) ) HER MAJESTY THE QUEEN ) N. Carnegie ) for the Crown - v. - ), 2012 MBPC 45

2012 MBPC 45 THE PROVINCIAL COURT OF MANITOBA DAUPHIN CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) N. Carnegie ) for the Crown - and - ) ) CHARLES HENRY BEER ) Self-Represented ) for the Accused Accused. ) ) - and - ) ) JEAN TEILLET and JASON MADDEN ) Moving Party ) Amicus Curiae Applicants ) ) Judgment Delivered: ) April 26, 2012 SLOUGH, P.J. INTRODUCTION [1] On December 13, 2011 I released my Reasons for Decision in R. v. Beer [2011] M.J. No. 405. That decision dealt with thefollowing situation: “On December 29, 2009 natural resource officers, acting on a complaint, went to a

section of Crown land located in the Roblin district ofWestern Manitoba. The officers determined that the defendant in this matter, Charles Beer, had been cutting white spruce without apermit as required by s. 37 of the Forest Act. Further investigation revealed that over the course of two years Charles Beer had harvested145 cubic metres of timber with over 100 cubic metres being harvested in 2009. It is an admitted fact that Charles Beer did not have apermit to harvest timber.

However, Charles Beer, a self-described farmer and woodsman, is a member of the Western Manitoba Métiscommunity and asserts that s. 37 of the Forest Act is of no force and effect as it violates his rights under s. 35 of the Constitution Act,1982. Charles Beer’s argument is in large part based on what he asserts as the lack of government action in implementing a number of judicialdecisions. I will expand on the applicable legal principles later in this judgment but simply stated the legal backdrop is as follows: theSupreme Court of Canada in R. v.

Powley 2003 SCC 43 , [2003] 2 S.C.R. 207 confirmed the existence of the Métis right toharvest. In a 2006 decision R. v. Sappier; R. v. Grey 2006 SCC 54 , [2006] 2 S.C.R. 686 the Supreme Court determinedAboriginal rights included the right to harvest timber for the construction of a dwelling. Until the decision of the Manitoba ProvincialCourt in R v. Goodon [2009] M.J. No. 3 the question of whether or not the Métis in Western Manitoba had Aboriginal rights was amatter of dispute between the Manitoba Government and the Métis community.

The Goodon (supra) decision pronounced on January 8,2009 confirmed the Aboriginal rights of the Métis in Western Manitoba. Included in those rights was the right to harvest timber fordomestic use. Charles Beer maintains that what he characterizes as the government failure to implement and respect these decisions is

the central issue in this case.

While I agree this is a very significant factor in determining the outcome of this case there are other factorswhich need to be weighed in determining the appropriate result, including the nature of the harvest undertaken by Charles Beer; the sitewhere the harvest occurred; and his decision to act unilaterally in undertaking the harvest without seeking a permit or formallychallenging the government regulatory scheme.” [2] After hearing evidence I made a number of findings of fact and indicated that the following issues needed to be resolved: “If I only considered the official policy in December 2009 and the government’s treatment of Métis concerns, I might very well beinclined to declare the permit scheme to be of no force and effect with respect to these charges.

However, to do so might suggest thatMétis harvesters are not currently required to utilize the permit scheme. Given the changes that have occurred I believe the currentscheme is valid so to strike down Charles Beer’s charges sends a confusing message. In addition, I am struggling to determine theweight to be given to the fact Charles Beer deliberately ignored the regulatory scheme and is utilizing a collateral attack on thelegislation in order to avoid legal responsibility.

Having made these conflicting findings, I believe the appropriate step is to reconvene and hear argument from the parties as to theappropriate remedies. The spectrum of remedies at least on a preliminary basis would include declaring the legislation to be of no forceand effect or alternatively a finding of guilt and consideration of the appropriate sentence in view of the conduct of the ManitobaGovernment and Charles Beer up until January 2010.

An additional matter to be dealt with is the disposition of the approximately 145cubic metres of white spruce logs seized from Charles Beer and currently under the control of Manitoba Conservation.” [3] Subsequently, two unexpected events occurred: first on January 13, 2012 lawyers Jean Teillet and Jason Madden advisedthey wished to be appointed as amicus in these proceedings and to make submissions concerning the four conflicting factors I had set outin my decision. By way of background, Ms. Teillet is counsel to the Manitoba Métis Federation and was counsel in the leading casedealing with Métis rights: R. v.

Powley 2003 SCC 43 , [2003] 2 S.C.R. 207. Clearly both she and Mr. Madden having acted asco-counsel in R. v. Goodon [2009] M.J. No. 3 the leading Manitoba case dealing with Métis harvesting bring experience and expertisewith respect to the subject matter of this case. Secondly, on February 8, 2012 the Crown advised that based on the findings made in mydecision of December 13, 2011 it was their intention to ask that the court enter an acquittal. [4] Notwithstanding the Crown's desire to have an acquittal entered Ms. Teillet and Mr. Madden continue to seek appointment asamicus.

On March 28, 2012 arguments were made by counsel with respect to the application for the appointment of amicus and theCrown’s desire to terminate this prosecution. This is my decision with respect to these applications. POSITION OF THE PARTIES Amicus Curiae [5] For the purposes of this hearing the Crown did not dispute the authority of a Judge of the Provincial Court of Manitoba toappoint an amicus. [6] In R. v. Clarke [2009] O.J.

No. 4314 an amicus is defined in the following manner: “15 Generally, an amicus curiae is legal counsel who assists the court, at the court’s request, and is disinterested.2 There is noprecise definition of the role of amicus curiae capable of covering all possible situations. In R. v. Sharma, Rosenberg J.A. for the Courtheld that, “In its ordinary use, the term implies the friendly intervention of counsel to remind the Court of some matter of law which hasescaped its notice and in regard to which it is in danger of going wrong. 16 This is done to ensure the trial process is fair.

Amicus curiae is not legal advisor to the accused.4”

[7] In their materials counsel for the Applicant outline the reasons why the Court ought to appoint amicus in this case in thefollowing manner: “13 The Applicant submits that the unique situation in this case makes the appointment of amicus curiae necessary toadvance the interests of justice based on the following factors:

a) The Court has asked for assistance on the resolution of the outstanding legal constitutional issues;

b) Fairness and the adversarial context requires legal submissions from both the Crown and the Defendant in light of thecomplex constitutional interests at stake, but the Defendant is unrepresented litigant; and

c) The legal and constitutional issue raised by the Court will have broader significance and precedential value in a developingarea of the law.” [8] Counsel further submits that the fact that this case deals with Métis rights is a factor favours the appointment of amicus.

Thisargument is premised on the assertion that: “because a collectively held Métis constitutional right is at issue in this case, having the correct legal answers is critical to providingclarity and consistency in the nascent area of Métis rights law in Manitoba”. [9] At the request of the Court counsel provided a concise outline of the arguments they intended to advance if appointed asamicus. The arguments that would be advanced relate to: 1. The finding that the 2010 Manitoba Conservation policy provides a reasonable accommodation of Métis harvesting rights. 2.

The collateral attack issue. [10] With respect to the 2010 Manitoba Conservation policy counsel assert that policy only provides discretionary exemptions fromthe law on a case by case basis.

They argue: • “These types of policies do not amend the law or regulation, as directed by Goodon, Powley, and other aboriginal jurisprudence forthe Supreme Court of Canada.” • “Second, the Policy does not meet the Crown’s obligations owing to the Métis, which flow from the duty to consult andaccommodate, because the Métis were not consulted on the Policy at all.” • “Third, the Policy has provisions that are arbitrary in nature, resulting in unreasonableness. For example, the Policy purports toapply to Métis persons resident in a “recognized Métis community zone”.

The Policy does not identify these “zones” or provide anydirection to the Métis harvester. Further, the Policy does not explain how a “Métis community zone” is recognized or who defines thesezones.” [11] With respect to the collateral attack issue counsel suggest that Mr. Beer’s conduct did not amount to a collateral attack and thatthe judicial rule against collateral attack is not intended to prohibit constitutional defence to regulatory charges. On the latter point theyrely on the decision of R. v.

Hirsekorn 2011 ABQB 682 at paragraphs 52-53: “52 In light of the trial judgment, I find that it is unclear as to whether the trial judge actually dismissed the Appellant’sdefence on this basis. However, if it is the case, I agree with the parties that the raising of a constitutional defence to a criminal or quasi-criminal charge is not, without more, an impermissible collateral attack. In this case, it was not inappropriate.

Although, in most cases,it may be more efficient to have a case decided in a civil process, there is no legal principle that prevents an accused charged with anoffence from raising an appropriate constitutional defence. The Court is the guardian of the Constitution; if a statute is inconsistent withthe Constitution, the overriding effect of s. 52 of the Constitution Act “is to give the Court not only the power, but the duty, to regard theinconsistent statue, to the extent of the inconsistency, as being no longer ‘of force or effect’: R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295, at 312-316 and 353.

In other words, although many would agree that a civil process is a more suitableand effective way to determine aboriginal rights issues, especially in terms of defining the parameters of the right, it does not mean aconstitutional defence to a criminal or quasi-criminal charge is impermissible. 53 To the extent the trial judge rejected the Appellant’s constitutional defence on the basis that it was an impermissible or

inappropriate collateral attack, he was in error. [ 12 ] In response to the amicus application the Crown argues that once this Court concluded that Charles Beer was properly exercising an Aboriginal right, which right was not accommodated within the legislative and regulatory framework in place on the date of his harvest and that Charles Beer’s harvest came within the parameters of harvesting for a domestic purpose and was consistent with the communal nature of the right Charles Beer should be acquitted.

Given that “appointing counsel as amicus is premised on the existence of a live controversy in respect of which the court may benefit from another perspective” the Crown’s stated intention of asking the Court to enter an acquittal leaves no issue to be dealt with by the Court. Accordingly, there is no need to consider appointing an amicus . [ 13 ] Moreover, the Crown points out that given the fact that Ms. Teillet and Mr. Madden are currently counsel to the Manitoba Métis Federation it cannot be argued that they are disinterested and only appearing to assist the Court.

Rather the Crown asserts this application is more akin to an intervention. The authority of a provincial court to permit an intervention in a

summary conviction trial is to say the least problematic: see R. v. Duncan [1991] B.C.J. No. 3023 p. 16 where the Court concluded “there is no statutory authority for the provincial court to grant intervenor status”. ANALYSIS [ 14 ] It is worth pointing out that with respect to the trial this was not a case where the accused was under represented. Although not a lawyer Charles Beer with the assistance of his wife represented himself in a competent manner. Moreover, Mr.

Carnegie on behalf of the Crown presented the case in a fair and balanced manner making appropriate concessions to ensure the Court could rule on the key issues in this matter. [ 15 ] While I appreciate that there is disagreement with some of the conclusions I reached in my decision it is not my intention to reconsider my findings or hear further argument. Those findings were based on the evidence before me.

If the Manitoba Métis Federation or any other party wish to challenge the current regulatory structure there are appropriate avenues to mount such a challenge. [ 16 ] In my view, the fact the Crown is asking the Court for the reasons previously outlined to enter an acquittal is determinative of the amicus application as there is no live issue to be decided. My duty to the parties is to make a determination with respect to the guilt or innocence of the accused. Accordingly, I am granting the Crown’s request and entering an acquittal. ____________________ Slough, P.J.