision reported at [2010] B.C.A.C. Uned. 73, granted leave to appeal on the issue of whether the priority granted to the aboriginal persons to fish for food, social and ceremonial purposes included a priority in time.

The British Columbia Court of Appeal dismissed the appeals.

Fish and Game - Topic 805

Indian, Inuit and Métis rights - General principles - Scope of rights - Limitations - Conservation - The aboriginal accused were charged with unauthorized fishing on the Fraser River - They had been fishing at times when closures had been imposed by the Department of Fisheries and Oceans (DFO) - The accused were convicted - The summary conviction appeal judge sustained the convictions, concluding that the conduct of DFO amounted to a minimal infringement of the accused's right to fish, that DFO had met its obligation to consult with and accommodate the first nation, and that the accused were not entitled to compensation for any infringement of their Aboriginal rights - The accused appealed - The accused acknowledged that they were fishing at the material times otherwise than under the authority of a licence - The Crown acknowledged that it had infringed the accused's Aboriginal right to fish for food, social, and ceremonial purposes (FSC purposes) - The issue that divided the parties was the question of justification based on conservation considerations - The British Columbia Court of Appeal dismissed the appeals - The court stated that "where the Crown seeks to justify the infringement of a s. 35(1) Aboriginal right, the two fundamental questions for the court are (1) was the Crown acting in pursuit of a valid legislative objective? And (2), was the Crown's conduct consistent with the fiduciary relationship between the Crown and Aboriginal peoples? Where the right in issue is a right to fish for FSC purposes and the infringing conduct is alleged to have been in pursuit of conservation, [R. v. Sparrow, SCC 1990] demands that the FSC fishery be accorded priority of allocation. As the appeal judge correctly noted, in assessing whether the Crown has met the burden of justifying an infringement of an Aboriginal right, the standard by which the Crown's conduct will be evaluated is one of reasonableness in light of the circumstances that existed at the time of the infringement" - The summary conviction appeal judge appreciated that the FSC fishery might be entitled to priority in time in some circumstances and correctly apprehended the doctrine of priority - She correctly concluded that the accused were not entitled to priority in time.

Indians, Inuit and Métis - Topic 6018.1

Aboriginal rights - Limitations on - [See Fish and Game - Topic 805 ].

Cases Noticed:

R. v. Aleck, [2001] 2 C.N.L.R. 118; 2000 BCPC 177, refd to. [para. 16].

R. v. Aleck (A.) et al., [2008] B.C.T.C. Uned. 718; 2008 BCSC 1096, refd to. [para. 19].

R. v. Douglas (S.) et al., [2008] B.C.T.C. Uned. 720; 2008 BCSC 1098, refd to. [para. 19].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, appld. [para. 20].

R. v. Douglas (K.A.) et al. (2007), 242 B.C.A.C. 164; 400 W.A.C. 164; 2007 BCCA 265, leave to appeal refused (2007), 383 N.R. 382; 266 B.C.A.C. 317; 449 W.A.C. 317 (S.C.C.), consd. [para. 21].

R. v. Adams (G.W.), [1996] 3 S.C.R. 101; 202 N.R. 89, refd to. [para. 31].

R. v. Jack et al., [1980] 1 S.C.R. 294; 28 N.R. 162, refd to. [para. 32].

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, consd. [para. 34].

R. v. Denny et al. (1990), 94 N.S.R.(2d) 253; 247 A.P.R. 253; 55 C.C.C.(3d) 322 (C.A.), refd to. [para. 44].

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. 46].

R. v. Tommy (E.L.) et al., [2008] B.C.T.C. Uned. 717; 2008 BCSC 1095, refd to. [para. 46].

R. v. Nikal (J.B.), [1996] 1 S.C.R. 1013; 196 N.R. 1; 74 B.C.A.C. 161; 121 W.A.C. 161, refd to. [para. 48].

Counsel:

C.J. Nowlin, for the appellants;

C.J. Tobias, Q.C., and O.L. Bick, for the respondent;

M. Morellato, Q.C., and C. Reeves, for the intervenor, Musqueam Indian Band.

These appeals were heard on March 1, 2011, at Vancouver, B.C., by Finch, C.J.B.C., Hall, Frankel, Neilson and Bennett, JJ.A., of the British Columbia Court of Appeal. The following reasons for judgment of the Court of Appeal were delivered by Hall, J.A., on May 13, 2011.