Her Majesty the Queen v. Blackbird
[Indexed as: R. v. Blackbird]
68 O.R. (3d) 763
[2003] O.J. No. 5245
Court File No. 1031/03
Ontario Superior Court of Justice
Brockenshire J.
December 16, 2003
Environmental law — Offences — By-law of Band Council of Indian Reserve requiring that non-Band members obtain and pay for permit to hunt in Reserve from Band Council — By-law providing that open season, bag limits and all other matters not provided for in by-law were to be as set out in regulations under Migratory Birds Convention Act or Ontario Game and Fish Act — By-law and regulations under Migratory Birds Convention Act were clearly capable of co-existing and should be permitted to do so — Trial judge erring in quashing charges under Migratory Birds Convention Act on basis that by-law was comprehensive code which occupied field and ousted jurisdiction of Migratory Birds Convention Act — Migratory Birds Convention Act, 1994, S.C. 1994, c. 22.
The defendants were charged with various violations of the Migratory Birds Convention Act, 1994 (the “MBCA”). The offences were allegedly committed on an Indian Reserve. By-law No. 5 of the Band Council for the Reserve, which was duly approved by the Minister under s. 81 of the Indian Act, R.S.C. 1985, c. I-5 and which had the force and effect of a federal regulation, provided that no one, other than a member of the Band or the holder under lease of shooting rights in any part of the Reserve, was permitted to hunt in the Reserve without first obtaining a written permit from the Band Council, for which a fee was charged. Non-Band members were also required to be accompanied by a Band member licensed to act as a guide. The by-law stated that “Open season, bag limits, possession limits, and all other matters not provided for in this by-law shall be, with respect to ducks, as set out in Regulations for the Province of Ontario made under authority of the Migratory Birds Convention Act, and with respect to other game, as provided in the regulations made under the Ontario Game Act for the contiguous [page764] provincial lands”. The trial judge held that By-law No. 5 had priority over the Regulations under the MBCA and that it was a comprehensive scheme on the basis that things not expressly prohibited were permitted. Holding that the Regulations under the MBCA had been ousted by By-law No. 5, the trial judge quashed the information. The Crown appealed.
Held, the appeal should be allowed.
The words of an Act are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament. On reading the MBCA, it was plain and obvious that Canada, along with other nations, has adopted a common convention for the protection of migratory birds, which by their nature travel from country to country, and as part of that international obligation, has adopted regulations governing hunting and acts incidental thereto of migratory birds in Canada which regulations were clearly intended to cover all of Canada, and to be in conformity with like regulations in other nations. On reading By-law No. 5, it was plain and obvious that its primary purpose, under the area of hunting, was to provide a system of issuing licences and collecting fees from would-be hunters who are not residents of the Reserve, as well as perhaps providing employment for Band residents as guides for these hunters. The regulation of the actual hunting, and the protection of migratory birds, was incidental to the main purpose of the By-law, but was obviously intended to be in conformity with provincial and federal regulations. MBCA regulations are made annually before the opening of the fall hunting season. Sections 10, 40(2) and 44(b) of the Interpretation Act, R.S.C. 1985, c. I-23, provide that the law shall be considered as always speaking, a reference to an enactment is to be construed as a reference to the enactment as amended, and a reference to an enactment that is repealed is to be construed as a reference to the new or substituted enactment. The result was that anything prohibited under the regulations passed pursuant to the MBCA, as well as pursuant to the regulations passed pursuant to the Ontario Game and Fish Act, at the time of the alleged offences, would also be prohibited under By-law No. 5. Charges of bird-hunting offences could be laid under By-law No. 5, but they could also be laid under the MBCA or the provincial legislation. To the extent that they could co-exist (and they clearly could), they should be permitted to co-exist. The old approach of “occupying the field” no longer applies. The trial judge erred in concluding that By-law No. 5 was a comprehensive code that occupied the field exclusively and ousted the jurisdiction of the MBCA. 114957 Canada Lte (Spraytech socit d’arossage) v. Hudson (Town), [2001] 2 S.C.R. 241, 2001 SCC 40, 200 D.L.R. (4th) 419, 171 N.R. 201, 19 M.P.L.R. (3d) 1; R. v. Francis, [1988] 1 S.C.R. 1025, 85 N.B.R. (2d) 243, 51 D.L.R. (4th) 418, 85 N.R. 3, 217 A.P.R. 243, 41 C.C.C. (3d) 217, 5 M.V.R. (2d) 268, apld
Other cases referred to
Bell ExpressVu Ltd. Partnership v. Rex, [2002] 2 S.C.R. 559, 100 B.C.L.R. (3d) 1, 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, 93 C.R.R. (2d) 189, 18 C.P.R. (4th) 289, 2002 SCC 42, [2002] S.C.J. No. 43 (QL); R. v. Sparrow, [1990] 1 S.C.R. 1075, 46 B.C.L.R. (2d) 1, 70 D.L.R. (4th) 385, [1990] 4 W.W.R. 410, 56 C.C.C. (3d) 263
Statutes referred to
Criminal Code, R.S.C. 1985, c. C-46, s. 813(b)(i)
Game and Fish Act, R.S.O. 1990, c. G.1 [repealed S.O. 1997, c. 41]
Indian Act, R.S.C. 1970, c. I-6 [page765]
Indian Act, R.S.C. 1985, c. I-5, s. 81
Interpretation Act, R.S.C. 1985, c. I-23, ss. 10, 40(2), 44(h) Migratory Birds Convention Act, 1994, S.C. 1994, c. 22
Rules and regulations referred to
Indian Reserve Traffic Regulations, C.R.C. 1978, c. 959 Authorities referred to
Driedger, E.A., Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983)
APPEAL by the Crown from a judgment of Hornblower J. (2003),
64 O.R. (3d) 385 (C.J.) quashing an information.
Tom Andreopoulos and Michael McCulloch, for appellant. John C. Peters, for respondents.
[1] BROCKENSHIRE J.: — This is a summary conviction appeal by the Crown, under s. 813(b)(i) of the Criminal Code, R.S.C. 1985, c. C-46, from an order made by Hornblower J. of the Ontario Court of Justice on March 31, 2003, quashing the information herein. The information contains 53 counts, alleging various breaches of the Migratory Birds Convention Act, 1994, S.C. 1994, c. 22, as amended (“MBCA”).
[2] The factual background was that the Canadian Wildlife Service carried out an undercover investigation on the Walpole Island Indian Reserve, and charged the respondents, all outfitters or guides for hunting excursions on the reserve, with a number of offences under the MBCA, including hunting out of season, before and after the times of day permitted, baiting migratory birds, exceeding possession limits for ducks, selling ducks, using improper shotguns and shot, hunting from a power boat, hunting within 400 metres from a bait deposit and improper transport of ducks. Twelve of the charges relate to ducks, seven to geese, and the rest to migratory birds in general.
[3] In addition to the regulations under the MBCA, under which these charges were laid, there also exists By-law No. 5 of the Band Council for Walpole Island Reserve, passed February 7, 1955, and duly approved by the Minister under s. 81 of the Indian Act, R.S.C. 1985, c. I-5. It was common ground between counsel that this by-law would have the force and effect of a Federal Regulation. The issue, as defined by Mr. Peters for the respondents, was which of these two Federal Regulations — the one under the MBCA or By-law No. 5 — should have priority. Hornblower J., on the basis of arguments made and case law presented to him, decided that By-law No. 5 had priority, and that it was a comprehensive scheme on the basis that things not [page766] expressly prohibited were permitted. He apparently, on the basis that the regulations under the MBCA had been ousted by By-law No. 5, quashed the information.
[4] Although not directly relevant to the issue of jurisdiction, underlying the argument was By-law 23 of the Walpole Island Reserve Band Council, that created a Walpole Island Indian Police Department, to be responsible for, among other things, the preservation, protection and management of fur bearing animals and fish; and the interpretation of By-law No. 5 by Hornblower J., who concluded that the Federal MBCA Regulations, as well as the Ontario Regulations on Game and Fish imported into it, were those of 1955, and not those of the time of the charges. I am told that in 1955, the MBCA Regulations and the Ontario Regulations may have permitted the acts for which the respondents are now charged.
[5] By-law No. 5 is quite brief. It is described as “a By-law to provide for the preservation, protection and management of fish and game in the Walpole Island Indian Reserve in the Province of Ontario”. It deals in some detail with fishing, and then provides under the heading “hunting” that no one, other than a member of the Band or the holder under lease of shooting rights in any part of the Reserve shall be permitted to hunt in the Reserve without first obtaining a written permit from the Band Council. Holders of such permits have to be accompanied by a Band member licensed by it to act as a guide. There is a fee for a hunting permit, but all Band members can register free for a guide’s licence. The actual regulation of hunting is covered entirely in para. 11 as follows: Open season, bag limits, possession limits, and all other matters not provided for in this by-law shall be, with respect to ducks, as set out in Regulations for the Province of Ontario made under authority of the Migratory Birds Convention Act, and with respect to other game, as provided in the regulations made under the Ontario Game Act for the contiguous provincial lands.
[6] Mr. Peters, who was not involved in the drawing [up of] the by-law, confirmed that in fact there was no Ontario Game Act and that what must have been intended was the Ontario Game and Fish Act and the Regulations thereunder.
[7] The Crown position was that By-law No. 5 may constitute an arguable defence for some or all of the respondents, but that it would only come into play at a trial, after the establishment of the Crown case on each of the charges. It did not go to the jurisdiction and authority of the Crown to lay the charges in the first place under the MBCA. The Crown did not dispute that By-law No. 5 was duly passed and duly approved under the Indian Act. It did, [page767] however, dispute the finding by Hornblower J. that the adoption of regulations by it was “static as opposed to ambulatory”.
[8] It is obvious from reading the decision of Hornblower J., that considerable case law was quoted to him, some of it old, and some of it confusing. The unfortunate result may have been that he was led into error. In perhaps the same way, the Crown presented over 38 cases to me, and the respondent presented 30. Significantly, neither side cited Bell ExpressVu Ltd. Partnership v. Rex, [2002] 2 S.C.R. 559, 212 D.L.R. (4th) 1 where the court adopted from Driedger [Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983], on the construction of statutes, the preferred approach to statutory interpretation as follows [at para. 26]: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
[9] On reading the MBCA, it is plain and obvious that Canada, together with other nations, has adopted a common convention for the protection of migratory birds, which by their nature travel from country to country, and as part of that international obligation has adopted, and charges on an annual basis, regulations governing hunting, and acts incidental thereto, of migratory birds in Canada which regulations were clearly intended to cover all of Canada, and to be in conformity with like regulations in other nations.
[10] On reading By-law No. 5, it is plain and obvious that its primary purpose, under the area of hunting, was to provide a system of issuing licences and collecting fees from would-be hunters who are not residents of the Reserve, as well as perhaps providing employment for Band residents as guides to these hunters. The regulation of the actual hunting, and the protection of migratory birds was incidental to the main purpose of the by-law, but was obviously intended to be in conformity with provincial and federal regulations.
[11] Hornblower J. decided that the reference in By-law No. 5 to regulations imported into the by-law the regulations as they stood in 1955, frozen forever absent amendment to the by-law. It does not appear that he was referred to the MBCA regulations passed July 28, 1954, that said that the regulations are made annually for conservation purposes before the opening of the fall hunting season, nor to ss. 10, 40(2), and 44(h) of the Interpretation Act, R.S.C. 1995, c. I-23, which provide that the law shall be considered as always speaking, a reference to an enactment is to be construed as a [page768] reference to the enactment as amended, and a reference to an enactment that is repealed is to be construed as a reference to the new or substituted enactment. These provisions, of course govern in the case of By-law No. 5, because it has the force and effect of a federal regulation. The result is that anything prohibited under the regulations passed pursuant to the MBCA, as well as pursuant to the regulations passed by the Ontario Game and Fish Act, at the time of these alleged offences, would also be prohibited under By-law No. 5.
[12] If the charges could have been laid under By-law No. 5 as well as under the MBCA, the question remains of whether the officers of the Canadian Wildlife Service had the authority to lay these charges, or whether, as the Walpole Indian Reserve has pursuant to By-law 23 passed in 1974, its own Indian Police Department, empowered to enforce all applicable federal and provincial statutes, and also made responsible for the preservation, protection and management of fur bearing animals, of fish and other game, it had the exclusive jurisdiction.
[13] Hornblower J. simply concluded that By-law No. 5 is a comprehensive code that covers the field exclusively and ousts the jurisdiction of the MBCA.
[14] My conclusion is different. In my view, the current state of the law on this issue is to be found in three Supreme Court of Canada cases.
[15] A good starting point on this issue is the following often repeated quote from R. v. Sparrow, [1990] 1 S.C.R. 1075, 56 C.C.C. (3d) 263, at p. 1103 S.C.R., p. 283 C.C.C.: It is worth recalling that while British policy towards the native population was based on respect for their right to occupy their traditional lands, a proposition to which the Royal Proclamation of 1763 bears witness, there was from the outset, never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the Crown[.]
[16] R. v. Francis, [1988] 1 S.C.R. 1025, 51 D.L.R. (4th) 418, dealt with a motor vehicle accident on a reserve in New Brunswick. The accused was charged under the provincial statute and objected that he could only be charged and convicted under the Indian Reserve Traffic Regulations, C.R.C. 1978, c. 959 which had been passed pursuant to the Indian Act, R.S.C. 1970, c. I-6 and adopted for indian reserves, the provincial traffic regulations in the province in which they were located. At p. 1031 S.C.R., p. 423 D.L.R., La Forest J. for the court said: The fact that a provincial law may be incorporated by reference as a federal law does not prevent the provincial law from operating in its own right. Since the Multiple Access case, supra, it is clear that federal and provincial laws that merely duplicate one another but do not conflict can exist side by side. A person may be charged with violating the provincial statute or the federal regulation[.][page769]
[17] Finally, in 114957 Canada Lte (Spraytech socit d’arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241, 2001 SCC 40, the Supreme Court of Canada dealt with the situation where there were federal, provincial and municipal regulations in effect. Despite the federal Pesticides Act authorizing the use of certain chemicals, the municipal by-law restricted the use of pesticides to specific locations in the municipality. In defence of proceedings under the by-law, a motion was brought seeking a declaration that the by-law was inoperative and ultra vires the Town’s authority. The courts below and the Supreme Court of Canada denied that relief. In its decision, the court, at para. 38 included with approval the following quote: It is no longer the key to this kind of problem to look at one comprehensive scheme, and then to look at the other comprehensive scheme, and to decide which scheme entirely occupies the field to the exclusion of the other. Instead, the correct course is to look at the precise provisions and the way they operate in the precise case, and ask: can they co-exist in this particular case in their operation? If so, they should be allowed to co-exist, and each should do its own parallel regulation of one aspect of the same activity or two different aspects of the same activity.
[18] In para. 39, the court said, As a general principle, the mere existence of provincial (or federal) legislation in a given field does not oust municipal prerogatives to regulate the subject matter.
[19] In my view, Spraytech completely does away with the old approach of “occupancy of the field”.
[20] Here, the MBCA and Ontario Game and Fisheries legislation both deal primarily with the regulation of hunting migratory and other birds, with a view to conservation, and By- law No. 5 deals primarily with the licensing [of] hunters from outside the Reserve, and guides for those hunters but, as I have found, adopts the most recent regulations under both statutes. Charges of bird-hunting offences could be laid under By-law No. 5, but they could also be laid under the MBCA and the provincial legislation. They clearly can co-exist and per the decision in Spraytech must be allowed to co-exist.
[21] An order shall go as asked, setting aside the order of Hornblower J. made March 23, 2003.
[22] The matter is to be remitted to the Ontario Court of Justice at Sarnia, with the further appearance of the accused to be on a date to be set by that court.
Appeal allowed. [page770]