R. v. Reynolds, 2017 NBCA 36

COURT OF APPEAL OF NEW BRUNSWICK COUR D’APPEL DU NOUVEAU-BRUNSWICK 5-16-CA HER MAJESTY THE QUEEN APPELLANT SA MAJESTÉ LA REINE APPELANTE - and - - et - MICHAEL PAUL REYNOLDS RESPONDENT MICHAEL PAUL REYNOLDS INTIMÉ R. v. Reynolds, 2017 NBCA 36 R. c.

Reynolds, 2017 NBCA 36 CORAM: The Honourable Justice Richard The Honourable Justice Green The Honourable Justice French CORAM : l’honorable juge Richard l’honorable juge Green l’honorable juge French Appeal from a decision of the Court of Queen’s Bench: January 22, 2016 Appel d’une décision de la Cour du Banc de la Reine : le 22 janvier 2016 History of case: Decision under appeal: 2016 NBQB 18 Preliminary or incidental proceedings: Historique de la cause : Décision frappée d’appel : 2016 NBBR 18 Procédures préliminaires ou accessoires : Appeal heard: June 16 and 20, 2016 Appel entendu : les 16 et 17 juin 2016

Judgment rendered: August 31, 2017 Reasons for judgment by: The Honourable Justice French Concurred in by: The Honourable Justice Richard The Honourable Justice Green Jugement rendu : le 31 août 2017 Motifs de jugement : l’honorable juge French Souscrivent aux motifs : l’honorable juge Richard l’honorable juge Green Counsel at hearing: For the appellant: William B. Richards and Kathryn Gregory For the respondent: Maria Henheffer, Q.C. and Elaina Campbell THE COURT The application for leave to appeal is allowed, butthe appeal is dismissed. Avocats à l’audience : Pour l’appelante : William B.

Richards et Kathryn Gregory Pour l’intimé : Maria Henheffer, c.r., et Elaina Campbell LA COUR La demande en autorisation d’appel est accueillie,mais l’appel est rejeté. The judgment of the Court was delivered by FRENCH, J.A. I. Introduction and Background [1] The Crown appeals a decision staying charges laid against Michael Paul Reynolds under the Fish and WildlifeAct, S.N.B. 1980, c. F-14.1 (the “Act”). In 2012, he killed a moose and traded its meat to Addison Knox for a car. Mr.

Reynolds, anAboriginal person, is admitted by the Crown to be a beneficiary under a treaty of February 1760 and, as a consequence, to possess a rightto hunt and trade, as was determined by the Supreme Court in R. v. Marshall, (SCC), [1999] 3 S.C.R. 456, [1999]S.C.J. No. 55 (QL). The 1760 Treaty is recognized and affirmed by s. 35 of the Constitution Act, 1982. [2] Mr. Knox, a non-Aboriginal, was charged with unlawfully trading moose meat, contrary to s. 51(1)(

a) of the

Act, and unlawfully possessing moose meat, contrary to s. 58. Mr. Knox did not have a Transfer Permit, authorizing the possession of themeat received from Mr. Reynolds, and he pled guilty to both offences. A Transfer Permit, issued by the Minister of Energy and ResourceDevelopment pursuant to the discretion afforded the Minister under s. 91(2) of the Act, allows the holder to possess moose meat (or otherwildlife) lawfully killed/harvested by another person. [3] Mr. Reynolds was also charged under the Act but, unlike Mr.

Knox, he was not charged directly with eitherunlawfully trading moose meat, under s. 51(1)(a), or unlawfully possessing moose meat, under s. 58. Rather, Mr. Reynolds was chargedas an accessory to the offences committed by Mr. Knox. The Crown relies on s. 94 of the Provincial Offences Procedure Act, S.N.B.1987, c. P-22.1, which provides that an accessory to an offence may be charged with the offence. [4] The Crown’s initial position was that Mr.

Reynolds’ treaty rights did not afford him a defence to the charges.The Crown maintained that the 1760 Treaty conferred the right to trade with non-Aboriginals, but only in circumstances where it islawful for the non-Aboriginal to acquire the product of the trade – in this case, moose.

It was also the Crown’s position that since Mr.Reynolds was being prosecuted as an accessory, any infringement of his treaty rights (which it denies) was merely incidental to theenforcement of the Act in connection with the offence committed by a non-Aboriginal and, as a result, the Crown did not bear the burdenof establishing that the infringement constituted a “justifiable” restriction/limitation under the test for justification of a constitutionallyprotected treaty right, as articulated by the Supreme Court in R. v. Sparrow, (SCC), [1990] 1 S.C.R. 1075, [1990] S.C.J.No. 49 (QL), and R. v.

Badger, (SCC), [1996] 1 S.C.R. 771, [1996] S.C.J. No. 39 (QL). [5] Mr. Reynolds’ trial was scheduled for three days in January 2014. A few weeks prior to the trial, it becameapparent the trial could not proceed. Mr. Reynolds advised the court that he had just discovered that Mr. Knox had not simply failed toobtain a Transfer Permit but that he could not have obtained a Transfer Permit. Mr.

Reynolds learned that, pursuant to governmentpolicy, the Minister would not exercise the discretion under s. 91(2) of the Act to issue a Transfer Permit to a non-Aboriginal who wantedto acquire and possess moose meat killed by an Aboriginal.

Almost a decade earlier, on September 25, 2003, the Department of NaturalResources (as it was called at that time) enacted a policy (the “Policy”) which provides that “effective immediately” the Department willnot “be issuing Special Transfer Permits for moose meat harvested by aboriginal hunters” and that, going forward, Transfer Permits mayonly be issued “to persons who have a valid New Brunswick moose hunting license and registration”.

Additionally, the Policy states:“Non-aboriginal persons found in possession of moose meat without a valid registration or transfer permit will face prosecution inaccordance with the New Brunswick Fish and Wildlife Act”. The Policy ended the Minister’s prior practice of issuing Special TransferPermits to allow non-Aboriginals to possess moose acquired from Aboriginals.

On its face, the Policy does not purport to directlyregulate the Aboriginal treaty right to trade in moose; instead, the Policy seeks to prohibit non-Aboriginals from lawfully acquiringmoose meat killed by an Aboriginal. [6] Opposing what he viewed as an end-run around his treaty right to trade as determined by the Supreme Court inMarshall, Mr. Reynolds responded to the Crown’s positions by asserting: (

i) the Crown was seeking to re-litigate the treaty rights which,he submitted, had been clearly determined; (ii) the Policy, by denying the issuance of Transfer Permits to allow non-Aboriginals toacquire moose in a trade with Aboriginals, ended the Aboriginals’ ability to exercise the treaty right to trade; and (iii) the impugnedprovisions of the Act infringed his treaty right to trade, and were unconstitutional, unless the Crown could justify the Act, ascontemplated by the Supreme Court in Sparrow and Badger. It was Mr.

Reynolds’ position the Crown could not possibly justify the Actby effectively ending the treaty right to trade and leaving the non-Aboriginal moose hunt unchanged. [7] Seeking a stay of the charges against him, on the basis they amount to an abuse of process, in view of hisconstitutionally protected treaty right to hunt and trade, Mr. Reynolds filed a Notice of Application and Constitutional Issue (pursuant tothe Rules of the Provincial Court Practice). [8] For the purposes of Mr. Reynolds’ application, the parties presented the Provincial Court judge with anAgreed Statement of Facts and a Book of Exhibits. Mr.

Reynolds admitted the trade with Mr. Knox. The Crown admitted Mr. Reynoldshas a treaty right to hunt and trade that is recognized by s. 35 of the Constitution Act, 1982. Also important factually, the Crown admittedthe trade falls within the scope of Mr. Reynolds’ treaty right, being a trade for “necessaries equivalent to a moderate livelihood”. For anexample of a case where, on the facts, the activities in question fell outside the treaty rights, see: R. v. Polchies et al., 2008 NBCA 1, 325N.B.R. (2d) 262.

However, the Agreed Statement expressly provides the Crown’s admissions are subject to the Crown’s “position onconsultation and agreement with the First Nations in the province”. In practical terms, the Crown admits the trade with Mr. Knox fallswithin the lawful exercise of Mr. Reynolds’ treaty right to trade but for its position that the treaty right does not apply to moose, andtherefore it does not shield him from prosecution. The Crown alleges the First Nations in New Brunswick agreed, at a meeting onSeptember 24, 2003, to forbear the exercise of the treaty right to trade moose with non-Aboriginals.

Alternatively, if its position on theexistence of an agreement is not accepted, the Crown submits that it has consulted with First Nations regarding the implementation of thePolicy, and the application of the Act (pursuant to the 2003 Policy) constitutes a justifiable restriction/limitation on the exercise of the1760 Treaty right to trade. [9] The Crown maintained it would call evidence at trial to support its assertions respecting the existence of an

agreement and/or justification. The Crown denied that the prosecution of Mr. Reynolds was an abuse of process (or even met the threshold for abuse of process) and submitted the application should be dismissed. Mr. Reynolds maintained there was no agreement formed at the meeting on September 24, 2003. He submitted the record before the court evidenced a clear lack of agreement at that meeting and further, even if a consensus had been achieved, the Chiefs lacked the authority to vary the 1760 Treaty rights. Further, Mr.

Reynolds submitted that the Crown could not possibly justify the Act under the test for justification set out in Sparrow and Badger with a policy that effectively denied the ability to trade in moose, while leaving the non-Aboriginal moose hunt unchanged. [ 10 ] The Provincial Court judge considered the entirety of the circumstances surrounding the prosecution of Mr. Reynolds and, concluding the continued prosecution would amount to an abuse of process, stayed the charges. Agreeing with Mr.

Reynolds, he concluded that, in these circumstances, the Crown could not possibly justify the infringement of the treaty right. He found that while the Policy effectively eliminated the treaty right to trade moose with non-Aboriginals, the non-Aboriginal moose hunt and system of Transfer Permits was not similarly affected by the conservation concerns which the Crown submitted were the reasons for implementing the Policy. [ 11 ] The Crown’s appeal to the

Summary Conviction Appeal Court was dismissed. However, the judge did not dismiss the appeal because he accepted the reasons offered by the Provincial Court judge. In fact, he stated he would have allowed the Crown’s appeal – based on what he concluded to be the failure of the Provincial Court judge to give the Crown the opportunity to present evidence in connection with its assertion that, at the meeting on September 24, 2003, the Chiefs of the First Nations in New Brunswick agreed to forbear their treaty right to trade moose with non-Aboriginals.

In his opinion, the dispute of fact regarding the existence of an agreement was a threshold and should have been permitted to go to trial, as was argued by the Crown. He concluded that if the Crown were to prove the existence of an agreement, this would determine the matter, and the issues of stare decisis , re-litigation and justification would be moot. Despite this conclusion, he dismissed the Crown’s appeal. He reasoned that the Provincial Court judge was correct to stay the charges against Mr.

Reynolds because the Provincial Court is not the appropriate forum to determine the complex issues raised in relation to Mr. Reynolds’ treaty rights. Relying on the comments of the Supreme Court in R v. Marshall; R. v. Bernard , 2005 SCC 43 , [2005] 2 S.C.R. 220 , (at paras. 142-144 ) and this Court in Bernard v. R. , 2003 NBCA 55 , 262 N.B.R. (2d) 1 , (at paras. 450-460 of N.B.R.), he concluded the Crown’s assertions gave rise to complex issues of great importance to a large number of persons not before the court and they would be more appropriately addressed in another forum.

It was on this basis that he concluded it was appropriate for the charges to have been stayed by the Provincial Court judge, and he dismissed the Crown’s appeal. [ 12 ] In its appeal to this Court, the Crown submits the

Summary Conviction Appeal Court judge erred in determining a permanent stay of the charges was warranted on the basis the Provincial Court is not the appropriate forum to determine the treaty rights issues that flow from the prosecution. In response to the Crown’s appeal, Mr. Reynolds filed a Notice of Contention, requesting that the appeal be dismissed, and the stay be left undisturbed, for the reasons given by the Provincial Court judge. [ 13 ] It was acknowledged at the hearing before us that the Supreme Court did not direct a permanent stay of charges ( in R. v. Marshall; R. v. Bernard ). Rather, it identified the obvious merits to a temporary stay of

summary conviction charges pending the determination, in another forum, of complex Aboriginal treaty rights issues which involve the interests of a large number of persons not otherwise involved in the

summary conviction proceeding. It was also acknowledged that Mr. Reynolds’ application had not requested a permanent stay of proceedings on this basis but rather it requested, as alternative relief, a temporary stay pending the adjudication of the Crown’s claims in another forum. [ 14 ] For the reasons that follow, I would grant the Crown’s request for leave to appeal but, as sought in the Notice of Contention, I would dismiss the Crown’s appeal of the decision of the

Summary Conviction Appeal judge, largely for the reasons given by the Provincial Court judge. II. Proceedings in Provincial Court and the

Summary Conviction Appeal Court A. The application to Provincial Court [ 15 ] Maintaining that the prosecution of charges under the Act was contrary to his treaty right to trade, Mr. Reynolds applied for a stay of proceedings. In his Notice of Application and Constitutional Issue he claims: 1. That the charges brought against Michael Reynolds are an abuse of process at common law and violate the provisions of:

-

Section 35 of the Constitution Act, 1982 which recognizes and affirms aboriginal treaty rights; -

Section 25 of the Canadian Charter of Rights and Freedoms, which guarantees priority of aboriginal treaty rights; -

Section 7 of the Charter of Rights and Freedoms, relating to life, liberty and security of the person. The Applicant seeks a stay as the appropriate remedy at common law and/or pursuant to

section 24 of the Charter of Rights andFreedoms. 2. Additionally and/or in the alternative that the charges be stayed as an abuse of process on the basis the Crown is attempting to re-litigate the aboriginal treaty right established by the Supreme Court of Canada in R. v. Marshall (SCC), [1999] 3 S.C.R.456, and found to be binding by the New Brunswick Court of Appeal in R. v.

Bernard, 2003 NBCA 55 , 2003 N.B.C.A. 55 para 4 specifically, the aboriginal right: “56. …to continue to obtain necessaries through hunting and fishing by trading the products of those traditional activities subject to therestrictions that can be justified under the Badger test.” (Marshall, para. 56, emphasis in original.) 3. Alternatively, that the charges be stayed pending the Crown obtaining a civil declaration of the Crown’s position on the meaning andregulation of the Marshall treaty right as advanced by the Crown’s proposed expert Dr.

Stephen Patterson, so that all interested parties,including New Brunswick First Nations, may participate in such litigation as instructed by the Supreme Court of Canada in R. v.Marshall; R. v. Bernard

(2005) S.C.C. 43 at paragraph 144[.] [16] At the hearing of the application, there was no viva voce evidence. The judge was provided with an AgreedStatement of Facts and a Book of Exhibits containing a number of documents. In the Agreed Statement of Facts, Mr. Reynolds admitsthe factual elements of the offences and the Crown admits to Mr. Reynolds’ treaty rights. In particular, the Crown’s admissions include: 2. […] Mr. Reynolds is an aboriginal pursuant to

section 35 of the Constitution Act, 1982, being a Maliseet Indian and a member of theWoodstock First Nation. […] may exercise those treaty rights applicable to his aboriginal community including those treaty rightsestablished by the Supreme Court of Canada in R. v. Marshall No.1 and R. v.

Marshall No. 2. […] 5. […] the Defendant is a beneficiary of the Treaty of February 1760, signed between the Saint John’s Indians (present day Maliseet)and the British, which treaty is valid and subsisting today and which treaty includes a trade clause which was the subject of litigation inthe Marshall 1 and Marshall 2 Supreme Court of Canada decisions. 6. […] subject to its position on consultation and agreement with the First Nations in the province, that the transaction described hereinwould fall within the context of “necessaries equivalent to a moderate livelihood”, as described by the Supreme Court of Canadadecisions in Marshall”. […] [Emphasis added.] [17] The Book of Exhibits contained: (1) can-say statements from potential Crown expert witnesses including Dr.Patterson, the Crown’s proposed expert on treaty rights in the Province; (2) documents and correspondence in the possession of theDepartment in relation to the Policy and meetings held between the Minister (and officials) and the Chiefs of various First Nations in theProvince (and disclosed by the Crown to Mr.

Reynolds); and (3) documents from the Province regarding the moose herd and the annualfall moose hunt (obtained by Mr. Reynolds through an access to information request), as well as a 2014 letter which indicates that theMinister issues approximately 6,000 to 7,000 Transfer Permits annually. [18] Notwithstanding the Crown’s admission of Mr. Reynolds’ treaty rights, some knowledge of the nature andscope of those rights and an appreciation of the legal principles applicable to their exercise is essential to an understanding of the analysisundertaken in the decisions below and of the issues raised in this appeal.

As a consequence, before proceeding further, I will brieflyaddress the undisputed law and principles respecting Mr. Reynolds’ treaty rights.

[19] As admitted in the Agreed Statement of Facts, Mr. Reynolds is a Maliseet Indian, a member of the WoodstockFirst Nation and a beneficiary of the 1760 Treaty. Mr. Reynolds may exercise those treaty rights, which include a right to hunt and trade,as described by the Supreme Court in R. v. Marshall, (SCC), [1999] 3 S.C.R. 456, [1999] S.C.J. No. 55 (QL), and R. v.Marshall, (SCC), [1999] 3 S.C.R. 533, [1999] S.C.J. No. 66 (QL) (for this Court’s recognition of the treaty rights, see:Bernard v. R., 2003 NBCA 55; 262 N.B.R. (2d) 1; and R. v.

Sappier and Polchies, 2004 NBCA 56, 273 N.B.R. (2d) 93). [20] In Marshall, an Aboriginal person had been charged under the Fisheries Act, R.S.C. 1985, c. F-14, inconnection with fishing and selling eels without a licence, fishing during the closed season and fishing with prohibited nets. TheSupreme Court determined the 1760 Treaty under consideration included the right to hunt, fish and gather and also the right to trade theproducts of such activities for “necessaries”.

The right to trade for “necessaries” was determined by the Supreme Court to allow, in thepresent day, the securing of a “moderate livelihood”; however, it does not permit the “open-ended accumulation of wealth”. In otherwords, the right to trade is limited. Trade activity that exceeds the limits of the treaty right does not have treaty protection. Additionally,the treaty rights may be regulated by Parliament or a provincial legislature provided such regulation can be justified under the test set outin Sparrow and Badger.

Binnie J., writing for the majority in Marshall, provides an overview of these determinations in his openingcomments, including, the limits on the Crown’s ability to regulate the treaty rights after such rights were recognized by the ConstitutionAct, 1982. He states: [...] In R. v. Denny (1990), (NS CA), 55 C.C.C. (3d) 322, and earlier decisions cited therein, the Nova Scotia Court ofAppeal has affirmed the Mi’kmaq aboriginal right to fish for food. The appellant says the treaty allows him to fish for trade.

In my view,the 1760 treaty does affirm the right of the Mi’kmaq people to continue to provide for their own sustenance by taking the products oftheir hunting, fishing and other gathering activities, and trading for what in 1760 was termed “necessaries”. This right was alwayssubject to regulation. The Crown does not suggest that the regulations in question accommodate the treaty right. The Crown’s case isthat no such treaty right exists.

Further, no argument was made that the treaty right was extinguished prior to 1982, and no justificationwas offered by the Crown for the several prohibitions at issue in this case. Accordingly, in my view, the appellant is entitled to anacquittal. [para. 4] [...] I should say at the outset that the appellant overstates his case.

In my view, the treaty rights are limited to securing “necessaries” (which Iconstrue in the modern context, as equivalent to a moderate livelihood), and do not extend to the open-ended accumulation of wealth.The rights thus construed, however, are, in my opinion, treaty rights within the meaning of s. 35 of the Constitution Act, 1982, and aresubject to regulations that can be justified under the Badger test (R. v. Badger, (SCC), [1996] 1 S.C.R 771). ...

If at some point the appellant's trade and related fishing activities were to extend beyond what is reasonably required for necessaries,as hereinafter defined, he would be outside treaty protection, and can expect to be dealt with accordingly. [paras. 7-8] [Emphasis added.] [21] Prior to the Constitution Act, 1982, the treaty right to hunt, fish, gather and trade “enjoyed byother British subjects in the region” (para. 45), could be regulated or changed in the same manner as laws of general application.Significantly, however, following their recognition under s. 35, treaty rights can no longer be overridden or infringed by Parliament or alegislature unless the Crown can justify the necessity for doing so in accordance with the test set out in Sparrow and Badger.

As BinnieJ. explains: Until enactment of the Constitution Act, 1982, the treaty rights of aboriginal peoples could be overridden by competent legislation aseasily as could the rights and liberties of other inhabitants. The hedge offered no special protection, as the aboriginal people learned inearlier hunting cases such as Sikyea v. The Queen, (SCC), [1964] S.C.R. 642, and R. v. George, (SCC),[1966] S.C.R. 267. On April 17, 1982, however, this particular type of “hedge” was converted by s. 35(1) into sterner stuff that couldonly be broken down when justified according to the test laid down in R. v.

Sparrow, (SCC), [1990] 1 S.C.R. 1075, atpp. 1112 et seq., as adapted to apply to treaties in Badger, supra, per Cory J., at paras. 75 et seq. See also R. v. Bombay, [1993] 1C.N.L.R. 92 (Ont. C.A.).

The fact the content of Mi’kmaq rights under the treaty to hunt and fish and trade was no greater than thoseenjoyed by other inhabitants does not, unless those rights were extinguished prior to April 17, 1982, detract from the higher protectionthey presently offer to the Mi’kmaq people. [para. 48] [22] There is no dispute regarding the law and principles articulated above, all of which were thoroughly canvassedby the Provincial Court judge. Later in these reasons I will address more fully the test to justify the regulation of a treaty right, as set out

in Sparrow and Badger, including the issues of necessity and priority, both of which were important elements of the judge’s determination that the Crown could not possibly justify the Act in the circumstances. [ 23 ] Importantly, for the purposes of Mr. Reynolds’ application, the issues in dispute were defined by the Crown admission that Mr. Reynolds’ trade with Mr.

Knox fell within the scope of his treaty right to trade but for its position that: (1) at the September 24 th meeting, the Chiefs agreed to “forbear” the treaty right to trade moose with non-Aboriginals; and alternatively, (2) the meeting represented consultation with the First Nations and the application of the Act (in accordance with the Policy) is a justifiable regulation of the treaty right to trade moose.

On this basis, the Crown submitted the application was, at best, premature and should be dismissed. [ 24 ] In his reasons, the Provincial Court judge reviewed thoroughly the law respecting abuse of process and, after considering the circumstances of the prosecution, he concluded the continued prosecution was an abuse of process. He summarized the circumstances of Mr. Reynolds’ prosecution in the following words: In

summary, it is my finding that the defendant is being prosecuted in the following circumstances: 1) the Crown acknowledges he has an aboriginal treaty right to hunt and trade moose but for the fact the Crown has by policy attempted to deny the treaty right by prohibiting non-aboriginals from trading with aboriginals; 2) courts in New Brunswick have already ruled that an aboriginal person bears no criminal liability for trading moose where a non- aboriginal person has violated the provision of the Fish and Wildlife Act ; 3) the Crown is attempting to re-litigate issues that have already been determined in the favour of aboriginal persons, and in particular in Marshall ; 4) the Supreme Court of Canada has instructed that it is more appropriate to determine aboriginal issues in civil litigation and to stay prosecutions pending the outcome of such litigation; 5) there is no reasonable prospect of the Crown satisfying the justification test in Marshall , Badger , Sparrow with a policy that completely denies the aboriginal treaty right; 6) the Crown is attempting to do indirectly what it cannot do directly; 7) the Crown has failed to recognize its fiduciary duty to aboriginal people and has failed to consider the honour of the Crown required in all dealings with aboriginal people. [ 25 ] In considering the circumstances, the Provincial Court judge addressed one of the Crown’s two positions.

He concluded there was no reasonable prospect of the Crown justifying the application of the Act in accordance with the Policy. He found the Policy, without directly regulating the treaty right to trade, had the practical effect of denying the treaty right to trade moose with non-Aboriginals. By leaving the non-Aboriginal moose hunt and system of Transfer Permits unaffected, the Policy addressed conservation concerns without regard to the Crown’s obligation (

i) to intrude on a treaty right only to the extent necessary and (ii) to give the treaty right priority. Reasoning that the Policy was neither legislation nor regulation, enacted or amended for the purpose of regulating the Aboriginal treaty right to trade, he concluded: “[i]t is legally impossible to meet the test of justification since there is no law involved. The defendant should not be put through a criminal prosecution on this issue”.

Additionally, he noted while the Policy expressly indicated an intention to prosecute non-Aboriginal persons found in possession of moose meat (without a valid registration or Transfer Permit), the Policy did not similarly indicate an intention to prosecute Aboriginal persons for their involvement. [ 26 ] The reasons do not address the Crown’s primary position that, at the September 24 th meeting, First Nations agreed to forbear the exercise of their treaty right to trade in moose. The

Summary Conviction Appeal Court judge concluded that this was an error. The Crown’s assertion of an agreement was clearly addressed at the hearing before the Provincial Court judge. Mr.

Reynolds denied there was an agreement and his counsel reviewed in some detail the documents provided by the Department, including, the two sets of minutes of the September 24 th meeting. He maintained that not only did the minutes not evidence an agreement, they evidenced a clear lack of agreement regarding the treaty right to trade moose. Mr. Reynolds also submitted the Chiefs lacked the authority to amend or alter treaty rights on behalf of their bands and further, the documents indicate the Department was aware the Chiefs did not possess this authority.

When Crown counsel pressed its position that, at a minimum, the Crown believed in good faith an agreement had been reached, the judge expressed the view that he had “real problems” with the documents before him evidencing an agreement as asserted by the Crown. Crown counsel stated that proof of the agreement was not part of the motion and that, without hearing all of the evidence, including the evidence of the “people who were there negotiating”, the court should “withhold” its view on whether an agreement existed. B. The Crown’s appeal to the

Summary Conviction Appeal Court [ 27 ] In its appeal to the

Summary Conviction Appeal Court, the Crown submitted that the Provincial Court judge erred in law or in mixed fact and law in finding an abuse of process justifying a stay of proceedings. [ 28 ] The

Summary Conviction Appeal Court judge found the Provincial Court judge erred in not allowing the Crown the opportunity to present evidence in connection with its assertion the Chiefs agreed they would not exercise the treaty right to trade in moose with non-Aboriginals (and also for not addressing this issue in his reasons). He states: The question of whether or not there was a binding agreement with the New Brunswick First Nations to modify the treaty right is a question of fact. In my view, there was insufficient evidence before the trial judge to make that determination. It is no answer for Mr.

Reynolds to rely on the agreed Exhibit Book and say “That is the entire record on the application for the stay”. That flies in the face of the Crown’s repeated entreaties to the trial judge to hear evidence on the issue before determining whether a stay of proceedings was justified. Further, I have carefully reviewed Mr. Reynolds’ Pre-application Brief (dated August 22, 2014) and the Application Transcript and nowhere in either her written or oral submissions does Mr. Reynolds’ counsel raise the issue of compliance with section 2(3) of the Indian Act .

The question of whether there was an agreement to modify the treaty right is a threshold issue. If the trial judge had heard evidence on the point and determined that an agreement had been reached that likely would have ended the matter. The issue of stare decisis , re- litigation, and justification in accordance with the Sparrow/ Badger test would have become moot. In this case, the trial judge did not hear evidence on this threshold issue and indeed does not even address the matter in his reasons.

In my view, the trial judge erred in not allowing the matter to unfold to the point where there was sufficient evidence before the court to determine this threshold issue. He compounded the error by failing to explain or even address the question of the alleged agreement in his reasons. But for the trial judge’s conclusion that it is not appropriate to determine aboriginal treaty rights in the context of a

summary conviction prosecution, I would have allowed the appeal and set aside the stay of proceedings. However, for the reasons that follow, I conclude that the trial judge was justified in exercising his discretion to stay the proceedings. [paras. 21-22] [ 29 ] The

Summary Conviction Appeal Court judge rejected Mr. Reynolds’ submission that, even if the Chiefs had agreed to alter the treaty right, at law, they lacked the authority to bind their bands. The judge requested and received written submissions on the issue of amending or modifying treaty rights. In the end, however, he concluded that when Mr. Reynolds was before the Provincial Court judge, he did not raise s. 2(3) of the Indian Act , R.S.C. 1985, c. I-5 and he should not consider the issue further. On appeal, Mr. Reynolds’ counsel correctly points out that, while there was no express reference to s. 2(3) in Mr.

Reynolds’ submissions made to the Provincial Court judge, he clearly placed before the Provincial Court judge his position that the Chiefs did not have the authority to enter into such an agreement. [ 30 ] Notwithstanding these determinations, the

Summary Conviction Appeal Court judge dismissed the Crown’s appeal, accepting what he found to be the Provincial Court judge’s conclusion that it was appropriate to stay the charges against Mr. Reynolds on the basis that a prosecution in the Provincial Court is not the appropriate forum to determine the complex Aboriginal treaty issues that arise in the circumstances of this case. He says: In its oral submissions before both the trial judge and me the Crown conceded that this case raises complex issues which have far reaching implications for aboriginal treaty rights.

Furthermore, the circumstances of this case dictate that all parties interested in the outcome, particularly the First Nations alleged to have been parties to an agreement to modify the treaty right, be given the chance to be heard. The frailties and inadequacies of the

summary conviction process for adjudicating aboriginal treaty rights identified in R. v. Marshall; R. Bernard , supra , are applicable in this case. The limitations of the Provincial Court processes with respect to broad fact- finding (i.e. no provision for examination for discovery, document discovery etc.) are an impediment to thorough consideration of the

often complex social and legislative facts presented in constitutional cases. This is particularly concerning given the high degree of deference which is to be accorded to a trial judge’s finding on these facts by reviewing courts ( R. v. Bedford 2013 SCC 72 at paras. 48- 56 ). In my view, the trial judge properly concluded that a

summary conviction prosecution in the Provincial Court is not the appropriate forum for determining the aboriginal treaty issues in this case and he was justified in granting the stay of proceedings on that basis. Accordingly, the appeal is dismissed . [para. 25] [Emphasis added.] [ 31 ] In reaching this conclusion, the judge relied on the following comments of the Supreme Court in R. v. Marshall; R. v. Bernard : Although many of the aboriginal rights cases that have made their way to this Court began by way of

summary conviction proceedings, it is clear to me that we should re-think the appropriateness of litigating aboriginal treaty, rights and title issues in the context of criminal trials. The issues that are determined in the context of these cases have little to do with the criminality of the accused's conduct; rather, the claims would properly be the subject of civil actions for declarations. Procedural and evidentiary difficulties inherent in adjudicating aboriginal claims arise not only out of the rules of evidence, the

interpretation of evidence and the impact of the relevant evidentiary burdens, but also out of the scope of appellate review of the trial judge's findings of fact. These claims may also impact on the competing rights and interests of a number of parties who may have a right to be heard at all stages of the process. In addition, special difficulties come up when dealing with broad title and treaty rights claims that involve geographic areas extending beyond the specific sites relating to the criminal charges.

There is little doubt that the legal issues to be determined in the context of aboriginal rights claims are much larger than the criminal charge itself and that the criminal process is inadequate and inappropriate for dealing with such claims. I note that in the New Brunswick Court of Appeal, Robertson J.A. raised a number of concerns to support his view that

summary conviction proceedings are not conducive to adjudicating fairly on claims of aboriginal title: R. v. Bernard (2003), 262 N.B.R. (2d) 1 , 2003 NBCA 55 , at paras. 450-60 . See also Daigle J.A.’s reasons, at para. 210. The question of aboriginal title and access to resources in New Brunswick and Nova Scotia is a complex issue that is of great importance to all the residents and communities of the provinces. The determination of these issues deserves careful consideration, and all interested parties should have the opportunity to participate in any litigation or negotiations. 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 . [paras. 142-144] [Emphasis added.] III. Issues on Appeal A. The Crown’s appeal [ 32 ] In its Application for Leave to Appeal and Notice of Appeal, the Crown’s ground for appeal assert the

Summary Conviction Appeal judge erred in law, by imposing a stay of proceedings on grounds: (a) […] that exceeded his jurisdictional authority, namely by imposing a stay on the basis that the Provincial Court is an inappropriate judicial forum to determine legal issues relating to aboriginal residents of the Province of New Brunswick. (b) […] neither raised nor argued by either party, namely the constitutionality of the Provincial Court Act and the Provincial Court’s jurisdiction over issues related to aboriginal residents of New Brunswick. […] B. Mr.

Reynolds’ Notice of Contention [ 33 ] In his Notice of Contention, Mr. Reynolds asserts he is entitled to a stay of the charges against him, being the same relief granted by the

Summary Conviction Appeal Court judge, but on the ground(

s) determined by the Provincial Court judge,

namely, that: 1. Courts in New Brunswick have already ruled that an aboriginal person bears no criminal liability for trading moose where a non- aboriginal person has violated the provisions of the Fish and Wildlife Act ; 2. The Crown is attempting to re-litigate issues that have already been determined in the favour of aboriginal persons, and in particular in Marshall ; 3. There is no reasonable prospect of the Crown satisfying the justification test in Marshall , Badger , Sparrow with a policy that completely denies the aboriginal treaty right; 4.

The Crown is attempting to do indirectly what it cannot do directly; 5. The Crown has failed to recognize its fiduciary duty to aboriginal people and has failed to consider the honour of the Crown required in all dealings with aboriginal people; 6. The trial Judge analysed the policy relied upon by the Crown and documentation related to the policy and concluded that the policy did not indicate that aboriginal persons would face prosecution for exercising their aboriginal right, emphasizing the sui generis fiduciary duty of the Crown in all dealings with aboriginal people. IV. Analysis A. The Crown’s Appeal of

Summary Conviction Appeal Court Decision [ 34 ] The Crown submits the

Summary Conviction Appeal Court judge erred in determining an issue that was not squarely before him and in concluding it was appropriate to enter a stay on the basis the Provincial Court is not an appropriate form to deal with Aboriginal rights issues. [ 35 ] There is no disputing the obvious merit to the observations made by the Supreme Court in R. v. Marshall; R. v. Bernard (and this Court in Bernard v. R. ) that

summary conviction charges, which give rise to complex Aboriginal rights issues, involving the rights of persons not before the court, and issues larger than the prosecution itself, would be better adjudicated outside the context of a criminal trial. Nevertheless, it is common ground that the Supreme Court did not contemplate or direct a permanent stay of

summary conviction charges for those reasons. There is no basis in law, whether advanced in support of a claim of abuse of process or otherwise, to permanently stay a

summary conviction charge based solely on the fact that the charges give rise to complex Aboriginal rights issues that could be better determined in a civil proceeding. As was acknowledged at the hearing before us, the observations of the Supreme Court in R. v. Marshall; R. v. Bernard do not alone provide the authority to permanently stay the charges.

There may be circumstances where it would be open to a Provincial Court judge to order a temporary stay of charges, pending the disposition of existing or contemplated litigation that was expected to have a material bearing on rights relevant to the prosecution of the charges; however, that is not the situation here. [ 36 ] Moreover, Mr. Reynolds did not seek a permanent stay of the charges on this basis.

His Notice of Application requests, as alternative relief, that the charges against him be stayed pending the Crown’s acquisition of a civil declaration on its position on the meaning and regulation of the treaty right. As noted above, the Provincial Court judge considered the comments of the Supreme Court in R. v. Marshall; R. v. Bernard in his

summary of the circumstances surrounding the prosecution. However, his reasons do not indicate that he either interpreted or relied on these comments as a basis, in and of itself, to issue a permanent stay. It would have been an error had he done so. [ 37 ] For these reasons, pursuant to s. 839(1) (

a) of the Criminal Code (applicable by reference, pursuant to s.116(1) of the Provincial Offences Procedure Act ), I would grant the Crown’s request for leave to appeal on a question of law. I would have allowed the Crown’s appeal but for my conclusion the appeal ought to be dismissed for reasons raised in the Notice of Contention, and addressed below.

B. The Notice of Contention [ 38 ] The Notice of Contention effectively revives most of the submissions made by Mr. Reynolds to the Provincial Court judge in the first instance, as almost all were addressed in the judge’s reasons for ordering the stay. His decision did not turn on the acceptance of one particular finding or circumstance. Rather, it seems clear, from a contextual reading of his reasons, he ordered a stay based on the totality of the circumstances surrounding the prosecution of Mr. Reynolds.

Not surprisingly, his analysis demonstrates that some circumstances influenced his decision more than others; chief among them is his conclusion that there was no reasonable prospect of the Crown justifying the impugned provisions of the Act . Not raised by the Notice of Contention is the Crown’s position on the existence of an agreement to “forbear” the exercise of the treaty right to trade in moose. What follows will address both the issues raised in the Notice of Contention, as well as the Crown’s position that the treaty right to trade had been modified by agreement.

They are addressed in the order which facilitates the required analysis.

(1) Attempting to re-litigate issues already determined in favor of Aboriginal persons, and in particular, in Marshall [ 39 ] In this appeal, Mr. Reynolds submits the Provincial Court judge correctly characterized the Crown’s position as attempting to re-litigate the 1760 Treaty rights, which had been previously determined in favour of Aboriginal persons by the Supreme Court in Marshall . [ 40 ] Mr. Reynolds initially submitted this was the case in response to the Crown’s attempt to deny the applicability of his treaty right to trade in connection with his trade of moose to Mr. Knox.

At first blush, this description might appear questionable – after all, for the purposes of Mr. Reynolds’ application for a stay, the Crown admitted the transaction with Mr. Knox fell within the exercise of Mr. Reynolds’ treaty right to trade – but for its position that, by agreement, the right to trade in moose had been relinquished and its alternate position that the Department consulted First Nations and the Act is a justifiable regulation of the treaty right to trade. In essence, for the purposes of the application, the Crown has acknowledged a successful prosecution of Mr.

Reynolds depends on its ability to prove there is an agreement or, if necessary, to establish justification, in accordance with Sparrow and Badger . However, this position represents a significant departure from the Crown’s original position in the prosecution of Mr. Reynolds; namely, that the 1760 Treaty right to trade is “inherently limited” and does not include the right to trade with non-Aboriginals if it is unlawful for non- Aboriginals to trade or possess the product of the trade. In view of this initial assertion, it is not difficult to understand why Mr.

Reynolds claimed, at least initially, the Crown was putting in issue (or in his words, seeking to re-litigate) the treaty trade rights already determined by the Supreme Court in Marshall . The evolution of the Crown’s position is relevant to understanding the judge’s conclusion that the Crown was attempting to re-litigate the treaty rights in Marshall . It is also relevant as background to Mr. Reynolds’ application for a stay. Significantly, it appears from the record that, until the Crown responded to Mr. Reynolds’ application, the Crown did not assert that, by agreement, Mr.

Reynolds’ treaty rights were not an answer to the charges under the Act . There is no indication the Crown advised Mr. Reynolds his treaty right did not apply to moose (because of the alleged agreement) when he first asserted his treaty right in response to the charges, or at the pre-trial conferences held in January 2014, when his trial was adjourned. I will explain. [ 41 ] Normally, the basis for or the theory of the Crown’s case is not evident when charges are laid. The Informations, sworn on April 17, 2013, allege Mr.

Reynolds unlawfully offered wildlife for trade, contrary to s. 51(1) (a), and unlawfully possessed moose meat, contrary to s. 58 of the Act . On the face of the Informations, it would appear Mr. Reynolds was being charged directly, not as an accessory to the offences of Mr. Knox. [ 42 ] Mr. Reynolds’ first appearances in Provincial Court were without legal counsel. At his counsel’s initial appearance (on October 8, 2013), the Court was advised that the half-day previously scheduled for trial would not be adequate and both counsel requested a three-day hearing.

Crown counsel explained that the parties might reach an agreement on the facts and also that expert testimony might be called regarding treaty rights. At this appearance, there were no express admissions by either the Crown or Mr. Reynolds. However, there was never any dispute regarding the facts of Mr. Reynolds’ trade with Mr. Knox or the existence of Mr. Reynolds’ treaty rights. The contentious issue was whether Mr. Reynolds’ right to trade would provide an answer to his role in the trade of moose to Mr. Knox, a non-Aboriginal.

At the risk of being repetitious, I would again point out that there was no suggestion, at this stage, that the Crown would later assert the existence of an agreement which precluded Mr. Reynolds from relying on the right to trade in respect of moose. A three-day trial was scheduled to commence on January 29, 2014. Counsel undertook to file pre-hearing briefs in connection with anticipated issues respecting Mr. Reynolds’ treaty rights. [ 43 ] The parties filed pre-hearing briefs in early January 2014.

It appears from the record they concluded the three- day trial could not proceed on January 29, 2014, and, as a consequence, the parties advised the court and they appeared before the judge, by telephone, on January 16, 2014, and in court, on January 30, 2014. The Crown’s position and the issues raised with the judge at these pre-trial conferences gave rise to Mr. Reynolds subsequently filing his application for a stay.

[ 44 ] The parties’ positions were set out in their briefs. Mr. Reynolds admitted he shot a moose and traded it to a non-Aboriginal; as expected, he maintained that his participation in this transaction was a lawful exercise of his constitutionally protected treaty right to trade . The Crown stated it did not dispute Mr. Reynolds’ status as an Aboriginal or that he possessed, as a beneficiary of the 1760 Treaty, a general right of trade, as established by the Supreme Court in Marshall. However, at this time, the Crown did not go so far as to admit the trade with Mr. Knox fell within the scope of Mr.

Reynolds’ right to trade, as the Crown later admitted in the Agreed Statement of Facts filed in connection with Mr. Reynolds’ application. [ 45 ] The Crown’s submissions regarding the basis for Mr. Reynolds’ liability under the Act , given his admitted treaty right to trade, were difficult to discern.

In its brief, the Crown stated the issue before the court: …involves a question concerning the inherent limitation of the trade clause, when the exercise of the treaty right implicates a legal prohibition ( Fish and Wildlife Act ) which has as its object the regulation of a provincial resource (moose) in respect of non-aboriginals. This issue has yet to be determined by the courts. Their position that Mr.

Reynolds could not rely on the 1760 Treaty rights determined in Marshall , to avoid liability under the Act , appears to have been based on the following two assertions. [ 46 ] First, the Crown’s submission the 1760 Treaty right to trade is “inherently” limited put in issue the scope and nature of the treaty right to trade described in Marshall . The Crown maintained the right to trade permits Aboriginal persons to trade with a non-Aboriginal persons provided it is lawful for non-Aboriginal persons to acquire (or possess) the product traded. Said differently, according to the Crown, Mr.

Reynolds’ treaty right to trade did not permit him to trade with Mr. Knox since it was unlawful for Mr. Knox to acquire and possess the moose traded. The Crown maintained that Mr. Reynolds’ treaty right to trade with non-Aboriginals must be interpreted by having regard to “the meaning” of the Oath of Allegiance to the British Crown. The Crown submitted the Oath of Allegiance was “at a minimum, an agreement to accept British law in respect of British citizens”.

The Crown submitted this issue was not addressed in Marshall and the Crown indicated an intention to call expert evidence. [ 47 ] Second, the Crown submitted that prosecuting Mr. Reynolds as an accessory to the offences committed by Mr. Knox, did not infringe his treaty right to trade. And, as a consequence, the Crown had no obligation to justify the application of the Act against Mr. Reynolds as contemplated by Sparrow and Badger . A foundational premise to this submission is the Crown’s proposition that the object of the Act is the regulation of the non-Aboriginal access to the Province’s wildlife resources.

It submits the prosecution of the provisions of the Act against Mr. Reynolds, as an accessory to the offence of Mr. Knox, is not an effort to “directly” regulate his treaty right nor does it “directly” infringe his exercise of that right. Further, it was the Crown’s submission that, if the prosecution of Mr. Reynolds “indirectly” infringes his treaty rights, which they denied, any such infringement is “incidental” to the regulation of the non- Aboriginal liberty to hunt and possess moose.

Parenthetically, at the hearing of the application, the Crown maintained that the Policy (ending the issue of Special Transfer Permits), which resulted from consultation at the September 24 th meeting and an alleged agreement with the First Nations, was intended to reduce the trade in moose from Aboriginals to non-Aboriginals. [ 48 ] The Crown’s alternative position was that: if the enforcement of the Act against Mr. Reynolds (as an accessory) is found to infringe his treaty right to trade, the Act could be justified as contemplated by Sparrow and Badger. The Crown also submitted, correctly, it would be for Mr.

Reynolds to establish a prima facie infringement and, if established, the Crown would then bear the burden of justifying the infringement. [ 49 ] Mr. Reynolds took great exception to the Crown’s positions. He maintained the enforcement of the Act against him, even as an accessory, infringed his treaty right to trade and the Crown bore the burden of justifying the Act , as contemplated by Sparrow and Badger . Mr. Reynolds’ counsel explained to the Provincial Court judge that they were seeking a preliminary determination of this issue. Mr.

Reynolds’ brief identifies issue as follow: • The Crown maintains that by charging Mr. Reynolds, as a party to the offence of a non-Aboriginal, Mr. Knox, the Crown does not have to justify the Fish and Wildlife regulations which it seeks to apply indirectly to Mr. Reynolds , an Aboriginal; • The key issue in this prosecution, is whether or not the Crown must justify sections 58 and 51(1) (

a) of the Fish and Wildlife Act under the Badger and Sparrow test in prosecuting Mr. Reynolds and if so whether the Crown can meet that test. [ 50 ] Importantly, Mr. Reynolds’ counsel also advised the Court of a new issue, recently discovered and not addressed in his brief. This issue would later prompt Mr. Reynolds’ application. His counsel had just learned of the Policy and that, since 2003, the Minister had not issued a Transfer Permit under s. 91(2) to allow any non-Aboriginal person to acquire and possess moose

harvested by an Aboriginal person. Until learning of the Policy, Mr. Reynolds understood that Mr. Knox had been charged (and pled guilty) because he had simply not bothered to obtain a Transfer Permit. His counsel submitted that, by refusing to issue Transfer Permits in these circumstances, the Crown has effectively denied Aboriginals their constitutionally protected treaty right to trade in moose. Finally, Mr. Reynolds’ counsel advised they were waiting for disclosure of the Department’s files respecting the implementation of the Policy, and that Mr.

Reynolds might bring an application for a stay of the charges based on an abuse of process. [ 51 ] Crown Counsel advised they had just received the Department’s files respecting the Policy and would provide copies to Mr. Reynolds’ counsel. The documents disclosed were later included in the Book of Exhibits. They include the Policy and the minutes of the September 24 th meeting. As noted, the Crown also advised the Provincial Court judge that in its prosecution of Mr. Reynolds they would include the calling of expert evidence relating to treaty rights. Dr.

Patterson, an historian, who had testified in Marshall and Bernard , was present in the courtroom. The judge directed that can-say statements be provided from any experts who were expected to be called at trial and from whom there was no report. [ 52 ] There was no suggestion in the record that the Crown would subsequently advance, as its primary position, the existence of an agreement formed at the September 24 th meeting and that, as a consequence, Mr. Reynolds’ treaty right to trade was no answer to the charges under the Act . [ 53 ] In March 2014, Mr.

Reynolds filed his Notice of Application and Constitutional Issue. The hearing was held on September 2, 2014. Mr. Reynolds and the Crown filed additional pre-hearing briefs, responding specifically to the issues raised in the application. [ 54 ] At the commencement of the hearing, the trial judge was provided with the portion of the Agreed Statement of Facts which contained the Crown’s admission that the transaction with Mr. Knox fell within the scope of Mr.

Reynolds’ treaty right to trade, subject to the Crown’s “position on consultation and agreement”: Subject to its position on consultation and agreement with the First Nations in the province, that the transaction described herein would fall within the context of ‘necessaries equivalent to a moderate livelihood’, as described by the Supreme Court of Canada decisions in Marshall . [ 55 ] The Crown stated (in its pre-hearing brief) the principal issue in the prosecution of Mr. Reynolds is the existence of an agreement to forbear the exercise of the treaty right to trade in moose. It states: 25.

In the Crown’s submission there is but one principal issue in this prosecution. That issue is whether or not the various First Nation communities (including Woodstock) agreed to forbear exercising their trade right vis-à-vis moose. That issue has not been litigated in respect of the evidence which the Crown proposes to lead. [ 56 ] The brief makes no other mention of the Crown’s position respecting the alleged agreement. In its oral submissions, the Crown maintained Mr.

Reynolds’ application for a stay was premature, and submitted the court would have to hear additional evidence, virtually the “whole” of the Crown’s case, before it could consider whether a stay should be granted.

When the Provincial Court judge expressed doubt about the record evidencing the existence of an agreement, or the terms of such agreement, the Crown responded by stating that “without hearing the evidence on the entire file and some of the people who were there negotiating it or dealing with this, that you – you should withhold your judicial view on it”. [ 57 ] Although the Crown did not raise justification in its brief, toward the end of its oral submissions, Crown counsel stated that, if ultimately it was not able to establish the existence of an agreement, they would nevertheless be entitled to an opportunity to address justification. [ 58 ] For the purposes of the application, these two assertions reflect the Crown’s position in the prosecution of Mr.

Reynolds. In essence, the Crown acknowledged that a successful prosecution depended upon its ability to establish Mr. Reynolds could not rely on the treaty right to trade in moose because of the alleged agreement or, alternatively, any infringement was justifiable. The Crown’s reliance on its initial position respecting Mr. Reynolds’ liability under the Act , namely, the treaty right is “inherently limited”, was apparently abandoned, at least for the purposes of the application. That said, the Crown’s submissions to the

Summary Conviction Appeal Court raised these alleged limitations to the treaty right. Also, notwithstanding the Crown’s current position with respect to justification, the Crown continued to pursue the prosecution of Mr. Reynolds as an accessory.

[ 59 ] The Crown was entitled to change its position and assert the existence of the alleged agreement. However, without a doubt, Mr. Reynolds found it a challenge to determine and respond to the case against him. Indeed, the pre-hearing briefs on the application addressed issue estoppel in relation to the Crown having put in issue the 1760 Treaty rights determined by the Supreme Court in Marshall . In fact, despite the Agreed Statement of Facts admitting that the trade with Mr. Knox fell within Mr. Reynolds’ treaty right (subject to agreement and justification), oral arguments were made on issue estoppel at the hearing of the application and the judge addressed the issue in his reasons.

(2) Forbearance/Amendment agreement respecting the treaty right to trade [ 60 ] In this appeal, Mr. Reynolds disputes the determination of the

Summary Conviction Appeal Court that the Provincial Court judge erred by failing to conclude the Crown’s assertion of an agreement gave rise to a dispute of fact requiring his application to be dismissed (were it not for the decision to dismiss the Crown’s appeal for other reasons).

He denies the Chiefs made an agreement, as alleged by the Crown, and that, even if they had, such an agreement could not alter the 1760 Treaty rights, since the Chiefs do not possess the power or authority to vary or amend a treaty. [ 61 ] In support of an agreement, the Crown relied on comments in the minutes of the September 24 th meeting which were favourable to the Crown’s suggestion of temporarily ending the trade of moose to non-Aboriginals.

T he Crown also relied on a February 2004 letter from the Minister to a First Nation Chief as evidence that an agreement had been reached or, at least, that the Crown had a bona fide belief that an agreement had been reached. In the letter, the Minister refers to an “agreement” reached in September 2003. However, the Crown’s main submission at the hearing before the Provincial Court judge was that it would lead evidence to prove an agreement at a trial and, therefore, the application should be dismissed so that it could do so. [ 62 ] Referring to the record before the judge, Mr.

Reynolds maintained that neither of the two sets of minutes of the September 24 th meeting supports the Crown’s assertion that an agreement had been reached at the meeting; on the contrary, he submits the minutes evidence a clear lack of agreement. Both sets of minutes, one prepared by the Department and the other prepared by the First Nations, were in the possession of the Department and were provided as part of the disclosure. Mr.

Reynolds also submits the Policy, implemented on September 25, 2003, the day after the meeting, and the other documents from the Department, reflect a unilateral decision by the Minister to implement the Policy, not an agreement. The Policy, set out in a memorandum from the Deputy Minister to various government officials, provides: Effective immediately, the Department of Natural Resources will not be issuing Special Transfer Permits for moose meat harvested by aboriginal hunters. Permits for the transfer of meat may only be issued to persons who have a valid New Brunswick moose hunting license and registration.

Non-aboriginal persons found in possession of moose meat without a valid registration or transfer permit will face prosecution in accordance with the New Brunswick Fish and Wildlife Act . [Emphasis added.] Please inform all staff of this new policy. Dorénavant, le ministère des Ressources naturelles ne délivrera pas de permis de transfert spéciaux pour la viande des orignaux abattus par des chasseurs autochtones. Les permis autorisant le transfert de viande ne peuvent être délivrés qu’aux personnes qui possèdent un permis valide de chasse à l’orignal ainsi qu’un certificat d’enregistrement.

Les personnes non autochtones que l’on trouvera en possession de viande d’orignal sans posséder un certificat d’enregistrement valide et un permis de transfert valide, feront l’objet de poursuites judiciaires conformément à la

Loi sur la pêche sportive et la chasse du Nouveau-Brunswick. [Les caractères gras sont de moi.] Veuillez informer tous les membres du personnel de cette nouvelle politique. There is no evidence that the Policy was published or otherwise circulated generally.

[ 63 ] In a letter to one of the Chiefs dated September 25 th , the day after the meeting, the Minister states he has concluded “as an interim step, the most appropriate action to take at this time is to cancel the current policy which authorizes the transfer of moose meat from an aboriginal person to a non-aboriginal person”. It is difficult to view the Policy as intending to do anything other than end the Aboriginal trade in moose to non-Aboriginals.

The letter provides: Re: Moose Transfer Permits Based on my discussions with you, including our meeting of September 24, 2003, I have concluded that as an interim step, the most appropriate action to take at this time is to cancel the current policy which authorizes the transfer of moose meat from an aboriginal person to a non-aboriginal person. This is being done effective today. The dialogue which has taken place over the past few weeks have been very beneficial and I am encouraged that with further efforts, we may be able to achieve a long-term co-management agreement on moose.

Our willingness to establish a working group to deal with this issue is an excellent step. As mentioned by a number of speakers yesterday, there are a number of other resource management issues where constructive dialogue is also important and necessary for progress to occur. I look forward to meeting with you again. [ 64 ] In the months leading up to the meeting, the Department was concerned about the trade in moose and it was seeking an opportunity to meet with the Chiefs to determine whether it would be possible to negotiate an agreement on the regulation of the treaty right respecting moose.

The meeting with the Chiefs addressed more than the trade in moose; it also considered the harvesting of wood. It would appear that the Policy was, as referred to by the Minister in his September 25 letter, an “interim step” in the process toward regulation of the treaty right; a step which has continued for almost 14 years. Moreover, notwithstanding the beginning of a process designed to move toward the regulation of the treaty right, the result was the implementation of the Policy, which, on its face, targets only the non-Aboriginal possession of moose.

While the Policy expressly states that non-Aboriginal persons will be charged, there is no mention of prosecuting of Aboriginal persons for their involvement in a non-Aboriginal trading or possessing moose. [ 65 ] T he record gives no reason to question the Provincial Court judge’s observation that he had “real problems” with the Crown’s submission the record evidenced an agreement or the terms of any such agreement.

While he did not address this issue in his reasons, it seems clear that, at best, he considered the Crown’s position in the application to be that, at trial, it would call evidence to establish that an agreement had been reached. It is my view the Crown’s assertion that a meeting of the minds occurred is inconsistent with the record before the judge.

For the Crown to establish that there had been an agreement, or a meeting of the minds, the Crown would have to call evidence that would explain away the documents in the record which indicate a lack of agreement respecting the role of Aboriginals in the trade of moose. Even apart from the record, the Crown’s position does not identify the terms, even generally, of an agreement. As noted, the Crown’s written submission to the Provincial Court, submitted the Chiefs agreed to “forbear” the exercise of their right to trade moose.

It was submitted the Chiefs agreed to the Minister ending the system of Special Transfer Permits, which allowed non-Aboriginals to acquire moose from Aboriginals. It was also submitted as reflected in the Policy, non-Aboriginals would be charged under the Act if they traded with Aboriginals for moose. The Policy is described as “interim” but there is no evidence or suggestion of a term for the Policy or the alleged agreement. To sum up, there is simply a general allegation of an agreement, an allegation that is contradicted by the record. [ 66 ] Further, and as mentioned above, Mr.

Reynolds maintained that even if the Chiefs had entered into an agreement, they did not have the authority to bind the First Nations to an amendment of the 1760 Treaty; such authority rested with the bands. He submits the Department was well aware of the limits to the Chiefs’ authority and pointed to the Department’s documents acknowledging that the best that could be accomplished at a meeting with the Chiefs was a negotiation, with any arrangement having to be subsequently ratified by their respective bands. Counsel for Mr.

Reynolds made this submission to the Provincial Court judge and argued the Chiefs could no more bind the bands than a mayor could independently bind a municipality. Later, in the Crown’s appeal to the

Summary Conviction Appeal Court, Mr. Reynolds bolstered this submission by also referring that court to s. 2(3) of the Indian Act . It provides:

2. Exercise of powers conferred on band orcouncil

(3) Unless the context otherwise requires orthis Act otherwise provides, (

a) a power conferred on a band shall bedeemed not to be exercised unless it isexercised pursuant to the consent of amajority of the electors of the band; and (

b) a power conferred on the council of aband shall be deemed not to be exercisedunless it is exercised pursuant to the consentof a majority of the councillors of the bandpresent at a meeting of the council dulyconvened. 2. Exercice des pouvoirs conférés à unebande ou un conseil

(3) Sauf indication contraire du contexte oudisposition expresse de la présente loi :

a) un pouvoir conféré à une bande est censéne pas être exercé, à moins de l’être en vertudu consentement donné par une majorité desélecteurs de la bande;

b) un pouvoir conféré au conseil d’une bandeest censé ne pas être exercé à moins de l’êtreen vertu du consentement donné par unemajorité des conseillers de la bande présents àune réunion du conseil dûment convoquée. [67] In the appearance before the

Summary Conviction Appeal Court judge, the parties provided writtensubmissions respecting the authority to amend a treaty. The Crown denied the applicability of s. 2(3) but gave no basis for thissubmission other than to say the provision was not relied upon by Mr. Reynolds in his submissions before the Provincial Court. Thejudge appears to have accepted this position since he declined to rule on the issue, concluding Mr. Reynolds had not relied on s. 2(3)before the Provincial Court judge. [68] There is no dispute that a treaty can be amended or that treaty rights may be suspended. Mr.

Reynolds readilyacknowledges this. What is disputed is the Crown’s submission the treaty could be varied by the Chiefs alone in the circumstances of the September 24th meeting. The Crown referred to R v. Seward, [2001] B.C.J. No. 1726 (QL) as an example of treaty rights beingsuspended by agreement. In that case, however, there was a written agreement with the band which effectively suspended collectivetreaty fishing rights. Interestingly, the agreement expressly provided that it was not a treaty or an agreement within the meaning of s. 35of the Constitution Act.

The Crown does not identify any authority for the proposition the Chiefs could alter communal treaty rights andbind their bands. Other authorities cited by the Crown were not helpful to this issue (see: R. v. Sioui, (SCC), [1990] 1S.C.R. 1025, [1990] S.C.J. No. 48 (QL), para. 42-45; and R. v. Shipman, 2007 ONCA 338, [2007] O.J. No. 1716 (QL), at para. 43). [69] For the purposes of Mr. Reynolds’ application, it is not necessary to determine whether the Chiefs possessedthe authority, at law, to vary or suspend rights under the 1760 Treaty.

It is sufficient to say that it is very difficult to imagine, in theabsence of writing, circumstances where a constitutionally protected treaty could be found to have been amended, or the rights under thattreaty compromised, by anything less than very clear evidence as to an agreement and the terms of such agreement.

While many suchtreaties, including the 1760 Treaty, were not fully reduced to writing, what is or was sufficient to find an intention to conclude a bargainat that time, will not be so readily accepted for establishing an agreement in the present, especially an agreement respecting a treaty thatis now constitutionally recognized. In this case, not only is there a lack of a written agreement, there is a lack of evidence supporting anagreement in principle or identifying the terms of an agreement.

In the end, all that may be concluded is that in prosecuting Mr.Reynolds, to overcome his admitted treaty right to trade with Mr. Knox (but for justification), the Crown is relying on an agreementwhich it has no reasonable prospect of establishing at trial.

(3) Justification [70] Mr. Reynolds submits the Provincial Court judge was right to conclude, on the record before him, the Crowncould not possibly establish justification, as contemplated in Sparrow and Badger. [71] The judge accepted Mr. Reynolds’ submission that, for all practical purposes, the application of the Act,pursuant to the Policy, denied the treaty right to trade moose with non-Aboriginals. In other words, by baring non-Aboriginals fromtrading for moose, the impugned provisions of the Act constituted a prima facie infringement of the treaty right to trade.

He furtherconcluded there was no reasonable prospect that the infringement could be justified based upon the admitted evidence before the court. Itwas clear that, at the time the Policy was implemented, the non-Aboriginal moose hunt (and practice of issuing Transfer Permits for theharvest of moose from that hunt) continued unaltered, despite the conservation concerns which the Crown says justifies the Act’s

infringement of the treaty right to trade. The judge noted, as a matter of law, justification requires that the regulation of treaty rights be necessary in order to achieve the objective of regulation and also that a priority be given to the treaty rights. It was on this basis he concluded there was no reasonable prospect of the Crown meeting the test for justification. [ 72 ] The analytical framework for determining whether Crown regulation is justifiable was set out in Sparrow . The first question is whether the prohibition has the effect of interfering with an existing right.

If it does, it represents a prima facie infringement of s. 35(1). If a prima facie infringement is established, the onus is then on the Crown to justify the infringement. This was described by Dickson C.J. and La Forest J.: Section 35(1) suggests that while regulation affecting aboriginal rights is not precluded, such regulation must be enacted according to a valid objective.

Our history has shown, unfortunately all too well, that Canada's aboriginal peoples are justified in worrying about government objectives that may be superficially neutral but which constitute de facto threats to the existence of aboriginal rights and interests. By giving aboriginal rights constitutional status and priority, Parliament and the provinces have sanctioned challenges to social and economic policy objectives embodied in legislation to the extent that aboriginal rights are affected. Implicit in this constitutional scheme is the obligation of the legislature to satisfy the test of justification.

The way in which a legislative objective is to be attained must uphold the honour of the Crown and must be in keeping with the unique contemporary relationship, grounded in history and policy, between the Crown and Canada’s aboriginal peoples . The extent of legislative or regulatory impact on an existing aboriginal right may be scrutinized so as to ensure recognition and affirmation. The constitutional recognition afforded by the provision therefore gives a measure of control over government conduct and a strong check on legislative power.

While it does not promise immunity from government regulation in a society that, in the twentieth century, is increasingly more complex, interdependent and sophisticated, and where exhaustible resources need protection and management, it does hold the Crown to a substantive promise. The government is required to bear the burden of justifying any legislation that has some negative effect on any aboriginal right protected under s. 35(1) . In these reasons, we will outline the appropriate analysis under s. 35(1) in the context of a regulation made pursuant to the Fisheries Act .

We wish to emphasize the importance of context and a case-by-case approach to s. 35(1). Given the generality of the text of the constitutional provision, and especially in light of the complexities of aboriginal history, society and rights, the contours of a justificatory standard must be defined in the specific factual context of each case . […] To determine whether the fishing rights have been interfered with such as to constitute a prima facie infringement of s. 35(1), certain questions must be asked. First, is the limitation unreasonable? Second, does the regulation impose undue hardship?

Third, does the regulation deny to the holders of the right their preferred means of exercising that right? The onus of proving a prima facie infringement lies on the individual or group challenging the legislation. In relation to the facts of this appeal, the regulation would be found to be a prima facie interference if it were found to be an adverse restriction on the Musqueam exercise of their right to fish for food.

We wish to note here that the issue does not merely require looking at whether the fish catch has been reduced below that needed for the reasonable food and ceremonial needs of the Musqueam Indians. Rather the test involves asking whether either the purpose or the effect of the restriction on net length unnecessarily infringes the interests protected by the fishing right .

If, for example, the Musqueam were forced to spend undue time and money per fish caught or if the net length reduction resulted in a hardship to the Musqueam in catching fish, then the first branch of the s. 35(1) analysis would be met. [paras. 64-66 and 70] [Emphasis added.] [ 73 ] In my view, the Policy and the impugned provisions of the Act form a regulatory scheme which gives rise to a prima facie infringement of Mr. Reynolds’ treaty right to trade.

While the Crown submits that trade in moose is only a small or insignificant part of the trade right, the Act effectively denies the exercise of the treaty right to trade in connection with moose. For the purposes of this part of the analysis, the application of the Act is an adverse and unreasonable interference with the treaty right.

The judge was correct to conclude a prima facie an infringement of the right to trade existed. [ 74 ] In explaining the justification obligation imposed on the Crown, once a prima facie infringement is found, Dickson C.J. and La Forest J. say: If a prima facie interference is found, the analysis moves to the issue of justification. This is the test that addresses the question of what constitutes legitimate regulation of a constitutional aboriginal right. The justification analysis would proceed as follows. First, is there a valid legislative objective?

Here the court would inquire into whether the objective of Parliament in authorizing the department to enact regulations regarding fisheries is valid. The objective of the department in setting out the particular regulations would also be scrutinized.

An objective aimed at preserving s. 35(1) rights by conserving and managing a natural resource, for example, would be valid. Also validwould be objectives purporting to prevent the exercise of s. 35(1) rights that would cause harm to the general populace or to aboriginalpeoples themselves, or other objectives found to be compelling and substantial. […] While the “presumption” of validity is now outdated in view of the constitutional status of the aboriginal rights at stake, it is clear thatthe value of conservation purposes for government legislation and action has long been recognized.

Further, the conservation andmanagement of our resources is consistent with aboriginal beliefs and practices, and, indeed, with the enhancement of aboriginal rights. If a valid legislativ

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