2013 QCCA 302, 2013 QCCA 302

Unofficial English Translation Martin c.

Canada (Procureur général) 2013 QCCA 302 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC Nos.: 200-10-002717-119 200-10-002718-117 200-10-002719-115 200-10-002720-113 200-10-002721-111 200-10-002722-119 200-10-002723-117 200-10-002724-115 200-10-002725-112 200-10-002726-110 200-10-002727-118 200-10-002728-116 200-10-002729-114 200-10-002730-112 200-10-002731-110 200-10-002732-118 200-10-002733-116 200-10-002734-114 200-10-002735-111 200-10-002736-119 200-10-002737-117 200-10-002738-115 200-10-002739-113 200-10-002746-118 200-10-002747-116 200-10-002748-114 200-10-002749-112 200-10-002750-110 200-10-002751-118 (650-36-000215-109) et al.

DATE: February 11, 2013 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. FRANCE THIBAULT, J.A. ALLAN R. HILTON, J.A. 200-10-002717-119 (650-36-000215-109) (652-73-000487-061) TONY MARTIN APPELLANT – defendant v. ATTORNEY GENERAL OF CANADA RESPONDENT – prosecutor AND 200-10-002718-117 (650-36-000187-100) (652-72-000454-089) PERRY ANDERSON APPELLANT – defendant v. DIRECTOR OF CRIMINAL AND PENAL PROSECUTION RESPONDENT – prosecutor and ATTORNEY GENERAL OF QUEBEC IMPLEADED PARTY AND 200-10-002719-115 (650-36-000226-106) (652-73-000571-088) FÉLIX BELVIN AND WILFRED BELVIN APPELLANTS – defendants v.

ATTORNEY GENERAL OF CANADA RESPONDENT – prosecutor AND 200-10-002720-113 (650-36-000225-108) (652-73-000568-084) BRUNO DRISCOLL APPELLANT – defendant v. ATTORNEY GENERAL OF CANADA RESPONDENT – prosecutor AND

200-10-002721-111 (650-36-000228-102) (652-73-000590-088) GLENN McKINNON APPELLANT – defendant v. ATTORNEY GENERAL OF CANADA RESPONDENT – prosecutor AND 200-10-002722-119 (650-36-000191-102) (652-72-000458-080) FRÉDÉRICK MAURICE APPELLANT – defendant v. DIRECTOR OF CRIMINAL AND PENAL PROSECUTION RESPONDENT – prosecutor and ATTORNEY GENERAL OF QUEBEC IMPLEADED PARTY AND 200-10-002723-117 (650-36-000221-107) (652-73-000562-087) FÉLIX BELVIN APPELLANT – defendant v.

ATTORNEY GENERAL OF CANADA RESPONDENT – prosecutor AND 200-10-002724-115 (650-36-000224-101) (650-36-000230-108) (652-73-000565-080) (652-73-000596-085) RICHARD SHATTLER APPELLANT – defendant v. ATTORNEY GENERAL OF CANADA RESPONDENT – prosecutor AND 200-10-002725-112 (650-36-000222-105) (652-73-000563-085) RÉGINALD SHATTLER APPELLANT – defendant v. ATTORNEY GENERAL OF CANADA RESPONDENT – prosecutor AND 200-10-002726-110 (650-36-000193-108) (652-72-000460-086) JOHN BELVIN APPELLANT – defendant v. DIRECTOR OF CRIMINAL AND PENAL PROSECUTION RESPONDENT – prosecutor and ATTORNEY GENERAL OF QUEBEC IMPLEADED PARTY

AND 200-10-002727-118 (650-36-000218-103) (652-73-000558-085) CARANE LAVALLÉE APPELLANT – defendant v. ATTORNEY GENERAL OF CANADA RESPONDENT – prosecutor and AND 200-10-002728-116 (650-36-000210-100) (650-36-000211-108) (650-36-000212-106) (650-36-000213-104) (650-36- 000214-102) (652-72-000510-096) (652-72-000511-094) (652-72-000512-092) (652-72-000513- 090) (652-72-000514-098) CHICO SHATTLER APPELLANT – defendant v.

DIRECTOR OF CRIMINAL AND PENAL PROSECUTION RESPONDENT – prosecutor and ATTORNEY GENERAL OF QUEBEC IMPLEADED PARTY AND 200-10-002729-114 (650-36-000216-107) (652-73-000525-076) DARCY MAURICE APPELLANT – defendant v.

ATTORNEY GENERAL OF CANADA RESPONDENT – prosecutor AND 200-10-002730-112 (650-36-000197-109) (650-36-000198-107) (650-36-000199-105) (650-36-000200-101) (650-36- 000201-109) (650-36-000202-107) (650-36-000203-106) (650-36-000204-103) (652-72-000470- 093) (652-72-000471-091) (652-72-000472-099) (652-72-000473-097) (652-72-000474-095) (652-72-000475-092) (652-72-000476-090) (652-72-000477-098) PAUL MAURICE APPELLANT – defendant v.

DIRECTOR OF CRIMINAL AND PENAL PROSECUTION RESPONDENT – prosecutor and ATTORNEY GENERAL OF QUEBEC IMPLEADED PARTY AND 200-10-002731-110 (650-36-000229-100) (652-73-000591-086) LÉO PAUL SHATTLER APPELLANT – defendant v. ATTORNEY GENERAL OF CANADA RESPONDENT – prosecutor AND 200-10-002732-118 (650-36-000217-105) (652-73-000557-087)

MARCEL WELLMAN APPELLANT – defendant v. ATTORNEY GENERAL OF CANADA RESPONDENT – prosecutor AND 200-10-002733-116 (650-36-000188-108) (652-72-000455-086) MCLENA KENNEDY APPELLANT – defendant v. DIRECTOR OF CRIMINAL AND PENAL PROSECUTION RESPONDENT – prosecutor and ATTORNEY GENERAL OF QUEBEC IMPLEADED PARTY AND 200-10-002734-114 (650-36-000220-109) (652-73-000561-089) CLYDE WELLMAN APPELLANT – defendant v. ATTORNEY GENERAL OF CANADA RESPONDENT – prosecutor AND 200-10-002735-111 (650-36-000219-101) (652-73-000559-083) NELSON MAURICE APPELLANT – defendant v.

ATTORNEY GENERAL OF CANADA RESPONDENT – prosecutor AND 200-10-002736-119 (650-36-000227-104) (652-73-000579-081) DERRICK GALLICHON APPELLANT – defendant v. ATTORNEY GENERAL OF CANADA RESPONDENT – prosecutor AND 200-10-002737-117 (650-36-000205-100) (650-36-000206-108) (652-72-000481-090) (652-72-000482-098) LAMBERT GALIBOIS APPELLANT – defendant v. DIRECTOR OF CRIMINAL AND PENAL PROSECUTION RESPONDENT – prosecutor and ATTORNEY GENERAL OF QUEBEC IMPLEADED PARTY AND 200-10-002738-115 (650-36-000223-103) (652-73-000564-083) CHURCHILL BOLAND

APPELLANT – defendant v. ATTORNEY GENERAL OF CANADA RESPONDENT – prosecutor AND 200-10-002739-113 (650-36-000189-106) (652-72-000456-084) AMOS LAVALLÉE APPELLANT – defendant v. DIRECTOR OF CRIMINAL AND PENAL PROSECUTION RESPONDENT – prosecutor and ATTORNEY GENERAL OF QUEBEC IMPLEADED PARTY AND 200-10-002746-118 (650-36-000195-103) (650-36-000207-106) (650-36-000208-104) (650-36-000209-102) (652-72- 000463-080) (652-72-000485-091) (652-72-000486-099) (652-72-000487-097) CARANE LAVALLÉE APPELLANT – defendant v.

DIRECTOR OF CRIMINAL AND PENAL PROSECUTION RESPONDENT – prosecutor and ATTORNEY GENERAL OF QUEBEC IMPLEADED PARTY AND 200-10-002747-116 (650-36-000194-106) (652-72-000461-084) MARCEL WELLMAN APPELLANT – defendant v. DIRECTOR OF CRIMINAL AND PENAL PROSECUTION RESPONDENT – prosecutor and ATTORNEY GENERAL OF QUEBEC IMPLEADED PARTY AND 200-10-002748-114 (650-36-000192-100) (652-72-000459-088) DERRICK GALLICHON APPELLANT – defendant v.

DIRECTOR OF CRIMINAL AND PENAL PROSECUTION RESPONDENT – prosecutor and ATTORNEY GENERAL OF QUEBEC IMPLEADED PARTY AND 200-10-002749-112 (650-36-000186-102) (652-72-000451-085) CHURCHILL BOLAND APPELLANT – defendant v. DIRECTOR OF CRIMINAL AND PENAL PROSECUTION RESPONDENT – prosecutor and ATTORNEY GENERAL OF QUEBEC

IMPLEADED PARTY AND 200-10-002750-110 (650-36-000190-104) (652-72-000457-082) TONY MARTIN APPELLANT – defendant v. DIRECTOR OF CRIMINAL AND PENAL PROSECUTION RESPONDENT – prosecutor and ATTORNEY GENERAL OF QUEBEC IMPLEADED PARTY AND 200-10-002751-118 (650-36-000196-101) (652-72-000464-088) RÉGINALD SHATTLER APPELLANT – defendant v. DIRECTOR OF CRIMINAL AND PENAL PROSECUTION RESPONDENT – prosecutor and ATTORNEY GENERAL OF QUEBEC IMPLEADED PARTY JUDGMENT [ 1 ] The appellants appeal from a judgment rendered by the Superior Court, District of Mingan (the Honourable Mr.

Justice Jean-Claude Beaulieu), rendered on October 4, 2011, which dismissed the appeals from their convictions by the Court of Quebec (the Honourable Judge Richard Côté), rendered on October 19, 2010, on the 83 counts of illegal fishing brought by the federal prosecutor (37 counts) and by the provincial prosecutor (46 counts). [ 2 ] For the reasons of Hilton, J.A., with which Thibault, J.A. agrees, and for the reasons of Thibault, J.A., with which Hilton, J.A. agrees: THE COURT: [ 3 ] DISMISSES the appeals. [ 4 ] For other reasons, Duval Hesler, C.J.Q., would have allowed the appeal in part, reversed the judgment of the Superior Court in part, and allowed in part the motion to suspend proceedings for some of the appellants on the counts of unauthorized fishing under paragraph 14(1) (

b) of the Atlantic Fishery Regulations , 1985 (SOR/86-21) and of fishing without a licence under the Quebec Fishery Regulations, 1990 (SOR/90-214); [ 5 ] With respect to the other counts, Duval Hesler, C.J.Q. agrees with the reasons of Hilton, J.A. NICOLE DUVAL HESLER, C.J.Q. FRANCE THIBAULT, J.A. ALLAN R. HILTON J.A. Mtre Marc Watters and Mtre Lina Beaulieu Gagné, Letarte For the appellants Mtre J.M.

Denis Lavoie Criminal and penal prosecutor For the respondent Attorney General of Canada Mtre Jean-Gabriel L'Écuyer Criminal and penal prosecutor For the respondent Director of Criminal and Penal Prosecutions Mtre Léandro Isai Steinmander Bernard, Roy For the impleaded party Attorney General of Quebec Date of hearing: October 4, 2012 REASONS OF HILTON, J.A. I THE FACTS AND PROCEEDINGS

[ 6 ] The appellants are of Native origin but are not "registered Indians" within the meaning of the Indian Act . [1] They are members of the Native Alliance of Quebec (the "NAQ"), a legal person constituted under

Part III of the Quebec Companies Act [2] [ translation ] in order "to defend and promote the collective interests of off-reserve aboriginal persons in the Province of Quebec". [ 7 ] They appeal from a judgment dismissing their appeals from their convictions on a total of 83 counts of illegal fishing brought by the federal prosecutor (37 counts) and the provincial prosecutor (46 counts). [ 8 ] The offences were allegedly committed between July of 2006 and September of 2008 near the village of Saint-Augustin on the Lower North Shore, on the border between Quebec and Labrador.

The charges laid by the Public Prosecution Service of Canada are for offences relating to the fishing of lobster, crab, herring, and whelk as described in the Atlantic Fishery Regulation, 1985 , [3] while those brought by the Quebec Criminal and Penal Prosecutor concern offences relating to the fishing of Atlantic salmon and speckled trout as described in the Quebec Fishery Regulations, 1990 [4] and in the Fisheries Act , the enabling statute of the A.F.R. and the Q.F.R . A more specific description of these charges follows: Federal files: • Unauthorized fishing (paragraph 14(1)(

b) A.F.R. ): 24 counts; • Fishing during the period of closure (paragraphs 52(

a) and 57(1)(

a) A.F.R. ): 13 counts; Provincial files: • Fishing without being the holder of an applicable license (subsection 5(1) Q.F.R. ): 19 counts; • Use of fishing method restrictions and specifically with a net, crossbow, or spear (sections 27 and 31 Q.F.R. ): 22 counts; • Possession of untagged ( subsection 13(5) Q.F.R. ) or illegally fished (section 27 Q.F.R. and

section 33 Fisheries Act ) Atlantic salmon: 5 counts. [ 9 ] The appellants do not contest the facts relating to these charges. Their defence, however, raises several constitutional arguments. (

A) Constitutional notices [ 10 ] On January 18, 2008, the appellant Tony Martin served a notice under

article 95 C .C.P. on the Attorney General of Canada indicating his intention to seek the dismissal of the two charges brought by the federal prosecutor on the grounds that the provisions of the A.F.R. on which these charges are based [ translation ] "are constitutionally inapplicable to him under sections 15 , 7 , 8 and paragraph 2(

d) of the Canadian Charter of Rights and Freedoms ". Subsidiarily, he submits that these same provisions [ translation ] "unconstitutionally infringe his aboriginal rights under subsection 35(1) of the Constitution Act, 1982 ". [ 11 ] On December 23, 2008, an amended notice was served on the Attorney General of Canada and the Attorney General of Quebec on behalf of nearly all of the appellants, [5] including the appellant Martin. This notice claims that

section 15, paragraph 2( d ),

section 7 and

section 12 of the Canadian Charter were violated. [ 12 ] The appellants reproach the federal Minister of Fisheries and Oceans and the provincial Minister of Natural Resources and Wildlife for restricting the issuing of communal fishing licences under the Aboriginal Communal Fishing Licences Regulations [6] solely to officially recognized Indian bands, thereby refusing this benefit to members of the NAQ. In their view, this practice infringes their equality rights and their right to freedom of association guaranteed under

section 15 and paragraph 2(

d) of the Canadian Charter . [ 13 ] Moreover, the appellants maintain that this discriminatory policy is the direct cause of the criminal proceedings against them and thus infringes their right to liberty and security of the person under

section 7 of the Canadian Charte r. In conclusion, they note that, in 2006, the federal and provincial prosecutors ordered a stay of similar proceedings against NAQ members, thus creating a legitimate expectation that their fishing activities would subsequently be tolerated. In this context, they submit that [ translation ] "the introduction of new prosecutions can be characterized as cruel and unusual", thus infringing their right under

section 12 of the Charter . [ 14 ] Four of the appellants were the subject of prosecutions for which a stay of proceedings was ordered in 2006. [7] In those prosecutions, the defendants had also argued their rights under sections 15 , 7 , and 2(

d) of the Charter and

section 35 of the Constitution Act, 1982 , in addition to raising the notion of aboriginal rights. At the time, the Attorneys General had unsuccessfully tried to have the Charter grounds dismissed at the preliminary stage. [8] Dumais J. of the Court of Quebec had, in effect, opted for prudence, refusing to rule in the absence of evidence.

He wrote: [ translation ] [78] Given the importance of this case, it is my view that the principle of judicial restraint should apply, since important rights of both parties are in play and since it is in the public interest for the Court to hear all of the evidence so that it may rule on the issues before it with the benefit of the greatest possible guidance. [9] It was following this failure, in fact, that the stay of proceedings was ordered. (

B) Motion to suspend proceedings [ 15 ] On December 30, 2008, the appellants filed motions seeking a suspension of the criminal proceedings in which they were involved [ translation ] "until the Superior Court has adjudicated a motion for declaratory judgment to be submitted before that Court forthwith in connection with the constitutional issues raised in this case". In support of their motion for a stay, they rely on the reasons of LeBel J. in R. v. Marshall , pursuant to which civil proceedings are more appropriate than criminal actions when deciding aboriginal rights issues: 144 ... Accordingly, when issues of aboriginal title or other aboriginal rights claims arise in the context of

summary conviction proceedings, it may be most beneficial to all concerned to seek a temporary stay of the charges so that the aboriginal claim can be properly litigated in the civil courts. Once the aboriginal rights claim to the area in question is settled, the Crown could decide whether or not to proceed with the criminal charges. [10] (Emphasis added.) [ 16 ] In this respect, it is worth specifying that the motion for declaratory judgment filed in March of 2009 [11] by the NAQ and other applicants (but not all of the appellants) before the Superior Court does not seek the recognition of aboriginal rights.

Rather, the motion challenges the policy adopted by the Government of Quebec in its implementation of a resolution adopted by the National Assembly on March 20, 1985, which announced the government's intention to come to agreements with aboriginal communities to avoid legal confrontations, particularly those involving aboriginal rights. [12] [ 17 ] More specifically, the motion faults the provincial government for having applied the 1985 resolution too restrictively by refusing to come to this type of agreement with aboriginal organizations that were not officially recognized Indian Bands under the Indian Act , alleging that this refusal both discriminates against NAQ members and infringes their freedom of association. [13] In addition, they challenge the constitutional validity of

section 24.1 of the Act Respecting the Conservation and Development of Wildlife [14] and

section 3.48 of the Act Respecting the Ministère du Conseil Exécutif [15] (two provisions they claim were enacted to enable agreements envisioned in the 1985 resolution). [ 18 ] In the motion for declaratory judgment, the applicants also formulate arguments similar to those described above concerning the effect of these [ translation ] "discriminatory policies" on their right to liberty and security of the person and their right to be protected against cruel and unusual treatment.

To conclude, the motion for declaratory judgment raises essentially the same criticisms of the federal government, which is accused of [ translation ] "endorsing the discriminatory policy of the Government of Quebec toward NAQ communities" and of requiring more from the NAQ than from other similar organizations in other provinces and territories. [ 19 ] Aside from the conclusions regarding

section 24.1 A .R.C.D.W . and

section 3.48 of the Act Respecting the Ministère du Conseil Exécutif , the relief sought in this motion for declaratory judgment is the following: [ translation ] - GRANT this motion; - DECLARE that NAQ members whose ancestry connects them to any one of the the Abenaki Algonquin, Atikamekw, Cree, Huron, Maliseet, Mi'kmaq, Mohawk, Innu, Naskapi, or Inuit nations are included in the National Assembly Resolutions of March 20, 1985, and May 20, 1989. [...] - DECLARE that the Minister of Fisheries and Oceans and the Quebec Minister of Natural Resources and Wildlife are required to negotiate in good faith and to enter into agreements with the NAQ, for the benefit of the aboriginal persons it represents, with a view to granting fishing licences under the Aboriginal Communal Fishing Licences Regulations ;

- DECLARE that the criminal proceedings now pending against the applicants constitute cruel and unusual treatment against which the applicants are protected by

section 12 of the Charter of Rights and Freedoms ; - DECLARE that the Minister of Fisheries and Oceans Canada and the Quebec Minister of Natural Resources and Wildlife have violated, without any justification, the applicants’ equality rights under

section 15 of the Charter of Rights and Freedoms ; - DECLARE that the Minister of Fisheries and Oceans Canada and the Quebec Minister of Natural Resources and Wildlife have violated, without any justification, the applicants’ rights under

section 7,

section 8, and paragraph 2(

d) of the Charter of Rights and Freedoms ; - DECLARE that the Minister of Fisheries and Oceans Canada and the Quebec Minister of Natural Resources and Wildlife have infringed the applicants’ rights under sections 3 and 10 of the Quebec Charter of human rights and freedoms in a manner that is not consistent with

section 9.1 of that Charter , and that the Minister of Fisheries and Oceans has also violated

section 23 of the said Charter ; - ALL OF WHICH is respectfully submitted, with costs. (Emphasis in original.) [ 20 ] This motion, however, was dismissed by Côté J.C.Q. [16] I will return to this subject in paragraph [36]. (

C) Motion to stay proceedings [ 21 ] Following the dismissal of their motion to suspend proceedings, the appellants filed a motion to stay proceedings based on subsection 24(1) of the Canadian Charter as remedy for the constitutional violations they claim to have suffered. They argue, inter alia , that the fact that federal and provincial prosecutors introduced new criminal proceedings against them after having stayed similar charges in 2006 constitutes an abuse of process within the meaning of R. v.

O'Connor . [17] [ 22 ] The Attorney General of Canada and the Attorney General of Quebec have each filed a motion to dismiss the motion to stay proceedings. Despite several differences in wording, in essence both motions claim that, even admitting the facts alleged by the appellants, a stay of proceedings cannot be ordered in this case, thus rendering a voir-dire superfluous.

They argue, inter alia , that the [ translation ] "true purpose of this case" raised in the appellant’s motion is a judicial review of the decisions of the federal and provincial ministers not to grant them communal fishing licences, an issue that is not within the jurisdiction of the Court of Quebec. II JUDGMENTS OF THE COURT OF QUEBEC [ 23 ] In two nearly identical judgments rendered on November 13, 2009 – one concerning the provincial files, the other the federal files – Côté J.C.Q. dismissed the appellants' motion to suspend proceedings.

He distinguished the constitutional Charter arguments raised in the motion for declaratory judgment from actions based on

section 35 of the Constitution Act, 1982 , which had been the issue in Marshall . [18] In his view, the Supreme Court clearly states in R. v. Mills [19] that, unlike cases involving aboriginal rights issues, the court competent to hear a Charter motion is the court with the jurisdiction to award the relief sought under subsection 24(1) . In this case, it is the Court of Quebec. He concluded as follows: [ translation ] [46] In short, unlike some aboriginal rights actions for declaratory judgment based on

section 35 of the Constitution Act , the proceeding brought by the defendants before the Superior Court cannot have a sufficient effect on the outcome of the criminal trial to justify suspending that trial. On the contrary, a suspension would run contrary to the proper administration of justice. [ 24 ] As for the constitutional validity of

section 24.1 A .R.C.D.W. , the judge held that this issue is not relevant to federal prosecutions and that it is not determinative in provincial prosecutions. In fact, he found that in the most favourable of situations, the Superior Court could force the provincial minister to negotiate with the NAQ, but that this would not guarantee the conclusion of an agreement, let alone the retroactive effect of any agreement reached.

Thus, according to the judge, the appellants' situation at the time of the offences charged against them would not be affected by the outcome of the motion for declaratory judgment. [ 25 ] With regard to the stay of proceedings, Côté J.C.Q. also rendered two similar judgments, which were dated May 7, 2010.

In them, he reviewed the various constitutional violations alleged by the appellants to determine whether, assuming the facts were taken as proved, [ translation ] "it would be reasonably likely to find that there was a Charter violation and that an order for relief bringing an end to the current criminal proceedings was necessary". [ 26 ] First, he rejected the issue of freedom of association because [ translation ] "it was not specifically argued before the Court". He then rejected the appellants' claims concerning the 2006 stay of charges similar to the ones laid against them.

In the view of the judge, the prosecutors’ decision to stay the 2006 charges cannot be interpreted as tacit permission to fish. Moreover, the filing of new criminal complaints for new offences cannot be considered to be cruel and unusual treatment within the meaning of

section 12 of the Canadian Charter or an abuse of process. [ 27 ] Subsequently, but only in his judgment concerning the charges brought by the provincial prosecutor, the judge found that the provincial government cannot be faulted for failing to comply with the 1985 resolution of the National Assembly. In this regard, the judge found that [ translation ] "[a]lthough such a resolution voted on by the majority of the members of the National Assembly might have some political weight in terms of the government's orientation toward aboriginal communities, it creates no legal obligations for the government and confers no rights on the defendants". [ 28 ] Similarly, the judge concluded that

section 24.1 A .R.C.D.W. does not apply to the issuing of aboriginal communal fishing licenses. Indeed, this provision concerns solely the agreements contemplated in that statute and not the communal aboriginal fishing licenses issued under the A.C.F.L.R. , which is a federal regulation enacted under the Fisheries Act .

Section 2 of this regulation also contains a broad definition of the term "aboriginal organization", which is not limited solely to Indian Bands. Therefore, it is false to state that the discretion of the Quebec Minister, empowered by the A.C.F.L.R . to issue aboriginal communal licences to fish in Quebec lakes and rivers, is limited by

section 24.1 A .R.C.D.W . [ 29 ] As for the issue of equality rights, the judge rejected the prosecutors' argument that the Court of Quebec lacked jurisdiction. He refused to rule out the possibility for an accused alleging an equality rights infringement to contest, during a criminal trial, the validity of the administrative decisions on which his prosecution is based. He recognized, however, that the fact that the appellants' contestation does not specifically target the statutory and regulatory provisions at the basis of their prosecution causes a problem regarding which remedy should be ordered. He wrote: [ translation ] "even if the Court finds that the Minister violated

section 15 of the Charter , their fishing activities would still be illegal and constitute contraventions of a valid regulation". On this point, the judge relied on an obiter dictum of Low, J.A. of the British Columbia Court of Appeal in R. v. Kapp : [20] [ translation ] [57] In R. v. Kapp , ... non-aboriginal commercial fishers had taken

part in an unlawful protest fishery to contest the granting of communal fishing licences to aboriginal communities in a program aimed at improving their situation. At their trial for unlawful fishing, they claimed that the government program providing for the granting of such licences violated their equality rights under

section 15 of the Charter and sought a stay of proceedings as a remedy. The British Columbia Court of Appeal concluded that the program is not discriminatory. The Honourable Justice [Low] added that, in any event, even if there was a violation of

section 15 of the Charter , no remedy was available to the accused because they had deliberately broken a law, the validity of which was not in question. He wrote: 91 Although it is not necessary to determine the issue of remedy because of the failure of the appeal on the constitutional issues, I question whether any remedy was available to the appellants under s. 24(1) of the Charter upon proof of a breach of their rights under s. 15(1) . The appellants do not claim that the breach they assert arose out of the offence

section (s. 53(1) of the Pacific Fishery Regulation), the charging

section (s. 78 of the Fishery Act), the conduct of the DFO officers, or the conduct of the prosecution. 92 On the offence dates the appellants conducted what they call a “protest fishery” which, like “civil disobedience”, is a term unknown to the law. They deliberately broke a law in order to attack the PSP on constitutional grounds. Both the trial judge and the appeal judge so found.

Even if the law under which the [aboriginal] fishers fished on the offence dates was in breach of the equality rights of the appellants, it remained unlawful for the appellants to fish on those dates. 93 What distinguishes this case from all other criminal cases in which Charter rights are raised and with which I am familiar is that the appellants do not challenge the constitutionality of the law they disobeyed. As I have said, they do not claim that either s. 53(1) of the regulations or s. 78 of the statute offends their Charter rights.

Nor do they challenge any provision in the law (such as a presumption clause or a reverse onus clause) that would have assisted the prosecutor in obtaining a conviction. (Emphasis added.)

[30] Without predetermining the legitimacy of the appellants' constitutional claims concerning their right to obtain aboriginal communal fishing licences, the judge found that these claimscould not justify a stay of the criminal proceedings against them.

He therefore granted the motions of the Attorneys General and dismissed the motion of the appellants for a stay ofproceedings without hearing the evidence in support of the latter motion. [31] On October 19, 2010, the appellants filed written admissions acknowledging the facts alleged against them to allow a final judgment to be rendered and thereby appeal theinterlocutory judgments. Later that same day, they were convicted and condemned to pay fines ranging between $150 and $500 per count.

III SUPERIOR COURT JUDGMENT [32] In a judgment rendered on October 4, 2011, the Superior Court judge hearing the appeal from the conviction summarized the facts and proceedings relating to this case.

He thenadded the following comment: [translation] [19] Moreover, it is worth pointing out that the wide-ranging actions brought so far (including the motion for declaratory judgment) have a single objective, namely, to obtain from the Courtor a court a decision concluding that the appellants' constitutional rights have been violated and, consequently, an order compelling both the federal and provincial governments to negotiateagreements with the Native Alliance of Quebec and/or its members concerning subsistence fishing. [33] Finally, he concluded summarily that the interlocutory judgments rendered by the Court of Quebec judge contained no error justifying his intervention.

The appellants then soughtand obtained leave to appeal that judgment before this Court. IV THE ISSUES IN DISPUTE [34] Before the Court, the appellants reiterate the arguments that they unsuccessfully raised before the Court of Quebec and the Superior Court. In their

summary of the facts, they listnine grounds of appeal, which I will address through the following two questions and four sub-questions: 1. Did the Superior Court judge err in refusing to interfere with the trial judge's decision to refuse to adjourn the criminal files pending the Superior Court's ruling on the motion fordeclaratory judgment?2. Did the Superior Court judge err in refusing to reverse the trial judge's decision that the facts alleged by the defence, even if accepted as true, did not give rise to a stay of proceedings?a.

Did the Court of Quebec judge err in finding that the allegations of discrimination on the part of the federal and provincial ministers were not sufficiently related to the criminalprosecutions to justify a stay of proceedings?b. Did the Court of Quebec judge err in imposing the burden of establishing the existence of aboriginal rights on the appellants?c. Did the Court of Quebec judge err in discounting the impact of the 1985 resolution of the National Assembly, as well as that of

section 24.1 A.R.C.D.W.? d. Did the Court of Quebec judge err in refusing to recognize the infringement of the appellants’ rights under sections 7 and 12 of the Canadian Charter? V ANALYSIS [35] Like the Superior Court judge, I am of the view that the judge of the Court of Quebec did not err in dismissing the appellants' motion to suspend proceedings and in granting themotions to dismiss filed by the attorneys general contesting the appellants' motion to suspend proceedings. My reasons follow. (

A) Motion for a suspension of proceedings [36] In their factum, the appellants refer to an amended version of the motion for declaratory judgment (which is still pending before the Superior Court). They admit that this amendmentwas subsequent to the judgments rendered by the Court of Quebec but nevertheless ask the Court to take it into consideration because it will [translation] "sooner or later be submitted to thelower courts, notwithstanding the outcome of the appeal".

These amendments change nothing in the case before us. [37] I recognize that the statement of Côté, J.C.Q. to the effect that [translation] "the proceeding instituted ... before the Superior Court cannot have a sufficient effect on the outcome ofthe criminal trial to justify suspending this trial" requires some qualification. It is self-evident that a declaration by the Superior Court that the criminal proceedings against the appellantsconstitute cruel and unusual treatment, which was sought in the motion for declaratory judgment,[21] would have had an impact on the proceedings before the Court of Quebec.

The issue,however, was whether it fell to the Court of Quebec or the Superior Court to make such a determination. [38] In this respect, the appellants maintain that Côté, J.C.Q. erred in finding that the Court of Quebec was the court of competent jurisdiction, within the meaning of

section 24 of theCanadian Charter, to decide their constitutional defence. [39] The

section reads as follows: 24.

(1) Toute personne, victime de violation oude négation des droits ou libertés qui lui sontgarantis par la présente charte, peut s'adresser àun tribunal compétent pour obtenir la réparationque le tribunal estime convenable et juste euégard aux circonstances. ... 24.

(1) Anyone whose rights or freedoms, asguaranteed by this Charter, have been infringedor denied may apply to a court of competentjurisdiction to obtain such remedy as the courtconsiders appropriate and just in thecircumstances. ... [40] In Mills,[22] the Supreme Court found that the "court of competent jurisdiction" within the meaning of

section 24 is the court that is able to grant the relief sought. The case law isreplete with relevant examples of the Court of Quebec ruling on constitutional arguments raised in defence against criminal charges.[23] [41] In this case, however, the appellants contend that when they filed their motion to suspend proceedings, the remedy they sought was purely declaratory, and that this type of remedy inprinciple falls within the exclusive jurisdiction of the Superior Court.

Although this is a clever argument, it has been explicitly rejected by the Supreme Court: The policy concern against allowing declarations, even of unconstitutionality, as a separate and overriding procedure is that they will, in many cases, result in undesirable procedural overlapand delay. As long as a reasonably effective procedure exists for the consideration of constitutional challenges, I fail to see why another procedure must be provided. ...[24] [42] Finally, the appellants point out that, generally speaking, there are exceptions to the rule in Mills.

This is the case, for example, where [translation] "the trial judge is the perpetratorof the alleged violation" or where the intervention of the Superior Court [translation] "appears necessary for a prompt and efficient – as opposed to a merely virtual and random – application ofCharter rights".[25] That said, the appellants have raised none of these specific exceptions. [43] Thus, Côté J.C.Q. did not commit an overriding error in dismissing the appellants' motion to suspend proceedings, which relied on an erroneous

interpretation of Marshall. In fact,LeBel J.'s suggestion to proceed first with the declaratory judgment is not relevant to every case in which an aboriginal defendant raises a constitutional argument as a defence against criminalcharges, but only in those cases where the defence specifically concerns the existence of aboriginal rights or title. (

B) The motion to stay proceedings [44] The appellants fault the Court of Quebec judge for dismissing their motion to stay proceedings without having heard the supporting factual evidence, even though doing so isrecognized by the Supreme Court:[26] As the AGBC rightly points out, mandating a preliminary determination on the utility of a Charter-based inquiry is not new: R. v. Pires, 2005 SCC 66 , 2005 SCC 66, [2005] 3S.C.R. 343. Similar thresholds are also imposed in other areas of the criminal law, they are not an anomaly. Threshold requirements may be imposed for pragmatic reasons alone.

As thisCourt observed in Pires (at para. 35): For our justice system to operate, trial judges must have some ability to control the course of proceedings before them. One such mechanism is the power to decline to embark upon anevidentiary hearing at the request of one of the parties when that party is unable to show a reasonable likelihood that the hearing can assist in determining the issues before the court. (Emphasis added.)

[45] Let us now consider whether Côté J.C.Q. was correct in holding that hearing the evidence would not have assisted in determining the issues raised by the motion to stay proceedings. (

i) Connection between the alleged discrimination and the criminal complaints [46] The appellants fault the judge for erring in his assessment of the connection between the discrimination they allege to have suffered due to the manner in which aboriginal communalfishing licences are granted and the criminal complaints against them in this case. In this respect, they question the accuracy of the obiter of Low J.A. of the British Columbia Court of Appealin Kapp,[27] which was not commented upon by the Supreme Court. Their most relevant argument, however, concerns R. v.

Advance Cutting & Coning Ltd.[28] In that case, LeBel J. rejectedan argument similar to the one Côté J.C.Q. accepted by in the present case. LeBel J. wrote the following: 91 The issue of an alleged breach of the guarantee of freedom of association by the provisions of the Construction Act relating to union membership was raised by Advance Cutting & CoringLtd. and the other appellants in the construction industry as an answer to charges laid under s. 119.1 of the Construction Act.

Advance Cutting and the other appellants face various charges ofhaving hired and used workers who did not have the competency certificates required under the Construction Act, contrary to s. 119.1. Some appellants who are construction workers standcharged with having performed construction work within the meaning of the Act without holding the required competency certificates, also under s. 119.1. 92 The appellants did not dispute the facts.

They conceded that they had used unqualified personnel on construction work, which was subject to the Act, or in the case of the workersthemselves, that they had not obtained the necessary work permits and vocational certifications, before going to work. 93 They asserted that workers could not obtain competency certificates without becoming members of one of the union groups listed in s. 28 of the Construction Act. They claimed that thisobligation was unconstitutional, because it breaches the right not to associate which, in their opinion, is a component of the s. 2(

d) guarantee of freedom of association in the Charter. 94 The appellants argued that construction workers should not have to obtain the competency certificates, because their issuance was tied in with compulsory union membership.

At trial, onthat basis only, they asked that all the charges laid against them be dismissed. 95 The intervener Commission de la construction du Québec, a public body in charge of the application and enforcement of the Act, and the Attorney General of Quebec, the mis en cause inthese proceedings, disputed even the standing of Advance Cutting & Coring Ltd. and of the other appellants to raise the constitutional questions.

They submitted that the appellants/accusedhad been charged with breaches of the rules governing the competency of workers -- charges which are distinct from the Act’s provisions about union membership. Their position was that,even if the constitutional questions were to be decided in favour of the appellants/accused, they would still be guilty as charged. Thus, the defence would be totally irrelevant. 96 The argument put forward by the mis en cause about the lack of standing of the appellants should be dismissed.

As appears from the legislation challenged in this appeal, the conditionsgoverning the issuance of competency certificates and union membership are closely linked. A successful challenge to the provisions governing the compulsory choice of a collectivebargaining agent might give rise to some defence to the specific charges laid in the present case.

Moreover, at the present stage of the proceedings, the interest of justice favours a carefulconsideration of the substantive issues brought before this Court. (Emphasis added.) [47] The final sentence of this excerpt, however, indicates that LeBel J.'s conclusion is intimately related to the specific nature of the appeal before the Supreme Court, and that it wasmotivated, at least in part, by the Court’s interest at the time in considering on the issue of the right not to associate.

Moreover, it would appear that the elements relevant to the analysis of theissue in that case were found in the provisions of the statute under consideration. Advance Cutting did not involve a determination of whether evidence relating to a constitutional argumentraised should be heard, as does the one before the Court. [48] Advance Cutting can be further distinguished from the present case.

In that case, while the accused did not challenge the constitutional validity of the provision on which theirprosecution was based, they did at least challenge the statutory scheme that required them to belong to a union in order to obtain a competency card. [49] In contrast, in the case before us, the appellants do not challenge the validity of the Fisheries Act, the A.F.R., or the Q.F.R. under which they are being prosecuted, any more thanthey impugn the lawfulness of the A.C.F.L.R., which empowers the federal and provincial ministers to issue aboriginal communal fishing licences.

Thus, unlike the accused in AdvanceCutting or even in Kapp,[29] the appellants do not challenge the validity of any statutory or regulatory provision whatsoever.

Only the merits of the decisions of the federal and provincialministers are at issue. [50] The development of the case law on the judicial review of administrative decisions on Charter contravention grounds, however, confirms that the appellants should not make use ofa criminal trial to challenge the decisions of the provincial and federal ministers not to grant them fishing licences. [51] While there might once have been some confusion regarding the way the Charter could be used to challenge an administrative decision as opposed to a statutory or regulatoryprovision,[30] this controversy was settled by Lake v.

Canada (Minister of Justice).[31] Since then, this type of challenge must be asserted in the context of a proceeding in judicial review ofan administrative decision. [52] Moreover, if a court were to find that the policy of the federal and provincial ministers (regarding the issuing of aboriginal communal fishing licences) was in fact discriminatorytoward the appellants, the sanction would be to ask that the decision-makers to decide again, not to make that decision for them.

Even in such a case, it would be impossible to claim that theappellants were necessarily entitled to aboriginal communal fishing licences, let alone unconditional licences[32] with retroactive effect exonerating them from the charges they face in thiscase.[33] [53] In this respect, it is appropriate to cite an excerpt from a decision rendered by the Court of Quebec in another case involving an aboriginal fisherman who was a member of the NAQ: [translation] [56] Counsel for the defence maintains that if the NAQ had been able to negotiate with the Minister, it would would have been able to shelter the defendant from prosecution for wildlifeconservation offences and for contraventions of the Fisheries Act.

Since these negotiations never took place, it is clear that what counsel for the defence is asking me to do is based more onspeculation than the rule of law. It would be highly imprudent for a court of criminal jurisdiction to assume what the result of negotiations would be.[34] (Emphasis added.) [54] Consequently, Côté J.C.Q. did not err on the issue of the connection between the appellants' allegations of discrimination and the criminal complaints against them.

Even if the factsthe appellants alleged were assumed to be true, the allegation of a violation of their right does not justify quashing the criminal charges. (ii) Aboriginal rights [55] As a separate point, the appellants claim that Côté J.C.Q. erred in indicating that obtaining an aboriginal communal fishing permit requires establishing the existence of aboriginalrights. In their view, this error is apparent in the following excerpt: [translation] [68] The defendants complain that they are treated unfairly because they do not have access to a communal fishing licence.

Everything indicates that communal fishing licences permitfishing for food, the same type of activity that represents an aboriginal right for some communities. To prove an aboriginal right, however, the Métis must meet the criteria in Powley 2003SCC 43 , [2003] A.C.S. No. 43. ... (Emphasis added.) [56] It is true that this paragraph, read in isolation, supports this idea. A reading of the judgment of Côté J.C.Q. in its entirety demonstrates, however, that he did not err in the manner theappellants allege.

Rather, he stated that possession of an aboriginal communal fishing licence is an exculpatory ground that is distinct from the demonstration of an aboriginal right. [translation] [67] If the defendants deliberately committed the offences charged against them, they cannot be exempted from the application of the statute they violated unless they can prove a lawfulground for exception. The communal fishing licence is one such exception and the existence of an aboriginal fishing right protected under

section 35 of the Constitution Act is another. (Emphasis added.) [57] This ground of appeal is without merit. (iii) 1985 Resolution of the National Assembly and

section 24.1 A.R.C.D.W. [58] The appellants claim that Côté J.C.Q. erred in discounting the impact of the 1985 resolution of the National Assembly and

section 24.1 A.R.C.D.W. They reiterate that the resolutionconstitutes [translation] "a quasi-constitutional document" and argue that [translation] "the

interpretation of these documents is a complex task that deserves at least to survive the interlocutory

stage". [59] This ground of appeal is also without merit. Without even broaching the issue of the effect of the National Assembly resolution, the appellants' claims would, at most, make itpossible to establish the existence of an obligation on the part of the federal and provincial authorities to negotiate in good faith with the appellants and their association with the objective ofgranting them aboriginal communal fishing licences.

Such an outcome does not guarantee that they would actually obtain such licences, however, much less that the licence conditions wouldabsolve them of the criminal charges against them. (iv) Infringement of rights guaranteed by sections 7 and 12 of the Canadian Charter [60] The appellants maintain that the present criminal proceedings represent both abuse of process and cruel and unusual treatment in that they deprive them of [translation] "afundamental method of ensuring their families' food security and from perpetuating a social model that relies in large part on the privileged connection they have with the flora, fauna, andfishery resources”.

This infringement is all the more serious since [translation] "the appellants, along with the other members of the St-Augustin NAQ community, received signals that theMinisters concerned were going to open a dialogue on the application of the Aboriginal Communal Fishing Licences Regulation, rather than subjecting them to criminal proceedings",referring here to the 2006 stay of charges similar to the ones of which they have been convicted. [61] First, the arguments based on

section 12 of the Canadian Charter concerning the protection against cruel and unusual treatment must be rejected. In fact, the language used by theSupreme Court to describe this protected right indicates that, in this case, where the appellants have been sentenced to pay between $150 and $500 per count, it is not engaged: 4 This Court has dealt with s. 12 on many occasions and there is no controversy on the test that must be met. Treatment or punishment which is disproportionate or “merely excessive” is not“cruel and unusual”: R. v. Smith, (SCC), [1987] 1 S.C.R 1045 at 1072.

The treatment or punishment must be “so excessive as to outrage standards of decency”: Smith, at p.1072; R. v. Goltz, (SCC), [1991] 3 S.C.R. 485 at p. 499; R. v. Luxton, (SCC), [1990] 2 S.C.R. 711 at 724. The court must be satisfied that “the punishmentimposed is grossly disproportionate for the offender, such that Canadians would find the punishment abhorrent or intolerable”: R. v. Morrisey, 2000 SCC 39 , [2000] 2 S.C.R. 90, atpara. 26 (emphasis in original).[35] (Underlining added, italics in original) [62] As for the right to liberty and security of the person guaranteed in

section 7 of the Canadian Charter and the allegations of abuse of process, it should be noted that it is not sufficientto establish that the appellants are being prosecuted even though the prosecutors dropped similar charges: [62] Quite apart from any such pragmatic considerations, there is good reason to impose a threshold burden on the applicant who alleges that

an act of prosecutorial discretion constitutes anabuse of process. Given that such decisions are generally beyond the reach of the court, it is not sufficient to launch an inquiry for an applicant to make a bare allegation of abuse of process.For example, it would not suffice for an applicant to allege abuse of process based on the fact that the Crown decided to pursue the charges against him but withdrew similar charges against aco-accused.

Without more, there would be no basis for the court to look behind the exercise of prosecutorial discretion.[36] [63] The appellants, however, do more than affirm that the stay of charges in 2006 created a legitimate expectation that their fishing activities would thereafter be tolerated.

They alsoclaim that the subsequent introduction of new charges was an unfair action on the part of the prosecutors that was committed with the aim of [translation] "circumventing an unfavourablejudgment and its significant repercussions", referring here to the judgment of Dumais J.C.Q., described above.[37] [64] In support of their submission, the appellants rely on the dissenting opinion of McLachlin J. in R. v. Scott.[38] Even disregarding the fact that these reasons were not supported by themajority of the judges of the Supreme Court, the case must be distinguished.

In Scott, the Crown had ordered a stay of proceedings immediately after failing in its argument concerning anobjection to evidence.

Shortly thereafter, the Crown reinstated the same charges against the accused, thereby obtaining a second opportunity to challenge the objection before another judge.This was the very specific context in which McLachlin J. likened the attitude of the Crown to an abuse of process.[39] [65] Here, the charges brought by the prosecutors do not concern the same facts as those contemplated in the charges stayed in 2006. [66] Finally, concerning the infringement of the food security of the appellants and their families alleged in their factum, this appears to be the first time that this argument has been made.It is therefore difficult to see how the Court of Quebec and Superior Court judges can be faulted for refusing to allow the argument to be proved.

Moreover, the Attorney General of Canadanotes correctly that the appellants could also have sought to obtain individual fishing licences to ensure their subsistence.[40] [67] In conclusion, it must be remembered that a stay of proceedings is a drastic measure that should be granted "only in the clearest of cases".[41] Although the appellants invoke thepossibility of the Court granting other remedies, they refer to none in particular. [68] The appellants claim that the circumstances make it impossible for them to argue their constitutional grounds.

Administrative law, however, provides them with a perfectlyappropriate forum for such an argument to be made. [69] Indeed, during the hearing, the Court learned that a written decision refusing to grant a communal fishing license had been issued by the federal minister. This could have beencontested before the Federal Court under

section 18.1 of the Federal Courts Act.[42] As for the provincial minister, the appellants claim that he never even acknowledged receipt of therequests the NAQ made. Forcing a decision-maker to make a decision is precisely the point of a recourse in mandamus, which is now codified in

article 844 C.C.P. and in paragraph 18(1)(a)of the Federal Courts Act. [70] Thus, there is nothing to prevent the NAQ from filing new aboriginal communal fishing licence applications and, if they are again refused, from raising their constitutionalarguments through the appropriate administrative proceedings. VI CONCLUSION [71] As all of the appellants' grounds have failed, I would dismiss the appeals. ALLAN R. HILTON, J.A. SCHEDULERelevant Statutory and Regulatory Provisions (

A) Fisheries Act, R.S.C. 1985, c. F-14:

(1) En l’absence d’exclusivité du droit de pêche conférée par la loi, le ministre peut, à discrétion, octroyer des baux et permis de pêche ainsi que des licences d’exploitation de pêcheries — ou en permettre l’octroi —, indépendamment du lieu de l’exploitation ou de l’activité de pêche. […] 33. Il est interdit d’acheter, de vendre ou d’avoir en sa possession du poisson qui a été pêché en contravention avec la présente loi ou les règlements. 43.

(1) Le gouverneur en conseil peut prendre des règlements d’application de la présente loi, notamment : […]

f) concernant la délivrance, la suspension et la révocation des licences, permis et baux;

g) concernant les conditions attachées aux licences, permis et baux; […] 78. Sauf disposition contraire de la présente loi, quiconque contrevient à celle-ci ou à ses règlements commet une infraction et encourt, sur déclaration de culpabilité :

a) par procédure

sommaire, une amende maximale de cent mille dollars lors d’une première infraction ou, en cas de récidive, une amende maximale de cent mille dollars et un emprisonnement maximal d’un an, ou l’une de ces peines;

b) par mise en accusation, une amende maximale de cinq cent mille dollars lors d’une première infraction ou, en cas de récidive, une amende maximale de cinq cent mille dollars et un emprisonnement maximal de deux ans, ou l’une de ces peines. 83. Sauf disposition contraire expresse de la présente loi, les dispositions du Code criminel concernant les déclarations de culpabilité par procédure

sommaire s’appliquent aux peines et confiscations encourues en vertu de la présente loi ou de ses règlements. 7.

(1) Subject to subsection (2), the Minister may, in his absolute discretion, wherever the exclusive right of fishing does not already exist by law, issue or authorize to be issued leases and licences for fisheries or fishing, wherever situated or carried on. […] 33. No person shall purchase, sell or possess any fish that has been caught in contravention of this Act or the regulations. 43.

(1) The Governor in Council may make regulations for carrying out the purposes and provisions of this Act and in particular, but without restricting the generality of the foregoing, may make regulations […] (

f) respecting the issue, suspension and cancellation of licences and leases; (

g) respecting the terms and conditions under which a licence and lease may be issued; […] 78. Except as otherwise provided in this Act, every person who contravenes this Act or the regulations is guilty of (

a) an offence punishable on

summary conviction and liable, for a first offence, to a fine not exceeding one hundred thousand dollars and, for any subsequent offence, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year, or to both; or (

b) an indictable offence and liable, for a first offence, to a fine not exceeding five hundred thousand dollars and, for any subsequent offence, to a fine not exceeding five hundred thousand dollars or to imprisonment for a term not exceeding two years, or to both. 83. Except as otherwise provided in this Act, all penalties and forfeitures incurred under this Act or any of the regulations are recoverable and enforceable by

summary proceedings taken under the provisions of the Criminal Code relating to

summary convictions. (

B) Atlantic Fishery Regulations , SOR/86-21 :

(1) Sous réserve des paragraphes (2) et (3), le présent règlement s’applique à la gestion et à la surveillance de la pêche des espèces de poissons qui sont nommées à l’annexe I et qui proviennent […]

b) des eaux à marée des provinces du Nouveau- Brunswick, de Terre-Neuve, de la Nouvelle- Écosse, de l’Île-du-Prince-Édouard et de Québec; […]

(3) Le présent règlement ne s’applique pas […]

b) à la pêche au poisson anadrome ou catadrome dans les eaux à marée du Québec définies dans le Règlement de pêche du Québec ;à […]

(5) Les articles 13 à 14, 17, 17.1, 39 à 45 et 46 à 50, le paragraphe 51.3(1) et les articles 51.4, 52, 54, 57, 61, 61.1, 63, 66, 68, 69, 70.1 à 72, 74, 77, 78, 80, 82, 83, 87, 90, 91, 99, 106, 106.1 et 108 à 115.1 ne s’appliquent ni à la pêche ni à toute activité connexe pratiquées au

titre d’un permis délivré en vertu du Règlement sur les permis de pêche communautaires des Autochtones . […] 14.

(1) Sous réserve du paragraphe (4) et de l’

article 15 , il est interdit à quiconque de pêcher une espèce de poisson visée à l’annexe I, à moins

a) d’être titulaire d’un certificat d’enregistrement de pêcheur; et

b) d’être autorisé à pêcher cette espèce conformément au paragraphe (2).

(2) Sous réserve du paragraphe (3), est autorisée à pêcher une espèce de poisson toute personne qui

a) détient un permis autorisant la pêche de cette espèce; […] 52. Il est interdit, dans toute zone de pêche du crabe désignée à la colonne I de l’annexe XII, pendant la période de fermeture prévue à la colonne II :

a) sous réserve de l’article 55, de pêcher le crabe; […] 57.

(1) Il est interdit, dans toute zone de pêche du homard désignée à la colonne I de l’annexe XIV, pendant la période de fermeture prévue à la colonne II :

a) de pêcher le homard;

b) d’avoir en sa possession un homard, sauf lors de son transport en vertu d’un permis pour le transport de poisson délivré en vertu du présent règlement; […] 3 .

(1) Subject to subsections (2) and (3), these Regulations apply to the management and control of the species of fish set out in

Schedule I and found in or taken from ... (

b) the tidal waters of the Provinces of New Brunswick, Newfoundland, Nova Scotia, Prince Edward Island and Quebec; ...

(3) These Regulations do not apply to ... (

b) fishing for anadromous or catadromous fish in tidal waters of Quebec as defined in the Quebec Fishery Regulations ; ...

(5) Sections 13 to 14, 17, 17.1, 39 to 45 and 46 to 50, subsection 51.3(1) and sections 51.4, 52, 54, 57, 61, 61.1, 63, 66, 68, 69, 70.1 to 72, 74, 77, 78, 80, 82, 83, 87, 90, 91, 99, 106, 106.1 and 108 to 115.1 do not apply with respect to fishing and related activities carried out under the authority of a licence issued under the Aboriginal Communal Fishing Licences Regulations . ... 14.

(1) Subject to subsection (4) and

section 15 , no person shall fish for any species of fish set out in

Schedule I unless (

a) he holds a fisher’s registration card; and (

b) he is authorized, pursuant to subsection (2), to fish for that species.

(2) Subject to subsection (3), a person is authorized to fish for a species of fish if that person is (

a) the holder of a licence for that species; ... 52. No person shall, in a Crab Fishing Area set out in column I of an item of

Schedule XII, during the close time set out in column II of that item, (

a) subject to

section 55, fish for crab; ... 57.

(1) No person shall, in a Lobster Fishing Area set out in column I of an item of

Schedule XIV, during the close time set out in column II of that item, (

a) fish for lobster; (

b) possess any lobster unless the lobster is being transported under the authority of a fish transporting licence issued under these Regulations; or … (

C) Quebec Fishery Regulations

(1990) SOR/90-214:

(1) Sous réserve des paragraphes (2) et (3), le présent règlement s’applique à la gestion et à la surveillance de la pêche des poissons d’eau douce et des espèces anadromes et catadromes dans les eaux de la province et dans les eaux à marée. …

(5) À l’exception du présent article, de l’article 2, des paragraphes 4(3) et (4) et des articles 5, 10 et 23, le présent règlement ne s’applique ni à la pêche ni à toute activité connexe pratiquées au

titre d’un permis délivré en vertu du Règlement sur les permis de pêche communautaires des Autochtones . 5.

(1) Sous réserve des paragraphes (2) à (4), il est interdit de pêcher à moins :

a) soit d’être le titulaire d’un permis visé à l’annexe 5 et délivré par le ministre ou par un directeur et d’en respecter les conditions;

b) soit d’être le titulaire d’un permis délivré en vertu du Règlement sur les permis de pêche communautaires des Autochtones et d’en respecter les conditions. ... 13. (1) …

(2) Sous réserve du paragraphe (3), toute personne qui prend et garde un saumon atlantique détache sans tarder l’étiquette valide qui lui a été délivrée avec le permis et, en respectant l’ordre dans lequel les étiquettes sont joints au permis, l’attache au poisson. ...

(5) Sauf dans le cas visé au paragraphe (7), il est interdit d’avoir en sa possession un poisson pris et gardé aux termes d’un permis qui exige qu’il soit étiqueté ou un saumon atlantique, sauf s’il est étiqueté conformément au paragraphe (1), (2) ou (3), selon le cas. ...

Sous réserve des articles 28, 29, 31 et 42, il est interdit à quiconque pratique la pêche sportive de pêcher ou de prendre et de garder du poisson d’une espèce mentionnée à un

article de l’annexe 1, provenant des eaux visées à cet article, à l’aide de l’engin ou selon la méthode mentionné à cet article, pendant la période de fermeture prévue au même article. 28. Il est interdit de pêcher les espèces de poisson suivantes autrement qu’à la ligne :

a) le saumon atlantique et la ouananiche; ... 31.

(1) Sauf dans la mesure prévue à l’annexe 1, il est interdit de pêcher autrement qu’à la mouche dans une rivière à saumon mentionnée à l’annexe 6 et dans les eaux réservées à la pêche à la mouche. ... 3.

(1) Subject to subsections (2) and (3), these Regulations apply in respect of the management and control of fishing for freshwater fish and anadromous and catadromous species of fish in the waters of the Province and in tidal waters. ...

(5) Except for this

section and

section 2 , subsections 4 (3) and (4) and sections 5, 10 and 23, these Regulations do not apply with respect to fishing and related activities carried out under the authority of a licence issued under the Aboriginal Communal Fishing Licences Regulations . 5.

(1) Subject to subsections (2) to (4), no person shall fish unless the person (

a) is the holder of a licence referred to in

Schedule 5 and issued by the Minister or a Director and fishes in accordance with the conditions of that licence; or (

b) is the holder of a licence issued under the Aboriginal Communal Fishing Licences Regulations and fishes in accordance with the conditions of that licence. ... 13. (1) […]

(2) Subject to subsection (3), every person who catches and retains an Atlantic salmon shall immediately detach a valid tag issued with the person’s licence and affix it to the fish in the sequence in which it is attached to the licence. ...

(5) Except in the circumstances described in subsection (7), no person shall possess a fish that was caught and retained under a licence that requires the fish to be tagged, and no person shall possess an Atlantic salmon, unless the fish or salmon is tagged in accordance with subsection (1), (2) or (3), as applicable. … 27. Subject to sections 28, 29, 31 and 42, no person shall engage in sport fishing to fish for or catch and retain a species of fish referred to in an item of

Schedule 1 in waters referred to in that item using the gear or method referred to in that item during the close time set out for that item. 28. No person shall engage in sport fishing, other than by angling, for (

a) Atlantic salmon and ouananiche; ... 31.

(1) Except as set out in

Schedule 1, no person shall fish other than by fly fishing in a salmon river referred to in

Schedule 6 or in waters reserved for fly fishing. ... (

D) Aboriginal Communal Fishing Licences Regulations , SOR/93-332:

2. Les définitions qui suivent s’appliquent au présent règlement. … « ministre » En ce qui a trait :

a) à la pêche des poissons et des espèces de poissons mentionnés au paragraphe 3(1) du Règlement de pêche du Québec (1990 ) dans les eaux visées à ce paragraphe, le ministre chargé, dans la province de Québec, de l’application de la

Loi sur la conservation et la mise en valeur de la faune , L.R.Q., ch. C-61.1; a.1 ) à la pêche dans les eaux sans marée de l’Ontario, le ministre des Richesses naturelles de l’Ontario;

b) à toute autre pêche, le ministre des Pêches et des Océans. ( Minister ) « organisation autochtone » S’entend notamment d’une bande indienne, d’un conseil de bande indienne, d’un conseil de tribu et d’une association qui représente une collectivité territoriale autochtone. ( aboriginal organization ) « permis » Permis communautaire délivré en vertu du paragraphe 4(1). ( licence ) … 4.

(1) Le ministre peut délivrer un permis communautaire à une organisation autochtone en vue de l’autoriser à pratiquer la pêche et toute activité connexe.

(2) Le ministre peut désigner dans le permis :

a) les personnes autorisées à pêcher au

titre du permis;

b) les bateaux qui peuvent être utilisés au

titre du permis.

(3) Dans le cas où le ministre ne désigne pas les personnes autorisées à pêcher au

titre du permis, l’organisation autochtone peut les désigner par écrit.

(4) Dans le cas où le ministre ne désigne pas les bateaux qui peuvent être utilisés au

titre du permis, l’organisation autochtone peut les désigner par écrit. 5.

(1) Afin d’assurer une gestion et une surveillance judicieuses des pêches et de voir à la conservation et à la protection du poisson, le ministre peut, sur un permis, indiquer notamment toute condition relative aux points visés aux alinéas 22(1)

b) à z.1 ) du Règlement de pêche (dispositions générales ) et toute condition concernant ce qui suit :

a) les espèces et quantités de poissons qui peuvent être prises ou transportées; ...

j) le type, la grosseur et la quantité des engins de pêche que toute personne désignée peut utiliser; ...

l) l’aliénation du poisson pris en vertu du permis. 7. Il est interdit à quiconque pratique la pêche ou toute activité connexe autorisées en vertu d’un permis de contrevenir ou de déroger aux conditions de ce permis. 2. In these Regulations, “aboriginal organization” includes an Indian band, an Indian band council, a tribal council and an organization that represents a territorially based aboriginal community; ( organisation autochtone ) … “licence” means a communal licence issued under subsection 4(1); ( permis ) “Minister” means, in respect of (

a) fisheries for the fish and species of fish described in subsection 3(1) of the Quebec Fishery Regulations, 1990 , in the waters referred to in that subsection, the Minister responsible in the Province of Quebec for the application of An Act respecting the conservation and development of wildlife , R.S.Q., c. C-61.1, ( a.1 ) fisheries in the non-tidal waters of Ontario, the Minister of Natural Resources for Ontario; and (

b) any other fishery, the Minister of Fisheries and Oceans. ( ministre ) … 4.

(1) The Minister may issue a communal licence to an aboriginal organization to carry on fishing and related activities.

(2) The Minister may designate, in the licence, (

a) the persons who may fish under the authority of the licence, and (

b) the vessels that may be used to fish under the authority of the licence.

(3) If the Minister does not designate the persons who may fish under the authority of the licence, the aboriginal organization may designate, in writing, those persons.

(4) If the Minister does not designate the persons who may fish under the authority of the licence, the aboriginal organization may designate, in writing, those persons. 5.

(1) For the proper management and control of fisheries and the conservation and protection of fish, the Minister may specify in a licence any condition respecting any of the matters set out in paragraphs 22(1) (

b) to ( z.1 ) of the Fishery (General) Regulations and any condition respecting any of the following matters, without restricting the generality of the foregoing: (

a) the species and quantities of fish that are permitted to be taken or transported; … (

j) the type, size and quantity of fishing gear that may be used by a designated person; ... (

l) the disposition of fish caught under the authority of the licence. 7. No person carrying on fishing or any related activity under the authority of a licence shall contravene or fail to comply with any condition of the licence. (

E) Fishery (General) Regulations , SOR/93-53:

(1) Pour une gestion et une surveillance judicieuses des pêches et pour la conservation et la protection du poisson, le ministre peut indiquer sur un permis toute condition compatible avec le présent règlement et avec les règlements énumérés au paragraphe 3(4), notamment une ou plusieurs des conditions concernant ce qui suit : …

b) l’âge, le sexe, l’étape de développement ou la taille des poissons qui peuvent être pris ou transportés;

c) les eaux dans lesquelles la pêche peut être pratiquée; …

f) la période pendant laquelle la pêche peut être pratiquée ou le transport du poisson peut être effectué; …

h) le type et la quantité d’engins et d’équipements de pêche qui peuvent être utilisés et leur grosseur ainsi que la manière dont ils doivent être utilisés; …

r) l’identification et l’étiquetage du poisson permettant de déterminer sa provenance; … 22.

(1) For the proper management and control of fisheries and the conservation and protection of fish, the Minister may specify in a licence any condition that is not inconsistent with these Regulations or any of the Regulations listed in subsection 3(4) and in particular, but not restricting the generality of the foregoing, may specify conditions respecting any of the following matters: … (

b) the age, sex, stage of development or size of fish that are permitted to be taken or transported; (

c) the waters in which fishing is permitted to be carried out; … (

f) the period during which fishing or transporting fish is permitted to be carried out; … (

h) the type, size and quantity of fishing gear and equipment that is permitted to be used and the manner in which it is permitted to be used; … (

r) the marking or tagging of fish for identification of the source of the fish; … (

F) An Act Respecting the Conservation and Development of Wildlife , R.S.Q., c C-61.1: 24.1 .

Dans le but de mieux concilier les nécessités de la conservation et de la gestion de la faune avec les activités des autochtones exercées à des fins alimentaires, rituelles ou sociales, ou de faciliter davantage le développement et la gestion des ressources fauniques par les autochtones, le gouvernement est autorisé à conclure avec toute communauté autochtone représentée par son conseil de bande des ententes portant sur toute matière visée par les chapitres III, IV et VI.Les dispositions de ces ententes prévalent sur celles de la présente loi ou de ses règlements.

Toute communauté, entreprise ou personne visée par une entente n'est cependant exemptée de l'application des dispositions inconciliables de la présente loi ou de ses règlements que dans la mesure où elle respecte l'entente.Les ententes conclues en vertu du présent

article sont déposées à l'Assemblée nationale dans les 15 jours de leur signature si l'Assemblée est en session ou, sinon, dans les 15 jours de la reprise de ses travaux. Elles sont en outre publiées à la Gazette officielle du Québec. 24.1 . The Government is authorized, to better reconcile wildlife conservation and management requirements with the activities pursued by Native people for food, ritual or social purposes, or to further facilitate wildlife resource development and management by Native people, to enter into agreements with any Native community represented by its band council in respect of any matter to which

Chapter III, IV or VI applies. The provisions of the agreements shall prevail over the provisions of this Act or the regulations. However, a community, undertaking or person to whom or which an agreement applies shall be exempted from the application of irreconcilable provisions of this Act and the regulations only insofar as the community, undertaking or person abides by the terms of the agreement. The agreements entered into under this

section shall be tabled before the National Assembly within 15 days of the date on which they are signed if the Assembly is in session, or, if it is not sitting, within 15 days of resumption. They shall also be published in the Gazette officielle du Québec (

G) An Act respeting the Ministère du Conseil exécutif , R.S.Q., c. M-30 : 3.48 . Dans le respect des responsabilités conférées par la présente loi au ministre visé à l'article 3.1 et de celles conférées par la

Loi sur le ministère des Relations internationales (chapitre M-25.1.1 ) au ministre des Relations internationales, le ministre veille à la négociation et s'assure de la mise en oeuvre de toute entente entre le gouvernement, l'un de ses ministères ou l'un de ses organismes et une nation autochtone représentée par l'ensemble des conseils de bande des communautés qui la constituent, une communauté autochtone représentée par son conseil de bande ou par le conseil du village nordique, un regroupement de communautés ainsi représentées ou tout autre regroupement autochtone.

Aux fins de la présente sous-section, est un organisme du gouvernement une personne morale ou un organisme dont le gouvernement ou un ministre nomme la majorité des membres, dont la loi ordonne que les fonctionnaires ou employés soient nommés suivant la

Loi sur la fonction publique (chapitre F-3.1.1 ), ou dont les ressources proviennent, pour plus de la moitié, du fonds consolidé du revenu. 3.48 . With due regard for the responsibilities conferred by this Act on the Minister referred to in

section 3.1 and for those conferred on the Minister of International Relations by the Act respecting the Ministère des Relations internationales (chapter M-25.1.1 ), the Minister shall oversee the negotiation of every agreement between the Government or any of its departments or agencies and a Native nation represented by the band councils of all the communities forming the Native nation, a Native community represented by its band council or by its council in the case of a Northern village, a group of communities so represented or any other Native group, and shall ensure that the agreement is implemented.

For the purposes of this subdivision, a legal person or agency to which the Government or a minister appoints the majority of the members, to which, by law, the officers or employees are appointed in accordance with the Public Service Act (chapter F-3.1.1 ) or more than half of whose resources are derived from the consolidated revenue fund is an agency of the Government.

REASONS OF THE CHIEF JUSTICE [72] I am in substantial agreement with my colleague Hilton J.A., save with respect to the charges of unauthorized fishing brought by the Attorney General of Canada and those ofunlicensed fishing brought by the Attorney General of Quebec. [73] Here is why. [74] The provisions under which the appellants are charged are not those being challenged, nor even are those that would have enabled the appellants to obtain a licence in order to avoidbeing charged (the provisions of the Aboriginal Communal Fishing Licences Regulation,[43] the "A.C.F.L.R."). [75] For the purpose of the latter regulation, the expression "aboriginal organization" can refer to an Indian Band, an Indian Band Council, a Tribal Council, or an association representinga territorial aboriginal community, among others.

That is not the source of the difficulty encountered here. [76] The problem lies in another statute. [77] According to the appellants, the minister empowered to issue aboriginal communal fishing licences for Quebec – that is, the Quebec Minister of Natural Resources and Wildlife –applies the criteria set out in

section 24.1 of the Act Respecting the Conservation and Development of Wildlife[44] (the "A.R.C.D.W.") when so doing. [78]

Section 24.1 of that Act, however, draws a distinction between aboriginal persons who are represented by a Band Council and those who are not. [79] The appellants allege that they have applied to the Minister on several occasions for a communal fishing licence, without success.

They also allege that the only licences that haveever been issued were granted to aboriginal persons represented by a Band Council. [80] If the appellants are correct, it means that, from the very outset, they had no opportunity at all to obtain a communal fishing licence, because of potentially discriminatory reasons. [81] I find it appropriate, at this point, to quote McLachlin and Bastarache JJ., writing for the majority in Corbière v.

Canada (Minister of Indian and Northern Affairs): Other factors identified in the cases as associated with the enumerated and analogous grounds, like the fact that the decision adversely impacts on a discrete and insular minority or a groupthat has been historically discriminated against, may be seen to flow from the central concept of immutable or constructively immutable personal characteristics, which too often have servedas illegitimate and demeaning proxies for merit-based decision making.[45] [82] In a concurring opinion, L'Heureux-Dubé J. adds: Also critical is the fact that as discussed below during the third stage of analysis, band members living off-reserve have generally experienced disadvantage, stereotyping, and prejudice, andform part of a “discrete and insular minority” defined by race and place of residence. ...

I note that in making this determination, I make no findings about “residence” as an analogous ground in contexts other than as it affects band members who do not live on the reserve of theband to which they belong.[46] [83] In this file, after explaining why he was refusing to suspend the trial pending a Superior Court judgment on the Motion for declaratory judgment filed by the appellants after theywere charged, the trial judge stated that the judgment on that Motion could have no effect on the outcome of the present proceedings and that therefor

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