STANFORD WILLIAM LITTLE PLUME Appellant - v. -, 2003 ABQB 269

R. v. Plume, 2003 ABQB 269 Date: 2003 03 20 Action No. 0207-24027S1 IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF LETHBRIDGE BETWEEN: STANFORD WILLIAM LITTLE PLUME Appellant - and - HER MAJESTY THE QUEEN Respondent

SUMMARY CONVICTION APPEAL FROM THE JUDGMENT OF HIS HONOUR JUDGE DeBOW DATED 3 JUNE 2002 _______________________________________________________ REASONS FOR JUDGMENT of the HONOURABLE MR. JUSTICE BRYAN E. MAHONEY _______________________________________________________ COUNSEL: Valerie Danielson and Helen Rees For the Appellant, Erin Olsen

For the Crown Respondent INTRODUCTION [ 1 ] The Appellant, Stanford Little Plume, appeals his 3 June, 2002, conviction in the Pincher Creek Provincial Court for operating an uninsured motor vehicle on a highway. GROUND OF APPEAL [ 2 ] The Appellant advances the following ground of appeal: Whether or not the Trial Judge erred in law and in fact in finding that the road (known as 15 th Avenue in the east side of Brocket on Peigan Nation Reserve #147,) upon which the Appellant was driving at the time he was stopped by a member of the Royal Canadian Mounted police, is a ‘highway’ within the meaning of

section 1(

e) of the Motor Vehicle Administration Act of Alberta. FACTS [ 3 ] Little Plume, is a Treaty Indian. He resides in the Town of Brocket, located on the Peigan Nation Reserve near Pincher Creek in Southern Alberta. [ 4 ] On October 9, 2001, he was driving home in Brocket when he was stopped by the RCMP for faulty tail-lights. When Little Plume could not produce proof of insurance, he was charged and convicted pursuant to Section 71(1)(

a) of the Motor Vehicle Administration Act of Alberta (the “Act”), with driving an uninsured motor vehicle on a highway. [ 5 ] In his oral reasons, given at the end of trial, the trial Judge made the following findings: “The evidence clearly establishes that the public has access to this area east of highway 786 and in the town site of Brocket, for many different reasons.

If one were to take the locus, the situs of this particular incident, and simply extend the area from 15 th Avenue to 17 th Avenue north, and from 15 th Avenue to 12 th Avenue south, that is two blocks north and tree blocks south, and also east to Highway 786 and west to 22 nd Street, there are a number of facilities that are open to the general public from time to time, and would cause the general public to enter the town site of Brocket for legitimate purposes. That has happened and continues to happen. I rely on the evidence of Constable Solway in that regard.

To list them, as I understand the evidence, site 1605 is the Band office. The Band office on this town site also includes the community hall and the sports arena, which are public facilities to which people off the reserve and non-members of the Peigan Reserve, attend for various social activities and sports activities. Also in this block area that I have identified, are the medical services branch for the community and the medical services branch, of course, would involve various medical personnel attending for the purpose of providing medical services to the community of Brocket.

The RCMP is also within that range... In addition to that, the moccasin factory is within that block. The ambulance services are within that block... There is an elementary school at site 1250, which is between 12 th and 13 th Avenue, east of... secondary highway 786. In addition to that, there are other facilities west of secondary highway 786, such as several churches. There are fair grounds and rodeo facilities that are located around site 1200 and site 1195. In my view, in this particular case, the public has always and continues to have, access to the town site of Brocket for various purposes.

... it is the area itself that has to be considered as a whole, and I am not prepared to extract one avenue or one street and say for some reason it is excluded to the public, as obviously the public would attend these various facilities going by different routes and would exit by different routes for different purposes.

As well it does include school teachers or other authorities who are non-band members who perhaps would go out to some of the residences in the area. ...I am satisfied that this particular street in question is one to which the general public has regular and common access...I find the accused guilty as charged.” STANDARD OF REVIEW [ 6 ] The trial judge was asked to apply the law relating to the definition of a “highway” for the purpose of deciding whether the appellant had operated an uninsured motor vehicle on a highway contrary to the Motor Vehicle Administration Act (the “Act”).

Where the trial judge was interpreting the applicable law his decision can be reviewed on a standard of correctness. Where he was making findings of fact, or bringing his understanding of the law to bear upon the facts, his decision can only be reviewed for palpable and overriding error. ( Housen v. Nikolaisen 2002 SCC 33 (CanLII) , [2002] S.C.J. 31 ; 211 D.L.R. (4 th ) 577 (S.C.C.) [ 7 ] This court can ask itself could a jury or judge properly instructed and acting reasonably have convicted? In applying this test great deference is shown to the findings of fact by the trial judge, R. v.

W.(D) 1992) 1992 CanLII 56 (SCC) , 74 C.C.C. (3d) 134 (S.C.C.) . DECISION [ 8 ] In the absence of conflicting federal legislation, provincial motor vehicle laws of general application apply with equal vigour on Indian reserves. ( R. v. Francis 1988 CanLII 31 (SCC) , [1988] 1 S.C.R. 1025 (S.C.C.) To hold otherwise would amount to resuscitating the “enclave” theory which has been rejected by the majority of the Supreme Court of Canada in Cardinal v. Attorney General of Alberta 1973 CanLII 980 (SCC) , [1974] S.C.R. 695 . [ 9 ] Concerning the definition of a “highway”

Section 1(

e) of the Act provides the following: “highway” means any thoroughfare, street, road, trail, avenue, parkway, driveway, viaduct, lane, alley, square, bridge, causeway, trestleway or other place, whether publicly or privately owned, any part of which the public is ordinarily entitled or permitted to use for passage or parking of vehicles and... [ 10 ] The starting point for deciding if a road on an Indian reserve is a “highway”is whether the general public is ordinarily entitled or permitted to use the road. If so then it is a“highway” for purposes of the Act. ( R. v.

SpearChief (1963) 1963 CanLII 850 (AB KB) , 45 W.W.R. 161 (Alta. Dist. Ct) ). [ 11 ] In determining whether a road is one that the general public is ordinarily entitled or permitted to use, the court must consider evidence regarding the nature, purpose and locale of the road. This is a fact finding exercise. ( R. v. Fox (1979) 1979 ABCA 343 (CanLII) , 20 A.R. 451 at 458 (Alta. C.A.) ) [ 12 ] As to who is the general public, the Alberta Court of Appeal, following the Saskatchewan Court of Appeal in R. v.

Bigeagle 1978 CanLII 1808 (SK CA) , [1978] 6 W.W.R. 65 , determined that use of a road by a limited class of people (resident members of an Indian reserve) for whose benefit the road was created did not constitute use of the road by the general public. Clearly, if only resident members use or are allowed to use a road then it will not be a “highway”.( R. v. Fox , supra )

[ 13 ] Roads on the reserve are privately owned by the Band. The main issue of whether a privately-owned and maintained road falls within the definition of “highway” in the Act turns mainly on whether or not the public typically uses such a road with or without the express permission of the owner.

If the general public has almost unlimited access and use of the privately-owned road for the passage and parking of vehicles then the road will be viewed as a “highway” for purposes of the Act. [ 14 ] Tendered as proof that the road in question is not a “highway” the Appellant points out that the reserve has on its books a permit issuing system for “outsiders” who enter reserve lands.

I agree that utilization of a permit system to regulate use of a road may bring the road outside the definition of a “highway”, but such is true only if the permit system or any other control system such as signs, barriers and trespassing charges is actually enforced and not there in theory only. Whether a permit system or other control system is actually in place or enforced is a question of fact. [ 15 ] Take for example the case of Rosentneter v. Fuerst (1957) 1957 CanLII 406 (ON SC) , 10 D.L.R. (2d) 521 (Ont. H.C.) .

There, the Ontario High Court held that a road built and maintained by the Hydro Electric Power Commission was a “highway”.

Although a pass was required before a vehicle could traverse the road, permission had never been refused and the road was often “used by the general public for the passage of vehicles.” [ 16 ] In this appeal, the trial judge found “the public has always and continues to have, access to the town site of Brocket for various reasons.” There was no finding that a permit system was being enforced for members of the general public. [ 17 ] Responding to the trial judge’s finding that members of the public regularly access a number of facilities in Brocket, the appellant argues that those persons are using the road as members of a limited class of invitees there only for business incidental to the reserve or its members.

Their presence and use of the road does not make it a “highway.” The very short judgment of R. v. Crowchild , [1987] A.J. No. 167 (C.A.) passingly states that people entering to use a sportsplex were merely licenced by the Sarcee Nation to do so and that it was for business incidental to the business of the reserve so the road was not a “highway”. [ 18 ] I do not agree that a person belonging to the Appellant’s definition of a limited class such as invitees, licensees or permit holders are not the general public. R. v. Fox , does not go that far.

It creates an exception only for the limited class of people for whose benefit the road was constructed , namely the residents of the reserve (emphasis added) ( see R. v.

Fox , Ibid, para. 17 , p.458) It does not create an exception so that any invitee, licensee or permit holder would be removed from being part of the public using the road as a “highway.” [ 19 ] In conclusion then, the main issues in determining if a road is a “highway” is: (1) the degree of actual use by the general public and; (2) the degree of actual control over use of the road maintained by the owner. [ 20 ] If there was regular use by the general public of a road on the reserve but such use was strictly regulated by requiring every single person to report to the Band office to at the least get verbal permission then I believe that the road would not be a “highway”.

However, if there was regular use by the general public but no control or only a theoretical control, such as by an unenforced permit system, then the road falls within the statutory definition of a “highway”. [ 21 ] The trial Judge found as a fact that a variety of people enter the Town of Brocket and utilize its roads for diverse purposes. Many of these people attend, uninterrupted, various locations on both sides of Highway 786 in Brocket. He refers to such facilities as the ice arena, the school gymnasium, the Moccasin Factory, the RCMP detachment, churches, rodeo and fair grounds and a convenience store.

Although there is a permit system on the books and even some no trespassing signs on some of the entryways onto the reserve, located somewhat distant from the town, there is no evidence that control over who enters the reserve is actually exercised by the Band. [ 22 ] Consequently, given the relatively widespread use of the roads by a variety of people the trial Judge was correct and made no

palpable error in holding that these roads were “open to the public for passage of vehicles” and hence a “highway.” A properly instructed jury acting reasonably could have convicted the Appellant. [ 23 ] All roads on any given reserve are not the same. This would explain why other courts hearing similar cases arrive at different conclusions.

If the Band decides the streets and avenues in the town of Brocket are not “highways” in the statutory sense then it can take effective steps to confine access and clearly alert the public who want to travel there that passage on these roads is restricted. [ 24 ] In the last paragraph of an 81 paragraph brief the Appellant raises an issue that the trial Judge ought to have disqualified himself because he stated the following at the start of the trial: I have had a few cases on this issue over the years, and the last one I think I had was in Standoff, where it was argued that if you - - once you left Highway 2 travelling north/south and went onto the access road up to the administration buildings, that you were probably in an area where the public did not have access, but clearly the general public, other than those members of the Reserve, did in that case, so I do not know if this were a similar situation or not, but - - [ 25 ] The trial Judge made it clear on the record that the issue of the definition of a “highway” was factual.

Counsel for the Appellant, Ms. Danielson, candidly conceded at this appeal hearing, that the Appellant preferred a decision on the merits of its main submissions regarding the “highway” issue. She also said by raising the disqualification issue she meant no disrespect for the presiding Judge. [ 26 ] It is enough for me to say that the threshold for a finding of real or perceived bias is high. ( R.D.S. v. the Queen (1997) 1997 CanLII 324 (SCC) , 118 C.C.C. (3d) 353 (S.C.C.) There is a presumption that judges will carry out their oath of office to act impartially.

This presumption can be displaced with cogent evidence that demonstrates that something the Judge has done gives rise to a reasonable apprehension of bias. There must be proof of circumstances where a reasonable person would think the Judge unfairly favoured one party at the expense of the other. Here both the above written excerpt from the trial Judge’s comments, his conduct of the trial and the rest of his oral reasons paints a clear picture that the trial was fair and impartial. [ 27 ] The appeal is dismissed. DATED at Calgary, Alberta this 20 th day of March, 2003. __________________________ J.C.Q.B.A.