R. v. Desautel

R. v. Desautel
Collection
Supreme Court Judgments
Date
2021-04-23
Neutral citation
2021 SCC 17
Report
[2021] 1 SCR 533
Case number
38734
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas
On appeal from
British Columbia
Subjects
Constitutional law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Desautel, 2021 SCC 17, [2021] 1 S.C.R. 533
Appeal Heard: October 8, 2020 Judgment Rendered: April 23, 2021 Docket: 38734
Between:
Her Majesty The Queen
Appellant
and
Richard Lee Desautel
Respondent
- and -
Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of New Brunswick, Attorney General of Saskatchewan, Attorney General of Alberta, Attorney General of the Yukon Territory, Peskotomuhkati Nation, Indigenous Bar Association in Canada, Whitecap Dakota First Nation, Grand Council of the Crees (Eeyou Istchee), Cree Nation Government, Okanagan Nation Alliance, Mohawk Council of Kahnawà:ke, Assembly of First Nations, Métis National Council, Manitoba Metis Federation Inc., Nuchatlaht First Nation, Congress of Aboriginal Peoples, Lummi Nation and Métis Nation British Columbia
Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
Reasons for Judgment: (paras. 1 to 93)
Rowe J. (Wagner C.J. and Abella, Karakatsanis, Brown, Martin and Kasirer JJ. concurring)
Dissenting Reasons: (paras. 94 to 142)
Côté J.
Dissenting Reasons: (para. 143)
Moldaver J.
Her Majesty The Queen Appellant
v.
Richard Lee Desautel Respondent
and
Attorney General of Canada,
Attorney General of Ontario,
Attorney General of Quebec,
Attorney General of New Brunswick,
Attorney General of Saskatchewan,
Attorney General of Alberta,
Attorney General of the Yukon Territory,
Peskotomuhkati Nation,
Indigenous Bar Association in Canada,
Whitecap Dakota First Nation,
Grand Council of the Crees (Eeyou Istchee),
Cree Nation Government,
Okanagan Nation Alliance,
Mohawk Council of Kahnawà:ke,
Assembly of First Nations,
Métis National Council,
Manitoba Metis Federation Inc.,
Nuchatlaht First Nation,
Congress of Aboriginal Peoples,
Lummi Nation and
Métis Nation British Columbia Interveners
Indexed as: R. v. Desautel
2021 SCC 17
File No.: 38734.
2020: October 8; 2021: April 23.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
on appeal from the court of appeal for british columbia
Constitutional law — Aboriginal peoples — Aboriginal rights — Hunting — Citizen and resident of United States charged under provincial wildlife legislation with hunting in British Columbia without licence and while not being resident of province — Charges defended on basis of constitutionally‑protected Aboriginal right to hunt in traditional territory of ancestors — Whether Aboriginal people located outside Canada can assert Aboriginal rights under Canadian Constitution — If so, whether provincial wildlife legislation of no force or effect by reason of Aboriginal right — Constitutional Act, 1982, s. 35(1).
In October 2010, D, a citizen and resident of the United States of America, shot a cow‑elk in British Columbia. He was charged with hunting without a licence contrary to s. 11(1) of British Columbia’s Wildlife Act and hunting big game while not being a resident of the province contrary to s. 47(a) of the Act. D defended the charges on the basis that he had an Aboriginal right to hunt protected by s. 35(1) of the Constitution Act, 1982 , as he is a member of the Lakes Tribe of the Colville Confederated Tribes based in the State of Washington, a successor group of the Sinixt people, and he shot the elk within the ancestral territory of the Sinixt in British Columbia.
At trial, it was accepted that the date of first contact between the Sinixt and Europeans was in 1811. At that time, the Sinixt were engaged in hunting, fishing, and gathering in their ancestral territory, which extended into what is now Washington State to the south, and into what is now British Columbia to the north. Until around 1870, the Sinixt continued their activities in the northern portion of their territory, located in Canada. In the course of time, a constellation of factors made the Sinixt people move to the United States. The trial judge did not find that the move was voluntary. Until 1930, members of the Lakes Tribe continued to hunt in British Columbia, despite living in Washington State. After 1930, despite periods in which no hunting took place, the Lakes Tribe continued to have a connection to the land where their ancestors hunted in British Columbia.
The trial judge held that D was a member of the Lakes Tribe, and that the rights of the Sinixt continued with the Lakes Tribe. She applied the test for Aboriginal rights set out in R. v. Van der Peet, [1996] 2 S.C.R. 507, and held that D was exercising an Aboriginal right to hunt for food, social and ceremonial purposes guaranteed by s. 35(1) of the Constitution Act, 1982 . D’s Aboriginal right remained in existence and was protected by s. 35(1), despite the Lakes Tribe’s departure from the Canadian part of their traditional territory and notwithstanding a period of dormancy in the exercise of the right. The trial judge held that the right was infringed by the Wildlife Act and the infringement was not justified. D was acquitted. The Crown’s two subsequent appeals were dismissed. It now appeals to the Court, raising, as a constitutional question, whether the relevant provisions of the Wildlife Act are of no force or effect with respect to D, by reason of an Aboriginal right within the meaning of s. 35(1) of the Constitution Act, 1982 .
Held (Moldaver and Côté JJ. dissenting): The appeal should be dismissed and the constitutional question answered in the affirmative.
Per Wagner C.J. and Abella, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ.: Persons who are not Canadian citizens and who do not reside in Canada can exercise an Aboriginal right that is protected by s. 35(1) of the Constitution Act, 1982 . On a purposive interpretation of s. 35(1), the expression “aboriginal peoples of Canada” means the modern‑day successors of Aboriginal societies that occupied Canadian territory at the time of European contact, and this may include Aboriginal groups that are now outside Canada. As D is a member of the Lakes Tribe, which is a modern successor of the Sinixt, and as D’s claim satisfies the Van der Peet test for an Aboriginal right under s. 35(1), ss. 11(1) and 47(a) of the Wildlife Act are of no force or effect with respect to him.
In order to assert rights protected under s. 35(1) of the Constitution Act, 1982 , an Aboriginal group must be part of the “aboriginal peoples of Canada”. This is a threshold question, in the sense that if a group is not an Aboriginal people of Canada, there is no need to proceed to the test for Aboriginal rights set out in Van der Peet. Section 35(1) must be interpreted in a purposive way. A review of the jurisprudence shows that s. 35(1) serves to recognize the prior occupation of Canada by Aboriginal societies and to reconcile their contemporary existence with Crown sovereignty. These purposes are expressed in the doctrinal structure of Aboriginal law, which gives effect to rights and relationships that arise from the prior occupation of Canada by Aboriginal societies. Because the doctrine of Aboriginal rights arises from the simple fact of prior occupation, the Aboriginal peoples of Canada under s. 35(1) are the modern successors of those Aboriginal societies that occupied Canadian territory at the time of European contact, even if they are now outside Canada.
An interpretation of the expression “aboriginal peoples of Canada” in s. 35(1) that includes Aboriginal peoples who were here when the Europeans arrived and later moved or were forced to move elsewhere, or on whom international boundaries were imposed, reflects the purpose of reconciliation. By contrast, an interpretation that excludes Aboriginal peoples who were forced to move out of Canada would risk perpetuating the historical injustice suffered by Aboriginal peoples at the hands of Europeans. As well, it bears emphasis that s. 35(1) did not create Aboriginal rights. The practices, customs and traditions that underlie these rights existed before 1982. An interpretation of s. 35(1) that limits its scope to those Aboriginal peoples who were located in Canada in 1982 would fail to give effect to this point by treating s. 35(1) as the source of Aboriginal rights.
If the threshold question is met, the analysis then proceeds under Van der Peet. The Van der Peet test is the same for groups outside Canada as for groups within Canada. That Aboriginal rights must be grounded in the existence of a historic and present‑day community, and that modern‑day claimants must establish a connection with the pre‑sovereignty group upon whose practices they rely, is so for Aboriginal groups inside or outside Canada. There is no additional requirement, for groups outside Canada, of recognition by a related Aboriginal collective residing in Canada. This requirement would place a higher burden on Aboriginal communities who seek to claim rights if the group moved, was forced to move, or was divided by the creation of an international border. It would risk defining Aboriginal rights in a manner that excludes some of those the provision was intended to protect. Moreover, it would raise myriad practical difficulties, such as which group within Canada has a say in the recognition of a claimant located outside Canada, where there are competing groups, which body can represent a collective residing in Canada, and what happens if there is no related modern collective residing in Canada.
Under the Van der Peet analysis, courts must characterize the right claimed in light of the pleadings and evidence; determine whether the claimant has proven that a relevant pre‑contact practice, tradition or custom existed and was integral to the distinctive culture of the pre‑contact society; and determine whether the claimed modern right is demonstrably connected to, and reasonably regarded as a continuation of, the pre‑contact practice. Continuity plays a role both at the second and the third stages of the Van der Peet analysis. At the second stage, showing that a practice is integral to the claimant’s culture today, and that it has continuity with pre‑contact times, can count as proof that the practice was integral to the claimant’s culture pre‑contact. At the third stage, the question is whether the modern practice which is claimed to be an exercise of an Aboriginal right is connected to, and reasonably seen as a continuation of, the pre‑contact practice. Continuity with the pre‑contact practice is required in order for the claimed activity to fall within the scope of the right. However, an unbroken chain of continuity is not required; it is not unusual for the exercise of a right to lapse for a period of time. The assessment of continuity, both at the second and third stages, is a highly fact‑specific exercise. The weighing of evidence in Aboriginal claims is generally the domain of the trial judge, who is best situated to assess the evidence, and is consequently accorded significant latitude in this regard.
In the present case, the threshold question is met. The trial judge found as a fact that the Sinixt occupied territory in what is now British Columbia at the time of European contact, and that the Lakes Tribe are a modern successor of the Sinixt. The migration of the Lakes Tribe from British Columbia to a different part of their traditional territory in Washington State did not cause the group to lose its identity or its status as a successor to the Sinixt. Accordingly, the Lakes Tribe is an Aboriginal people of Canada. Then, with respect to the Van der Peet test, the trial judge found, based on the evidence, that hunting for food, social and ceremonial purposes within the traditional territory of the Sinixt in British Columbia at the time of contact was integral to the distinctive culture of the Sinixt. The trial judge also found that the modern‑day practice of hunting in this territory, as D did, is a continuation of this pre‑contact practice. Setting aside the periods in which no hunting took place, there was no significant dissimilarity between the pre‑contact practice and the modern one. As a result, D was exercising an Aboriginal right protected by s. 35(1).
Per Côté J. (dissenting): The appeal should be allowed and the constitutional question answered in the negative. The constitutional protection of Aboriginal rights contained in s. 35(1) of the Constitution Act, 1982 , does not extend to an Aboriginal group located outside of Canada. And even if it did, D cannot establish that he was exercising an Aboriginal right to hunt in the Sinixt traditional territory in British Columbia, as the modern group’s claim lacks continuity with the pre‑contact group’s practices. Accordingly, D’s claim must fail and he should not be exempt from the Wildlife Act provisions under which he was charged. A verdict of guilty should be entered on both counts of hunting without a licence and hunting big game while not being a resident, and the matter should be remitted to the trial court for sentencing.
To be entitled to the protection of s. 35(1) of the Constitution Act, 1982 , the modern‑day successors of Aboriginal societies that occupied Canadian territory at the time of European contact cannot be located anywhere other than Canada. The majority’s conclusion that the constitutional protection of Aboriginal rights in s. 35(1) extends to an Aboriginal group located outside of Canada is contrary to a purposive analysis of s. 35(1), having regard to its relevant linguistic, philosophic, and historical contexts. The framers’ intent was to protect the rights of Aboriginal groups that are members of, and participants in, Canadian society.
First, a textual analysis of s. 35(1) reveals the significance of the drafters’ choice to include the phrase “of Canada” rather than leaving the term “aboriginal peoples” without any qualifier. On the basis of the presumption against tautology, the words “of Canada” cannot be superfluous. In addition, similar limiting language is used repeatedly in the Constitution Act, 1982 , as a geographical qualifier. Interpreting “aboriginal peoples of Canada” in a more expansive fashion would be incongruent with the presumption of consistent expression and contrary to the intention of the drafters. Second, the philosophic context helps explain why residence or citizenship is not referenced in s. 35(1), but is assumed. By framing s. 35(1) as a provision granting special constitutional protection to one part of Canadian society, the Court has consistently understood it to import a residency or citizenship requirement. Section 35(1)’s purpose should be understood in relation to the interests it was meant to protect, that is, Aboriginal peoples as full participants with non‑Aboriginal peoples in a shared Canadian sovereignty. The protections, therefore, do not and cannot apply to Aboriginal groups in other countries; it cannot be said that they fully participate with other Canadians in their collective governance, nor do they contribute to Canada’s national diversity. Third, the historical record does not show that expanding the protections of s. 35(1) to non‑Canadian Aboriginal groups was ever considered. The limited historical sources that provide guidance as to the meaning of the expression “aboriginal peoples of Canada” show an intention to limit the constitutional protection of Aboriginal rights to only those groups located within Canada.
The conclusion that the enactment of s. 35(1) did not constitutionalize Aboriginal rights held by collectives located outside of Canada is further bolstered by the deleterious consequences that would arise from the opposite conclusion. First, s. 35.1 of the Constitution Act, 1982 , uses the phrase “aboriginal peoples of Canada” in setting out an obligation to invite representatives of these groups to constitutional conferences. It would be contrary to the organizing constitutional principle of democracy and inconsistent with the purpose of patriation to allow Aboriginal groups located outside of Canada to participate in Canadian democracy as required by s. 35.1. Second, a multitude of challenges would arise with respect to the Crown’s duty to consult. The numbers of groups to consult and, where appropriate, accommodate, would dramatically increase, and it can be anticipated that in some cases accommodating the interests of s. 35(1) rights holders outside of Canada would run counter to accommodating the interests of s. 35(1) rights holders within Canada. Third, finding that Aboriginal groups outside of Canada are “aboriginal peoples of Canada” raises the possibility that these groups may, in principle, hold constitutionally protected Aboriginal title to Canadian lands. It would be a remarkable proposition that a foreign group could hold constitutionally protected title to Canadian territory. The drafters of s. 35(1) could not have intended these deleterious consequences to arise.
In the present case, the Lakes Tribe is wholly located in the United States. As D is not a member of a collective that is part of the “aboriginal peoples of Canada”, he cannot exercise a constitutionally‑protected Aboriginal right to hunt in British Columbia. And even if there were agreement with the majority’s conclusion that the phrase “aboriginal peoples of Canada” includes groups located outside of Canada, there is disagreement with its application of the Van der Peet test to D’s claim. This test protects only those present‑day practices that have a reasonable degree of continuity with practices that existed prior to contact. While the test does not require an unbroken chain of continuity, and while continuity must be interpreted flexibly, such flexibility has its limits. While temporal gaps do not necessarily preclude the establishment of an Aboriginal right, failing to tender sufficient evidence that, at least, a connection to the historical practice was maintained during such gaps may be fatal. There is no direct evidence that the Lakes Tribe engaged in anything that could be considered a modern‑day practice of hunting in British Columbia after 1930. There was no basis upon which the trial judge could have drawn an inference of continuity; and given the Lakes Tribe’s lengthy and unaccounted‑for absence from British Columbia between 1930 and 2010, continuity is not made out. As there was nothing in existence in 1982 to which s. 35(1) protection could attach, D’s claim must fail.
Per Moldaver J. (dissenting): Even assuming that the majority is correct in holding that, as a member of an Aboriginal collective located outside Canada, D is entitled to claim the constitutional protection provided by s. 35(1) of the Constitution Act, 1982 , there is agreement with Côté J. that in this case, D has not met the onus of establishing the continuity element of his claim, under the test for Aboriginal rights pursuant to Van der Peet. The appeal should therefore be allowed on that basis and the remedy set out by Côté J. should be imposed.
Cases Cited
By Rowe J.
Applied: R. v. Van der Peet, [1996] 2 S.C.R. 507; distinguished: R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207; referred to: Mitchell v. M.N.R., 2001 SCC 33, [2001] 1 S.C.R. 911; R. v. Sparrow, [1990] 1 S.C.R. 1075; Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623; Calder v. Attorney‑General of British Columbia, [1973] S.C.R. 313; Roberts v. Canada, [1989] 1 S.C.R. 322; Guerin v. The Queen, [1984] 2 S.C.R. 335; R. v. Badger, [1996] 1 S.C.R. 771; Province of Ontario v. Dominion of Canada and Province of Quebec (1895), 25 S.C.R. 434; Ontario Mining Co. v. Seybold (1901), 32 S.C.R. 1; R. v. Gladstone, [1996] 2 S.C.R. 723; R. v. Sappier, 2006 SCC 54, [2006] 2 S.C.R. 686; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; R. v. Marshall, 2005 SCC 43, [2005] 2 S.C.R. 220; Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103; Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765; Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani‑Utenam), 2020 SCC 4, [2020] 1 S.C.R. 15; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550; R. v. Côté, [1996] 3 S.C.R. 139; The Queen v. The Secretary of State for Foreign and Commonwealth Affairs, [1981] 4 C.N.L.R. 86; Native Women’s Assn. of Canada v. Canada, [1994] 3 S.C.R. 627; R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566, Frank v. The Queen, [1978] 1 S.C.R. 95; Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 S.C.R. 99; Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427; Nowegijick v. The Queen, [1983] 1 S.C.R. 29; Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56, [2011] 3 S.C.R. 535; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257; R. v. Shipman, 2007 ONCA 338, 85 O.R. (3d) 585; R. v. Meshake, 2007 ONCA 337, 85 O.R. (3d) 575; R. v. Adams, [1996] 3 S.C.R. 101; Hwlitsum First Nation v. Canada (Attorney General), 2018 BCCA 276, 15 B.C.L.R. (6th) 91; Campbell v. British Columbia (Minister of Forests and Range), 2011 BCSC 448, [2011] 3 C.N.L.R. 151; Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650; Native Council of Nova Scotia v. Canada (Attorney General), 2008 FCA 113, [2008] 3 C.N.L.R. 286; Mississaugas of Scugog Island First Nation v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW‑Canada), Local 444, 2007 ONCA 814, 88 O.R. (3d) 583; R. v. Nikal, [1996] 1 S.C.R. 1013; First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58, [2017] 2 S.C.R. 576; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Marshall, [1999] 3 S.C.R. 533; Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., 2017 SCC 40, [2017] 1 S.C.R. 1069.
By Côté J. (dissenting)
Mitchell v. M.N.R., 2001 SCC 33, [2001] 1 S.C.R. 911; R. v. Van der Peet, [1996] 2 S.C.R. 507; R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236; R. v. Marshall, [1999] 3 S.C.R. 456; R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207; Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623; R. v. Sparrow, [1990] 1 S.C.R. 1075; Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765; Caron v. Alberta, 2015 SCC 56, [2015] 3 S.C.R. 511; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; British Columbia (Attorney General) v. Canada (Attorney General), [1994] 2 S.C.R. 41; Placer Dome Canada Ltd. v. Ontario (Minister of Finance), 2006 SCC 20, [2006] 1 S.C.R. 715; Frank v. The Queen, [1978] 1 S.C.R. 95; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473; Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566; R. v. Stillman, 2019 SCC 40, [2019] 3 S.C.R. 144; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257; Campbell v. British Columbia (Minister of Forests and Range), 2011 BCSC 448, [2011] 3 C.N.L.R. 151; Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56, [2011] 3 S.C.R. 535; Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, [2017] 2 S.C.R. 386.
By Moldaver J. (dissenting)
R. v. Van der Peet, [1996] 2 S.C.R. 507.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , s. 25 .
Constitution Act, 1867 , s. 91(24) .
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Game Protection Amendment Act, 1896, S.B.C., c. 22.
Natural Resources Transfer Agreement (Alberta) [Schedule 2 of Constitution Act, 1930, R.S.C. 1985, App. II, No. 26], paras. 10 and 12.
Natural Resources Transfer Agreement (Manitoba) [Schedule 1 of Constitution Act, 1930, R.S.C. 1985, App. II, No. 26], paras. 11 and 13.
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Champagne and Aishihik First Nations Final Agreement (1993), vol. 1, c. 3, ss. 3.2.2 to 3.2.3.
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Gwich’in Comprehensive Land Claim Agreement (1992), vol. 1, c. 4.
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Little Salmon/Carmacks First Nation Agreement (1998), vol. 1, c. 3, ss. 3.2.2 to 3.2.3.
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Ta’an Kwach’an Council Final Agreement (2001), vol. 1, c. 3, ss. 3.2.2 to 3.2.3.
Teslin Tlingit Council Final Agreement (2001), vol. 1, c. 3, ss. 3.2.2 to 3.2.3.
Tr’ondëk Hwëch’in Final Agreement (1998), vol. 1, c. 3, ss. 3.2.2 to 3.2.3.
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APPEAL from a judgment of the British Columbia Court of Appeal (Smith, Willcock and Fitch JJ.A.), 2019 BCCA 151, [2020] 2 W.W.R. 191, [2019] 4 C.N.L.R. 217, 24 B.C.L.R. (6th) 48, 433 D.L.R. (4th) 544, [2019] B.C.J. No. 755 (QL), 2019 CarswellBC 1146 (WL Can.), affirming a decision of Sewell J., 2017 BCSC 2389, [2018] 1 C.N.L.R. 135, [2017] B.C.J. No. 2665 (QL), 2017 CarswelBC 3648 (WL Can.), affirming the acquittals entered by Mrozinski Prov. Ct. J., 2017 BCPC 84, [2018] 1 C.N.L.R. 97, [2017] B.C.J. No. 558 (QL), 2017 CarswellBC 769 (WL Can.). Appeal dismissed, Moldaver and Côté JJ. dissenting.
Glen R. Thompson and Heather Cochran, for the appellant.
Mark G. Underhill and Kate R. Phipps, for the respondent.
Christopher Rupar, for the intervener the Attorney General of Canada.
Manizeh Fancy, for the intervener the Attorney General of Ontario.
Tania Clercq, for the intervener the Attorney General of Quebec.
Rachelle Standing, for the intervener the Attorney General of New Brunswick.
Richard James Fyfe, for the intervener the Attorney General of Saskatchewan.
Angela Edgington, for the intervener Attorney General of Alberta.
Written submissions only by Elaine Cairns and Katie Mercier, for the intervener the Attorney General of the Yukon Territory.
Paul Williams, for the intervener the Peskotomuhkati Nation.
Bruce McIvor, for the intervener the Indigenous Bar Association in Canada.
Maxime Faille, for the intervener the Whitecap Dakota First Nation.
Jessica Orkin, for the interveners the Grand Council of the Crees (Eeyou Istchee) and the Cree Nation Government.
Rosanne Kyle, for the intervener the Okanagan Nation Alliance.
Francis Walsh, for the intervener the Mohawk Council of Kahnawà:ke.
Julie McGregor, for the intervener the Assembly of First Nations.
Kathy L. Hodgson‑Smith, for the interveners the Métis National Council and the Manitoba Metis Federation Inc.
Jack Woodward, Q.C., for the intervener the Nuchatlaht First Nation.
Andrew Lokan, for the intervener the Congress of Aboriginal Peoples.
John W. Gailus, for the intervener the Lummi Nation.
Thomas Isaac, for the intervener the Métis Nation British Columbia.
The judgment of Wagner C.J. and Abella, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ. was delivered by
[1] Rowe J. — Richard Lee Desautel entered Canada legally from the United States of America. He shot an elk contrary to provincial wildlife rules and advised provincial authorities that he had done so. As he expected, he was charged for this. He defended the charges on the basis that he had an Aboriginal right to hunt the elk, one which is protected by s. 35(1) of the Constitution Act, 1982 . Thus, this is a test case, the central issue being whether persons who are not Canadian citizens and who do not reside in Canada can exercise an Aboriginal right that is protected by s. 35(1). For the reasons that follow, I would say yes. On a purposive interpretation of s. 35(1), the scope of “aboriginal peoples of Canada” is clear: it must mean the modern-day successors of Aboriginal societies that occupied Canadian territory at the time of European contact.
[2] Beyond agreeing with Mr. Desautel on this central issue, I will say little more about what that means for the exercise of rights protected under s. 35(1). That follows for two reasons. First, questions of law are better resolved in cases where there is a dispute that requires the answering of those questions. And, second, the defence of a prosecution for a provincial regulatory offence, while it may serve as a test case (as here), is not well-suited to deal with such broader issues. Such issues are better dealt with in an action setting out the right claimed, with a full evidentiary record, and seeking declaratory relief. I will return to such matters toward the end of my reasons.
I. Background
[3] On October 14, 2010, Mr. Desautel shot one cow-elk near Castlegar, British Columbia. He was charged with hunting without a licence contrary to s. 11(1) of the Wildlife Act, R.S.B.C. 1996, c. 488, and hunting big game while not being a resident contrary to s. 47(a) of the Act. He did not have a licence and was not a resident of British Columbia. Mr. Desautel is a citizen of the United States, and a resident of Ichelium in the State of Washington. Mr. Desautel admitted the actus reus of the offences, but raised a defence that he was exercising his Aboriginal right to hunt in the traditional territory of his Sinixt ancestors, a right protected under s. 35(1).
[4] Mr. Desautel is a member of the Lakes Tribe of the Colville Confederated Tribes based in the State of Washington in the United States, a successor group of the Sinixt people. At trial, the year 1811 was accepted as the date of first contact between the Sinixt and Europeans. At this time, the Sinixt were engaged in a seasonal round of hunting, fishing, and gathering, travelling largely by canoe in their ancestral territory. This territory ran as far south as an island just above Kettle Falls, in what is now Washington State, and as far north as the Big Bend of the Columbia River, north of Revelstoke in what is now British Columbia. The place where Mr. Desautel shot the elk in October 2010 was within the ancestral territory of the Sinixt.
[5] Over the course of the latter half of the 19th century, the Sinixt gradually moved to occupy the southern portion of their territory full-time, the portion that lies in the United States. Until around the year 1870, the Sinixt continued their seasonal round in the northern portion of their territory, located in Canada. In the course of time, a “constellation of factors” made the Sinixt people move to the United States (2017 BCPC 84, [2018] 1 C.N.L.R. 97, at para. 110). By 1872, a number of members of the Sinixt were living for the most part in Washington State. The trial judge did not find that the Sinixt were forced out of Canada “at gunpoint” (para. 101), but nor did she find that the move was voluntary, as the Lakes Tribe never gave up their claim to their traditional territory in Canada. Until the year 1930, the evidence clearly showed that members of the Lakes Tribe continued to hunt in British Columbia, despite living on the Colville Reserve in Washington State and in the face of the creation of an international border by the 1846 Oregon Boundary Treaty and the outlawing of their hunting by British Columbia through the Game Protection Amendment Act, 1896, S.B.C., c. 22. From 1930 until 1972, there may have been a period of dormancy. As was found at trial, the Lakes Tribe continues to have a connection to the land where their ancestors hunted in British Columbia.
[6] Meanwhile, the population of Sinixt who had remained in Canada was small. By 1902, only 21 Sinixt still lived on their traditional territory in Canada, in the Arrow Lakes Band reserve. By 1930, only one person remained on the rolls of the Arrow Lakes Band, and after her death in 1956, the government of Canada declared the Arrow Lakes Band extinct, and the reserve lands reverted to the provincial Crown.
II. Judicial History
A. British Columbia Provincial Court, 2017 BCPC 84, [2018] 1 C.N.L.R. 97 (Mrozinski J.)
[7] The trial judge held that there was no doubt that Mr. Desautel is a member of the Lakes Tribe, and saw the Lakes Tribe as a clear successor group to the Sinixt, such that the communal rights of the Sinixt could continue with the Lakes Tribe. The trial judge applied the test this Court set out in R. v. Van der Peet, [1996] 2 S.C.R. 507. She held that Mr. Desautel was exercising an Aboriginal right to hunt for food, social and ceremonial purposes guaranteed by s. 35(1) of the Constitution Act, 1982 .
[8] Despite the Lakes Tribe’s departure from the northern part of their traditional territory, its members remained connected to that geographical area. The evidence demonstrated that the land and the traditions were not forgotten, and that the connection to the land was still present in the minds of the members of the Lakes Tribe. The trial judge found that the requirement of continuity was met, notwithstanding a period of dormancy between 1930 and 1972, because there is no requirement of “an unbroken chain of continuity” (Van der Peet, at para. 65).
[9] Moreover, the trial judge decided it was not necessary to define the Aboriginal right as including a mobility right, so no issue of sovereign incompatibility arose. Mr. Desautel’s Aboriginal right remained in existence and was protected by s. 35(1). The trial judge held that the right was infringed by the provisions of the Wildlife Act and the infringement was not justified. Mr. Desautel was acquitted.
B. British Columbia Superior Court, 2017 BCSC 2389, [2018] 1 C.N.L.R. 135 (Sewell J.)
[10] The appeal was dismissed. The summary conviction appeal judge held that the Sinixt people are the relevant collective and that modern-day Lakes Tribe members are entitled to assert the Aboriginal rights held by the Sinixt, based on practices that were part of their distinctive culture at the time of contact, in their traditional territory in British Columbia. According to the summary conviction appeal judge, the words “aboriginal peoples of Canada” in s. 35(1) must be interpreted in a purposive way, and mean Aboriginal peoples who, prior to contact, occupied what became Canada. Therefore, modern-day members of the Sinixt are not precluded from asserting rights under s. 35(1) merely because they now live in the United States. This interpretation of s. 35(1) is consistent with the objective of reconciliation. To establish an Aboriginal right to hunt, Mr. Desautel had to meet the requirements of the Van der Peet test. The summary conviction appeal judge found that the trial judge made no error in applying the Van der Peet test.
[11] The summary conviction appeal judge held that Mr. Desautel’s Aboriginal right to hunt is not incompatible with Canadian sovereignty. The fact that the government of Canada has the right to control its borders is not fatal to the assertion of an Aboriginal right to hunt in Canada by an Aboriginal group located in the United States. Mr. Desautel was not charged with coming into Can