R. v. Bloom, 2016 ONCJ 8

CITATION: R. v. Bloom , 2016 ONCJ 8 ONTARIO COURT OF JUSTICE Old City Hall – Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — GREGORY BLOOM ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) J. Hurst For the Respondent Appellant/Self-Represented Heard: July 21 and October 5, 2015 REASONS for JUDGEMENT ( Provincial Offences Act Appeal) MELVYN GREEN, J.: A.

INTRODUCTION [ 1 ] This case is one of many that illustrate, if here in miniature, the continuing tension between federal and provincial governments and First Nations peoples respecting the latters’ claims to meaningful recognition of their “rights” to sovereignty, self- governance and self-determination. The Appellant’s principal argument is not framed in these momentous terms, but the animating sentiments and frustrations are clearly fuelled by the same values and aspirations. [ 2 ] Gregory Bloom is the Appellant. He is a self-styled “North Americ a Signatory Indian”.

He purports to speak on behalf of the Mohawks of Grand River. [ 3 ] The Appellant was pulled over by a member of the Toronto Police Service while driving a Ford pickup at the intersection of Kingston Road and Scarborough Golf Club Road in the City of Toronto on May 22, 2011. The ensuing police investigation led to a number of charges under the provincial Highway Traffic Act (the HTA ), R.S.O. 1990, c. H.8: no displayed plate validation, driving without a validated permit, failure to surrender motor vehicle permit, and driving while suspended.

He was also charged with driving a motor vehicle without insurance contrary to the provincial Compulsory Automobile Insurance Act (the CAIA ), R.S.O. 1990, c. C.25. [ 4 ] Only two witnesses testified at trial: the investigating officer and the Appellant. The latter’s evidence, like much of his final submissions, focused on his assertion that Aboriginal persons are not bound by provincial laws. As fairly summarized by the presiding

justice of the peace, the Appellant’s position was simply that, “the Province of Ontario has absolutely no jurisdiction over Indians”. Inthe end, the presiding justice of the peace accepted the evidence of the investigating officer and rejected the Appellant’s claims tojurisdictional immunity. Accordingly, he found the Appellant guilty of all charges. Fines totaling $6,170 followed. [5] The Appellant filed an appeal against his convictions and sentence. His argument on appeal to this Court, pursuant to theProvincial Offences Act, R.S.O. 1990, c.

P.33, is essentially the same as that advanced below: history, equity, treaty-protected andconstitutionally enshrined rights and a proper (if, as it transpires, highly selective) reading of the relevant jurisprudence insulate “Indians”from the application of provincial legislation and, more specifically, the HTA and CAIA. Accordingly, says the Appellant, hisconvictions must be set aside. No independent basis for an appeal against sentence is advanced. [6] To be clear, the Appellant’s position is extravagant. It is, at best, only loosely tethered to the law that governs the dispositionof such claims.

It ignores many years of settled jurisprudence. It is unsupported by an evidentiary record respecting the conduct at issue– driving a motorized vehicle on a publically regulated highway – and the nexus, if any, of that conduct to treaty, territory, culturalantecedents or an alternative regulatory regime promulgated by band council or other Aboriginal authority. [7] The Appellant is self-represented. He has expended considerable energy on the preparation for and conduct of both his trialand this appeal.

While further levels of review may well be available, I fear that the Appellant, while certainly no fool himself, isembarked on a fool’s errand. Further, it is one at odds with the spirit of a time that favours sincere efforts at conciliation andreconciliation over doctrinal confrontation and adversarialism. Many meritorious First Nations claims await careful consideration by wayof negotiation or adjudication. The Appellant’s, as currently framed and supported, is not one of them. B.

ANALYSIS [8] The rights of Canadian Aboriginal persons were not constitutionally entrenched until the advent of the Constitution Act, 1982.As heralded by 35(1): The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. It would be difficult to overestimate the importance of this pronouncement. However, a proclamation of rights, even if constitutionallyimplanted, is far from self-actualizing. Among the many questions raised (and still not fully answered) is that of what “rights” (and, inparticular, political rights) it is that are “recognized and affirmed”.

A second pertains to whether these “rights”, whatever their content,have precedence over state claims in contested domains or whether they are to be harmonized with the authority asserted by Canada andthe provinces in which Aboriginal persons reside. This inevitably invites a third question: the process, analytical and practical, by whichcompeting claims are to be resolved. Needless to say, s. 35(1) has launched a raft of litigation dedicated to answering these and manyassociated inquiries. [9] R. v.

Sparrow, (SCC), [1990] 1 S.C.R 1075 was the first of a series of cases in which the Supreme Courtconstrued the meaning and scope of s. 35. The Court there determined, at para. 62, that Aboriginal rights remained subordinate to thelegislative authority of Canada: “federal legislative powers continue, including the right to legislate with respect to Indians”.

However,with constitutionalization the exercise of these powers must be read alongside s. 35(1). “In other words,” the Court continued, “federalpower must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of anygovernment regulation that infringes upon or denies aboriginal rights”. As later explained in Delgamuukw v.

British Columbia, (SCC), [1997] 3 S.C.R. 1010, at para. 28, Subsequent to s. 35(1) aboriginal rights cannot be extinguished and can only be regulated or infringed consistent with the justificatorytest laid out by this Court in Sparrow, supra. (See also Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 , [2014] 2 S.C.R. 257, at paras. 118-125.) [10] This approach has been both reinforced and refined in several landmark s. 35(1) judgements that followed Sparrow, mostfamously the 1996 “trilogy” (R. v. Van der Peet, (SCC), [1996] 2 S.C.R. 507, R. v. N.T.C. Smokehouse Ltd., (SCC), [1996] 2 S.C.R. 672 and R. v.

Gladstone, (SCC), [1996] 2 S.C.R. 723) and, a year later,Delgamuukw v. British Columbia, supra. In Van der Peet, at para. 31, the Supreme Court defined the purpose of s. 35(1) as “thereconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown”.

In Delgamuukw, at para. 186, then ChiefJustice Lamer affirmed this expression of the provision’s “basic purpose”, encouraged Canadians to engage in good faith negotiations toachieve such “reconciliation”, and somewhat more colloquially added: “Let us face it, we are all here to stay”. [11] These final words achieved a meme-like status in the critical commentary that followed Delgamuukw. Professor Michael Aschincorporates them into the title of his recent book, On Being Here to Stay: Treaties and Aboriginal Rights in Canada, Toronto:University of Toronto Press, 2014.

He argues, at p. 11, that the Van der Peet and Delgamuukw formulation of the purpose of s. 35(1)“prejudices the outcome” of any prospect of good faith negotiations because, … in this formulation the fundamental matter, “the sovereignty of the Crown” … is not to be questioned.

As a result, what at first blushreads as an open-ended process becomes one based on this singular pre-condition: the agreement on the part of Indigenous peoples thatthe scope of their political rights, and in particular their right to self-determination, is circumscribed by the fact that, at the end of the day,whatever rights they may have are subordinate to the legislative authority of the Canadian state. [12] As Professor Asch later asks, at p. 32: “If”, as the Supreme Court repeatedly affirms in the above-mentioned cases,“Indigenous peoples had legitimate sovereignty when Europeans first arrived, how did the Crown legitimately acquire it?” The samequestion, although expressed somewhat differently, informs much of the Appellant’s patent sense of grievance.

His answer iscategorical: the Crown’s assumption of sovereignty is an illegitimate act of arrogation perpetrated in defiance of principle, treaty, papalbull and royal proclamation, compounded by systemic bad faith dealings with the Indigenous peoples of what is now Canada, and

rationalized by a Supreme Court for which “reconciliation” is little more than aspirational rhetoric. The Appellant’s development of thisargument misses few if any stations of Western legal thought, especially those bearing, however tangentially, on the rights of thepre-“contact” inhabitants of North America.

This grand tour includes, by way of example only, such essential touchstones as the MagnaCarta (1215), the Sublimus Dei of Pope Paul III (1537), the Treaty of Utrecht (1713), the Royal Proclamation (1763), the Jay Treaty(1794) the Universal Declaration of Human Rights (1948) and, of course, Canada’s founding constitutional document, the British NorthAmerica Act (now, along with the Charter, the Constitution Act, 1982). [13] A fresh sensitivity to the controversial nature of the presumption of Crown sovereignty embedded in Lamer C.J.C’sformulation can be detected in several Supreme Court judgements subsequent to Delgamuukw.

For example, in Taku River Tlingsit FirstNation v. B.C. (Project Assessment Director), 2004 SCC 74 , [2004] 3 S.C.R. 550, Chief Justice McLachlin offered, at para. 42,a modest but arguably significant rephrasing: “The purpose of s. 35(1) of the Constitution Act, 1982”, she wrote, “is to facilitate theultimate reconciliation of prior aboriginal occupation with de facto Crown sovereignty”. A similar qualification of the foundation forCrown authority appears in Haida Nation v.

B.C. (Minister of Forests), 2004 SCC 73 , [2004] 3 S.C.R. 511, where, among othernuanced language, the Court refers, at para. 26, to the “reality of Crown sovereignty” and, at para. 32, to “the Crown’s assertion ofsovereignty”. [14] Nonetheless, as said, in Delgamuukw, at para. 177, “the vires of federal legislation with respect to Indians, under the division ofpowers, has never been at issue”.

The question the Supreme Court has more frequently been asked to address is, as put in the sameparagraph, “whether provincial laws which on their face apply to Indians intrude on federal jurisdiction and are inapplicable to Indians tothe extent of that intrusion”. (With respect to claims of jurisdictional dispute and the methodologies of their resolution, see the discussionof the doctrines of double aspect, paramountcy and interjurisdictional immunity in Tsilhqot’in Nation v.

British Columbia, supra, atparas. 128-152.) [15] The Appellant, as noted, shares Professor Asch’s concern respecting Crown assertions of sovereignty. They are hardly alone inthis regard. Professor Bradford Morse, for one example, addresses the issue, if only in passing, in “Aboriginal and Treaty Rights inCanada”, (2013), 62 Supreme Court Law Review (2d) 569, at para. 51, when he notes, [how] surprisingly little discussion [there is] in Canadian jurisprudence as to how [British Crown] sovereignty was in fact achieved; yetthere seems to be a general consensus among judges that it somehow happened.

Other academics have expressed similar consternation, ranging from Brian Slattery (“Understanding Aboriginal Rights” (1987), 66 Can.Bar. Rev. 727, at 735-736) to Anthony Hill (Earth into Property: Colonization, Decolonization, and Capitalism, Montreal and Kingston:McGill-Queens University Press, 2010).

However, one must be careful to recall that despite his grandiloquent critique the Appellant’sprimary focus, his defence at trial and the exclusive basis of his appeal in this Court turns not on the genesis or legitimacy of Crownassertions of sovereignty or the limitations of federal powers under the British North America Act (BNA Act) but, rather, on his claim thatOntario, qua “Province”, has no authority to legislate the conduct of Aboriginal persons – and thus he, as an Aboriginal person, is notbound by provincial statutes, including the HTA and the CAIA under which he was charged and convicted. [16] The earlier-noted reference in Delgamuukw to “division of powers” alludes by legal shorthand to the distribution of legislativeauthority between the “Parliament of Canada” and the “Legislatures of the Provinces”, as prescribed by the BNA Act.

Section 91 of theAct and, in particular, clause 24, assigns legislative powers respecting “Indians” to the federal Parliament: It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace,Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assignedexclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Termsof this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament ofCanada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, - 24.

Indians and Lands reserved for the Indians. Almost needless to say, the assignment of “Indians” to “the exclusive Legislative Authority of the Parliament of Canada” has generatedseveral lengthy and turbulent streams of litigative debate. One directly germane to the immediate appeal pertains to the effect, if any, ofprovincial statutes and regulations on Aboriginal peoples within that province. [17] In Delgamuukw, at para. 177, the Supreme Court re-affirmed that s. 91(24) “protects a ‘core’ of Indianness from provincialintrusion”.

This core, as explained at para. 178: … falls within the scope of federal jurisdiction over Indians. [It] … encompasses aboriginal rights, including the rights that arerecognized and affirmed by s. 35(1). Laws which purport to extinguish those rights therefore touch the core of Indianness which lies atthe heart of s. 91(24), and are beyond the legislative competence of the provinces to enact. The core of Indianness encompasses thewhole range of aboriginal rights that are protected by s. 35(1).

Those rights include rights in relation to land … [b]ut those rights alsoencompass practices, customs and traditions which are not tied to land as well …. Provincial governments are prevented from legislatingin relation to both types of aboriginal rights. [18] The content of the “core” elements have proven controversial and subject to continuing refinement.

What is settled, however, isthat provincial laws of universal application that do not trespass this core – that do not intrude on treaty, territorial or otherconstitutionally protected Aboriginal rights or the practices and customs sheltered by them – are as binding on Indigenous persons as anyother inhabitants of the province. As said in Delgamuukw, at para. 179, in answer, if comfortless, to the Appellant’s claim: The vesting of exclusive jurisdiction with the federal government over Indians and Indian lands under s. 91(24), operates to precludeprovincial laws in relation to those matters.

Thus, provincial laws which single out Indians for special treatment are ultra vires, becausethey are in relation to Indians and therefore invade federal jurisdiction … . However, it is a well-established principle that …notwithstanding s. 91(24), provincial laws of general application apply proprio vigore to Indians and Indian lands. Thus, this Court hasheld that provincial labour relations legislation and motor vehicle laws, which purport to apply to all persons in the province, also apply

to Indians living on reserves. [Citations omitted.

Underscoring added.] Stripped of Latin legalisms and restated, “the well-established principle” is that provincial laws that apply generally to persons in aprovince (including, as here pertinent, provincial legislation governing the operation of motor vehicles on public roadways) apply withfull and equal force to Indigenous persons within that province. [19] Still and inevitably, there are occasions (indeed, many) when provincial laws of purported general application are alleged toconflict with the “existing aboriginal and treaty rights of the aboriginal peoples” shielded by s. 35(1).

The authoritative formula forrecognition of such rights, as prescribed in Van der Peet, at para. 46, is one wherein rights that warrant the constitutional protectionafforded by s. 35(1) depends on a First Nation establishing that the activity or conduct at issue was an “element of a practice, custom ortradition integral to the distinctive culture of the Aboriginal group claiming the right”.

Further, as said at paras. 60-62: The time period that a court should consider in identifying whether the right claimed meets the standard of being integral to theaboriginal community claiming the right is the period prior to contact between aboriginal and European societies. … [I]t is to that pre-contact period that the courts must look in identifying aboriginal rights. … As such, the relevant time period is the period prior to the arrival of Europeans, not the period prior to the assertion of sovereignty bythe Crown. … It is those [pre-contact] practices, customs and traditions that can be rooted in the pre-contact societies of the aboriginal community inquestion that will constitute aboriginal rights. [20] Although an already difficult hurdle to crest, the Supreme Court’s decision in Mitchell v.

M.N.R., 2001 SCC 33 ,[2001] 1 S.C.R. 911, through its language of “core identity” and “defining feature”, is often read as further raising the bar. As there saidby McLachlin C.J.C., at para. 12: In the seminal cases of R. v. Van der Peet, and Delgamuukw, this Court … set out the test for establishing an aboriginal right. Since s.35(1) is aimed at reconciling the prior occupation of North America by aboriginal societies with the Crown’s assertion of sovereignty,the test for establishing an aboriginal right focuses on identifying the integral, defining features of those societies.

Stripped to essentials,an aboriginal claimant must prove a modern practice, tradition or custom that has a reasonable degree of continuity with the practices,traditions or customs that existed prior to contact. The practice, custom or tradition must have been “integral to the distinctive culture” ofthe aboriginal peoples, in the sense that it distinguished or characterized their traditional culture and lay at the core of the peoples’identity.

It must be a “defining feature” of the aboriginal society, such that the culture would be “fundamentally altered” without it. [Emphasis added.] [21] Unsurprisingly, the narrow circumscription of the test for exemption from, as here relevant, provincial legislation and itsarguably pinched application in practice has attracted extensive criticism, particularly with respect to the static or diorama-like lens itapplies to living communities that have not only endured centuries of colonialism but whose cultural survival has depended on adaptingto the dispossession, oppression and alienation flowing from this historical trauma. [22] The “integral to the distinctive culture” test has been aptly characterized by Professor John Borrows as a “frozen rights”approach to constitutional acknowledgement of the interests protected by s. 35(1) (“Frozen Rights in Canada: ConstitutionalInterpretation and the Trickster” (1997), 22 American Indian Law Review 37).

Other leading scholars have been no more charitable. (See,for example, the many academic authorities cited by the majority in R. v. Sappier; R. v. Gray, 2006 SCC 54 , [2006] 2 S.C.R.686 and by Professor Kent McNeil in “The Jurisdiction of Inherent Right Aboriginal Governments”, Research Paper for the NationalCentre for First Nations Governance, October 11, 2007, at fn. 39 and 40.) [23] There has been some relaxation, or at least clarification, of the reductionism inherent in the Van der Peet test following itscritical academic reception. For example, in R. v. Sappier; R. v.

Gray, supra, Bastarache J. cautioned, at para. 41, that the, … notion [advanced in Mitchell v. M.N.R., supra] that the pre-contact practice must be a ‘defining feature’ of the aboriginal society, suchthat the culture would be ‘fundamentally altered’ without it, has also served in some cases to create artificial barriers to the recognitionand affirmation of aboriginal rights. “[W]e must discard the idea”, he continued, at para. 46, “that the practice must go to the core of a people’s culture”.

And, further, atpara. 69: [T]he established jurisprudence of this Court … has consistently held that ancestral rights may find modern form. … If aboriginal rightsare not permitted to evolve and take modern forms, then they will become utterly useless. … The cultures of the aboriginal peoples whooccupied the lands now forming Canada prior to the arrival of the Europeans, and who did so while living in organized societies withtheir own distinctive ways of life, cannot be reduced to wigwams, baskets and canoes. [24] A conspicuous feature of many in this braid of cases is the animated dialogue they track between the Supreme Court and acommunity of academics respecting the “correct” approach to s. 35(1).

Precedent and settled rule carry particularly weighty authoritywhere, as in the case of s. 35(1), the provision at issue is effectively an empty vessel the contents of which have entirely been filled bythe Supreme Court’s own judgements. (See A. Walkem and H. Bruce (Eds.), Box of Treasures or Empty Box? Twenty Years of Section35, Penticton, B.C.: Theytus, 2003.) Nonetheless, the contributions of legal scholars have palpably influenced jurisprudentialdevelopment in this area of the law. The academic critique has performed an unusually effective advocacy role, and one the Appellantundoubtedly supports.

However, it is the courts, and particularly the Supreme Court, that ultimately pronounce the law that binds notonly the Appellant but, of course, all lower level courts, including the one I occupy. While there have been some modest modifications inits formulation, the rule that “provincial laws of general application apply proprio vigore to Indians” remains fundamentally undisturbed.As recently said by the Chief Justice on behalf of a unanimous Supreme Court in Tsilhqot’in Nation v. British Columbia, supra, at para.150,

Consistent with the statements in Sparrow and Delgamuukw, provincial regulation of general application will apply to exercises ofAboriginal rights … subject to the s. 35 infringement and justification framework. And as First Nations advocates have to come to appreciate, carving out islets of protection from the rule of general application throughresort to s. 35 can prove a daunting and often frustrating task.

The relevant Supreme Court decisions not only illustrate the arguablynarrow compass of entitlement afforded by s. 35(1) but, as I ultimately hold, are also determinative, and fatally so, of the instant appeal. [25] Before turning to the directly relevant caselaw, I note that, in my view, the activity in question (that of driving a motor vehicleon a public highway) is far too functionally remote from canoeing on navigable waterways (the historical analogy proposed by theAppellant’) to render it a traditional course of conduct within the “integral to the distinctive culture” test that remains the governingstandard.

In any event, no evidence was tendered at trial in support of a corresponding historical practice or, for that matter, of claims toterritorial entitlement that the Appellant sometimes conflates with arguments premised on the division of legislative powers delineated inthe BNA Act. The Appellant advises that his band council has not passed regulations governing driving. In any event, the Appellant’simpugned driving did not take place on a reserve.

While the Appellant asserts, when pressed, that the offences of which he was convictedoccurred on unceded territory that properly belongs to the Mohawk Nation, no evidence was tendered in support of this claim. Indeed,disputes respecting the integrity or validity of the “Toronto Purchase” (the expanse of which appears to encompass the location of theAppellant’s offences) were “settled” in 2010, bringing closure to longstanding adverse First Nations territorial claims in this regard:http://news.gc.ca/web/article-en.do?nid=569689.

However, on the record before me and upon application of the appropriate legal testand precedents, the result in this case would in my view be the same even if the conduct at issue – driving a motor vehicle on a publicroadway – occurred on a reserve or land otherwise subject to Aboriginal title. [26] In R. v. Francis, (SCC), [1988] 1 S.C.R. 1025, the Supreme Court dealt with an appeal from a convictionunder the New Brunswick Motor Vehicle Act, R.S.N.B. 1973, c. M-17.

The offending driving occurred on an “Indian reserve” that wassubject to its own driving regulations (the Indian Reserve Traffic Regulations, C.R.C. 1978, c. 959) passed pursuant to federal legislation,the Indian Act, R.S.C. 1970, c. I-6. On behalf of the Court, LaForest, J., at para. 3, made clear that, as in the appeal before me, “theessential issue involves the application of provincial law”.

The Court’s following paragraph is dispositive of the instant appeal: [I]n the absence of conflicting federal legislation, provincial motor vehicle laws of general application apply ex proprio vigore on Indianreserves. … In Kruger v. The Queen, (SCC), [1978] 1 S.C.R. 104, this Court held that general provincial legislationrelating to hunting applies on reserves, a matter which is obviously far more closely related to the Indian way of life than driving motorvehicles. Indeed Beetz J., speaking for the Court in Dick v.

The Queen, (SCC), [1985] 2 S.C.R. 309, at p. 326, expresslystated that provincial traffic legislation applies to Indians without touching their Indianness. [27] Although here analytically unnecessary, merely re-asserting the rule respecting the scope of provincial laws of generalapplication did not end the inquiry in Francis: the alleged inconsistency between the provincial traffic regime and the federallyauthorized driving regulations that obtained on the appellant’s reserve still needed to be addressed.

Applying the doctrine ofparamountcy, the Court ultimately concluded that the provincial Motor Vehicle Act was “constitutionally applicable to the regulation andcontrol of the operation of motor vehicles on an Indian Reserve”, and confirmed the appellant’s conviction.

Given that the matter beforeme involves driving-related conduct that occurred neither on a reserve nor on territory subject to a federal regulatory regime respectingthe operation of motor vehicles, the Court’s final determination in Francis, although gratuitous to my determination of this appeal, canonly compound the futility of the Appellant’s quest. Nor do subsequent cases afford him any relief as the Supreme Court has repeatedlyre-affirmed the rationale in Francis.

As earlier quoted from the Supreme Court’s judgement in Delgamuukw, citing Francis, at para. 179: … notwithstanding s. 91(24), provincial laws of general application apply proprio vigore to Indians and Indian lands. Thus, this Courthas held that provincial … motor vehicle laws, which purport to apply to all persons in the province, also apply to Indians living onreserves. (See also: Paul v.

British Columbia (Forest Appeals Commission), 2003 SCC 55 , [2003] 2 S.C.R. 585, at para. 33 and R. v.Morris, 2006 SCC 59 , [2006] 2 S.C.R. 915, at para. 85.) [28] The breadth of the Appellant’s historical canvas and his reliance on bald assertions of elevated legal principle cause me tobelieve that his real grievance is not so much that Ontario has acted ultra vires as it is that he, as a member of Canada’s first peoples, isbound by laws made by colonial powers – whatever their level of legislative authority.

For the Appellant, the reconciliative promise of s.35(1) has not been fulfilled; his community’s “rights” to self-governance and self-determination have not been honoured. TheAppellant’s base complaint is one that resonates through much of the fraught relations between First Nations and Canadian governments.It is not without substance. [29] Ultimately, the Appellant’s argument rests on a tendentiously literalist

interpretation of the BNA Act’s division of powers, andone that effectively ignores the wealth of appellate jurisprudence devoted to the meaning and practical application of s. 91(24). Even onhis selective reading, judicial construction of Canada’s constitutional architecture offers the Appellant no other arguable shelter than thatadvanced through his claimed immunity to provincial legislation. In the end, however, that is no shelter at all. Focusing solely on thenarrow issue that bottoms this appeal, the Appellant’s position is without legal merit. [30] In R. v.

Van der Peet, supra, at para. 50, the Supreme Court spoke of reconciliation under s. 35(1) that “will, equally, placeweight on” Aboriginal and common law perspectives. However, this exercise, as qualified at para. 49, “must be framed in termscognizable to the Canadian legal and constitutional structure”. Or, as slightly recast in Delgamuukw, at para. 82: the “accommodationmust be done in a manner which does not strain ‘the Canadian legal and constitutional structure’”. R. v.

Pamajewon, (SCC), [1996] 2 S.C.R. 821 is sometimes advanced as an exemplar of this legal and constitutional restraint. (See, for example, AndréeBoiselle, “To Dignity Through the Back Door: Tsilhqot’in and the Aboriginal Title Test” (2015), Supreme Court Law Review 27, at 29.) [31] R. v. Pamajewon was released (if only coincidentally) the day after Van der Peet was handed down.

In brief, two OntarioAnishnabe or Ojibwa First Nations claimed a right, rooted in s. 35(1) of the Constitution, to self-government respecting the use andmanagement of their lands, a right that included, in particular, the regulation of organized gambling on their reserves. This right, they

argued, protected the individual appellants from the gambling-related offences of which they were convicted at trial. The case is notable for several here salient reasons. First, the majority of the Supreme Court, at para. 27, characterized the two bands’ claims to a right to self-government as pitched “at a level of excessive generality”. The “correct characterization”, said the Court at para. 26, was that of “claiming the right to participate in, and to regulate, high stakes gambling activities on the reservation”.

So defined, the Court moved on to apply the “integral to the distinctive culture” branch of the Van der Peet test, a matter more directly germane to the instant appeal. There was evidence led of the importance of gambling to the pre-contact Ojibwa culture. However, that evidence, said the Court at para. 28, did “not demonstrate that gambling was of central significance to the Ojibwas people” or “the extent to which [it] was the subject of regulation by the Ojibwa community” at the time they first came into contact with Europeans – roughly 350 years before their case was perfected.

In dismissing the appeals, the majority concluded, at para. 30: Given this evidentiary record, it is clear that the appellants have failed to demonstrate that the gambling activities in which they were engaged, and their respective bands’ regulation of those activities, took place pursuant to an aboriginal right recognized and affirmed by s. 35(1) of the Constitution Act, 1982 . [ 32 ] The Appellant has at least equally and clearly failed to demonstrate that his driving-related activities took place pursuant to any right recognized by s. 35(1) .

While the breadth of s. 35(1) remains a work in progress, it is long settled that the provision does not include a right that insulates First Nations automobile drivers from the reach of a provinces’ motor vehicle legislation. As said by the Supreme Court in Paul v. B.C., supra , at para. 33 : The “core” of Indianness has not been exhaustively defined. It encompasses the whole range of aboriginal rights that are protected by s. 35(1) . For present purposes, it is perhaps more easily defined negatively than positively.

The core has been held not to include … highway traffic regulation on reserves. [Citations omitted.] A fortiori , driving a motor vehicle off-reserve, on a public road, can have no greater claim to s. 35(1) protection from, as here, provincial laws of general application. C. CONCLUSION [ 33 ] I am satisfied that the presiding justice’s reasons for conviction are free of reversible error. Accordingly and for the reasons set out above, the appeal is dismissed. Released on January 6, 2016 __________________________ Justice Melvyn Green