R. v. Sjolund Date:, 2012 BCPC 393

Citation: R. v. Sjolund Date: 20121018 2012 BCPC 0393 File No: 6017-4-C Registry: Masset IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. COLTON RAYMOND SJOLUND REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE H. J. SEIDEMANN III Counsel for the Crown: C. Ducluzeau Counsel for the Defendant: M. Redgwell Place of Hearing: Masset , B.C. Date of Hearing: October 18, 2012 Date of Judgment: October 18, 2012

[1] Mr. Sjolund was charged with a variety of offenses. After a trial, I found that Mr. Sjolund had committed two propertyoffences and one firearms offense. Mr. Sjolund has advanced the defense that the provisions of the Criminal Code creating the firearmsoffence, as applied in these circumstances, infringe his rights as an aboriginal person, pursuant to

Section 35 of the Charter of Rights. [2] The issue to be determined by me at this time is whether or not there is any possibility of success with that defense. TheCrown takes the position that, even if Mr. Sjolund establishes all of the factual elements that he says he can establish, he will fail toestablish an infringement sufficient to constitute a defense. [3] I have heard submissions, based upon the evidence at trial and counsel’s assertions of the additional evidence that they saycould be called to establish the defense.

My decision at this time will only be as to whether or not counsel is permitted to call thatevidence. If I conclude that, even if all the proposed evidence can be established, there is no possibility that it will amount to a defense,then we will not proceed to occupy court time with the calling of that evidence. If I conclude that it may be possible to establish adefense, we will proceed to hear the evidence and see if Mr. Sjolund can establish the facts he says he can and that will support thatdefense. [4] The relevant factual background from the trial is that Mr.

Sjolund and several other persons were out hunting for deer. Forpurposes of this application, I can take it that that hunting was for sustenance purposes. All the events took place on Haida Gwaii, inwhat would be traditional Haida territory. Mr. Sjolund and, I believe, most if not all of the other persons are Haida. The hunting wasoccurring at night. By provincial regulations, that is not permitted. Mr. Sjolund takes the position that his aboriginal right to hunt is notlimited by that regulation. The police initially took a different position, which is why all of these proceedings commenced. Eventually,Mr.

Sjolund was not charged with the hunting offence. What he was charged with, and what I found he had committed, was being in avehicle in which there was a firearm, when no one in the vehicle possessed a licence by which they could validly possess the firearm,contrary to section 94 (1) of the Criminal Code. [5] For purposes of this application, I will assume that Mr. Sjolund had an aboriginal right to hunt for sustenance purposes. Thedefense says that the Crown should concede that fact without putting the defense to the necessity of establishing it.

The Crown is notprepared to do that, but for purposes of this application I will proceed on the basis that this is something that the defense could establishif put to the proof. [6] The defence says that the right infringed is “the right of a member of the Haida Nation to engage in the traditional huntingpractices of the Haida people on unceded Haida territory with the use of firearms, ammunition and motor vehicles”. The Crown says thatthe right at issue is “the right to hunt for sustenance purposes”.

I do not find that there is any real difference between these positions. [7] The law is clear that an aboriginal right to hunt does not have to be exercised in the manner it may have been done in antiquity. The Supreme Court of Canada has established in a number of cases that an activity protected by

Section 35 may be a modern form of apractice that existed prior to contact. Hunting by firearms as opposed to hunting by bow and arrow is still a protected activity. Where ahunter may previously have used a canoe to travel away from the village to hunt, he may now use a motor vehicle.

Specifically, withrespect to the right to hunt, in Simon v. the Queen (SCC), [1985] 2 S.C.R. 387, Dickson, C.J. stated at p. 403: It should be clarified at this point that the right to hunt to be effective must embody those activities reasonably incidental to the act ofhunting itself, an example of which is travelling with the requisite hunting equipment to the hunting grounds. [8] For purposes of this application, I am prepared to assume that the defendant can establish that driving by motor vehicle to ahunting location is an activity which is reasonably incidental to the right to hunt and would therefore be a protected right. [9] The nub of the issue before me is whether the requirement that someone in a vehicle carrying a firearm have a licence by whichthe firearm might validly be possessed infringes that right to hunt.

Regina v. Sparrow (SCC), [1990] 1 S.C.R. 1075 isthe seminal case setting out the standard to be applied to determine whether or not an aboriginal right has been infringed. At paragraph68 of that decision, the court says: 68. The first question to be asked is whether the legislation in question has the effect of interfering with an existing aboriginal right. If it does have such an effect, it represents a prima facie infringement of s. 35(1).

Parliament is not expected to act in a manner contraryto the rights and interests of aboriginals, and, indeed, may be barred from doing so by the second stage of s. 35(1) analysis. The inquirywith respect to interference begins with a reference to the characteristics or incidents of the right at stake. ….. And at paragraph 70: ….To determine whether the fishing rights have been interfered with such as to constitute a prima facie infringement of s. 35(1), certainquestions must be asked. First, is the limitation unreasonable? Second, does the regulation impose undue hardship?

Third, does theregulation deny to the holders of the right their preferred means of exercising that right? The onus of proving a prima facie infringementlies on the individual or group challenging the legislation. …

[10] From this we can see that not every interference with the exercise of a protected right amounts to an infringement of that right. The defense in its submissions concedes that the interference must amount to a “meaningful diminution” of the right to constitute aninfringement of the right. [11] The defence submits that the provisions of section 94(1) are unreasonable because it criminalizes an activity, the carrying offirearms in vehicles, which is essential for the exercise of the right to hunt.

They say that, the defendant’s community is remote, there isinadequate availability of the Canadian Firearms Safety Course, and the costs of taking that course and obtaining the required licenceimpose an undue hardship on the defendant. They say that the application of section 94(1) to the defendant denies him his preferredmeans of exercising his right to hunt. [12] The Crown’s response to those submissions is that reasonable regulations aimed at ensuring safety do not amount to aninfringement of a right to hunt. They also say that the defendant is not denied his preferred means of exercising his right to hunt.

He canuse a motor vehicle to transport himself and his firearms; he must simply have someone in the vehicle with him who has the appropriatelicence. Finally, the Crown says that the provisions of the Aboriginal Peoples of Canada Adaptations Regulations (Firearms), SOR/98-205, (hereinafter the Adaptation Regulations) and the Firearms Fees Regulations, SOR/98-204 provide alternative means by which theDefendant could have acquired the necessary licence without taking the course and at no expense to him.

In these circumstances, theCrown says that the challenged provision imposes no undue hardship upon the Defendant. [13] In regard to the first point, the Crown relies upon R. v. Badger (SCC), [1996] 1 S.C.R. 771. In that case, CoryJ., speaking for the court, said: 88. Standing on its own, the requirement that all hunters take gun safety courses and pass hunting competency tests makes eminentlygood sense. This protects the safety of everyone who hunts, including Indians.

It has been held on a number of occasions that aboriginalor treaty rights must be exercised with due concern for public safety. ……and, 89. ….Accordingly, it can be seen that reasonable regulations aimed at ensuring safety do not infringe aboriginal or treaty rights tohunt for food. [14] In that case, the court was dealing with a requirement to obtain a hunting licence, not a firearms licence, but the Crown says thatthe principle is the same. [15] The provisions of the regulations referred to by the Crown allow persons in the situation of the Defendant to obtain a firearmslicence without taking the course in circumstances where the course is not easily available, by an elder or leader in the communityrecommending to the chief firearms officer that the person has the requisite safety knowledge and certifying that the required course ortests are not reasonably available.

They also provide that the fee for the licence would be waived where the Defendant required thelicence to hunt for sustenance purposes. [16] Applying the tests set out in Sparrow, supra, I must first consider whether or not the limitations imposed by section 94(1) arereasonable. That

section is part of a larger general legislative scheme controlling access to firearms. Clearly, the general purpose of thislegislative scheme is the safety of the public. This situation is very similar to that considered by my brother Judge T. C. Smith, PCJ, inR. v. Stump [1998] B.C.J. No. 1890. In that case, the accused had been charged with having a loaded firearm in a vehicle. They wereFirst Nations persons exercising an aboriginal right to hunt.

When considering whether or not the restriction on having a loaded firearmin a vehicle was reasonable, Smith, PCJ, said at paragraph 69: 69 The chief object of the Firearm Act and regulations is to protect the public against the unsafe use of firearms. R. v. Napoleon,[1985] B.C.J. No. 2070 at paragraph 49 (B.C.C.A.), Taggart J.A. for the Court, cited with approval on this issue by Cory J. in Badger(cited above) at paragraph 89. Taggart J.A. considered s. 12 [now s. 9, the

section which concerns us] as part of his analysis. I adopt hisanalysis and find that it applies here on the question of reasonableness. 70 The prohibition against a loaded firearm in a motor vehicle is designed to prevent firearms from being fired, accidentally orotherwise, in or from a motor vehicle.

Given the overall concern about safety in relation to firearms (and given the recent concern about“road rage”) I find the limitation imposed by s. 12 [now s. 9] of the Firearm Act is reasonable. [17] In this case, the requirement that someone in the vehicle have an appropriate licence is to ensure that the firearm is subject tocontrol by someone who is trained in the proper, safe, use and transportation of the firearm. I find that that is a reasonable limitation inthe circumstances. [18] I must next consider whether the legislation imposes an undue hardship on the defendant.

The Defendant says that, at the timeof the offence, the Defendant had been on a waiting list for the Firearms Course. There was a significant backlog for the course due tothe unavailability of the only instructor contracted to do the training on Haida Gwaii. Several courses had been cancelled as a result ofillness.

[ 19 ] The Adaptation Regulations provide for a licence to be issued to an individual if, as provided in

Section 13(b): (

b) the chief firearms officer has received a recommendation from an elder or leader of the individual’s Aboriginal community indicating that, in their opinion, the individual has the requisite knowledge to be certified under paragraph 7(4)(

a) of the Firearms Act , as adapted by

section 12 of these Regulations, and the Canadian Firearms Safety Course or the tests that form part of that Course are not available (

i) to the individual within a time, after the individual has made application for a licence, that is reasonable in the circumstances, (ii) in the individual’s community or at a location that can be reached from that community without undue cost or hardship to the individual, or (iii) at a cost that is reasonable in the circumstances. [ 20 ] The knowledge that is required to be certified by an elder or leader for the application of those provisions is contained in

section 14 of the Adaptation Regulations : (

a) basic knowledge of the safe storage, display, handling, transportation and use of firearms by individuals, including the operation of common hunting firearms; and (

b) basic knowledge of the laws that relate to the use of firearms and to the storage, display, handling and transportation of firearms by individuals. [ 21 ] These seem to me to be the very basic types of knowledge that we would want everyone who has control of a firearm to have for the safety of the public. [ 22 ] The circumstances complained of by the Defendant are exactly the circumstances that would have entitled him to obtain the benefit of the Adaptation Regulations . The Defendant may have been unaware of that option, I do not know.

What is clear is that there is no indication that the Defendant attempted to use the Adaptation Regulations and was unable to do so for any reason related to the legislation. As the Crown puts it, Mr.

Sjolund knew he should have a licence, he was unable to get one through the normal channels, and, without trying to obtain the benefit of the special procedures set up for persons in his circumstances, chose to proceed in a way prohibited by law. [ 23 ] All that was required of the Defendant to lawfully exercise his right to hunt in the exact manner which he desired to was for the Defendant to apply for the firearms licence and comply with the Adaptation Regulations and apply for exemption from the fee pursuant to the Firearms Fees Regulations .

The Defendant has indicated that he applied for and was issued a Right to Access permit by the Council of the Haida Nation, authorizing him to hunt on Haida territory. He was prepared to comply with those requirements imposed by his Band, but did not comply with the requirements imposed by Canada. [ 24 ] On the material before me, I cannot find that it would have imposed an undue hardship upon Mr. Sjolund to have complied with the requirements of

section 94. He could have been accompanied by a person with a licence. He could have obtained a licence through the Adaptation Regulations . Neither was particularly difficult. [ 25 ] Finally, I must consider whether or not the provisions of

Section 94 deny the Defendant his preferred means of exercising his right to hunt. The Crown says that the Defendant could legally have exercised his right to hunt exactly as he chose to, by having a person in the vehicle with him who had the appropriate licence. This is an area of the argument where one position taken by the Crown is most particularly applicable.

That is the position that aboriginal rights are collective rights and I must consider the effect of the impugned legislation on the Haida Nation as a whole, not just upon the Defendant. [ 26 ] If the effect of the legislation was that no Haida could transport firearms in a vehicle to hunt, clearly the collective would be denied the opportunity to exercise its rights in a preferred manner.

But I do not have any evidence, or the suggestion that evidence is available, that there are no Haida with the appropriate licences or that this requirement has the effect of generally preventing Haida from using motor vehicles in the course of their hunting activities. This legislation had the effect of preventing this Defendant from hunting by transporting his firearm in a motor vehicle by himself, until he obtained the requisite licence.

It did not prevent Haida, in general, from participating in this activity. [ 27 ] I find that this legislation does not deny the Defendant his preferred means of exercising his right to hunt. I am satisfied that the use of a vehicle to transport the hunter and his firearm to the hunting site may very well be a preferred means of exercising the right to hunt, as that term is understood. However, the defendant has simply not been prevented from using that means, it has only been limited by conditions that I have found are both reasonable and do not impose an undue hardship.

[ 28 ] The Defendant also made submissions to me on the issue of whether the Crown could justify the infringement of the Defendant’s right to hunt.

Although that issue does not properly arise until after I have made a determination of whether or not there has been an infringement, there are two aspects of the submissions made on that topic which I believe also touch on the considerations of whether or not there is an infringement. [ 29 ] The Defendant submits that the legislative objective of section 94(1) of the Criminal Code is to protect the community (in particular, urban area where gun use is more commonly associated with criminal activities) from the unsafe use of firearms and the use of firearms in furtherance of criminal activities.

The Defendant submits that this legislative objective does not apply to the Defendant’s exercise of his aboriginal right to hunt on Haida territory. The Defendant further submits that, in imposing this legislation, with this objective, upon the Haida, the government failed in its duty to engage in adequate consultation with the Haida Nation prior to enacting the legislation. [ 30 ] These arguments could be seen as relating to the reasonableness of the provisions when applying the three part Sparrow test that I have previously set out.

In that context, I do not accept that the legislative objective does not have equal validity in the rural area of Haida territory. It is certainly possible that, in urban areas, firearms are more likely to be used in the commission of crimes. There are fewer legitimate uses for firearms in urban areas. However, the greater degree of legitimate use of firearms in rural areas makes it all the more important that those persons who possess and use firearms in rural areas have the training and knowledge to use them safely.

The imposition of these restrictions in rural areas is as reasonable as their imposition in urban areas. [ 31 ] With respect to the government’s obligation to consult the Haida Nation before imposing legislation that infringes upon its aboriginal rights, I have two comments. Firstly, when the government imposes legislation that impacts on all citizens, I do not take it that they have an obligation to consult the Haida specifically any more than they must consult any other group.

The Haida must be consulted when their rights, as opposed to the rights of all citizens, are being affected. [ 32 ] Secondly, to the extent that an aboriginal right was affected, if at all, the government had an obligation to consult with all of those parties affected. I take it as acknowledged by the government that this legislation did have some potential effect on aboriginal hunting rights in general. Cases that established that this legislation could impact on that right were the impetus for the formulation of the Adaptation Regulations and the fee waiver provisions in the Firearms Fees Regulations .

Clearly, the creation of those regulations could affect the rights of Haida hunters. Equally, they affected the rights of aboriginal hunters everywhere in this country. The obligation of the government to consult regarding their creation was not an obligation to consult with the Haida specifically, but with aboriginal groups generally, and I have no evidence that that was not done.

To the extent that an initial failure to consult regarding the Firearms Act could cause these provisions to be seen as unreasonable, I am satisfied that the subsequent passage of the Adaptation Regulations has cured any initial problem. [ 33 ] In the result, I find that the Defendant has not demonstrated that there is any possibility that the infringement of an aboriginal right might be made out if I permit the Defendant to call evidence on that issue.

On the facts as they came out in evidence at the trial, and with the additional facts that the Defendant says that he thinks he can establish, there will be no infringement of the Defendant’s right to hunt, contrary to Section 35 (1) of the Charter , which will constitute a defense to the offence which I found Mr. Sjolund to have committed. In that circumstance, the Defendant’s application to call further evidence on that issue is dismissed. ______________________________________ H. J. Seidemann, III Provincial Court Judge