Her Majesty the Queen - v. -, 2014 SKPC 180

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 180 Date: October 28, 2014 Information: 24542281 Location: Punnichy _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lloyd Samuel Justin McNab Appearing: Ryan Snyder For the Crown David Andrews, Q.C. For the Accused JUDGMENT J.A. PLEMEL , J INTRODUCTION [ 1 ] Mr. McNab was stopped by RCMP Constable Sackney while driving on a road, referred to locally as Pratt Road, on Gordon’s First Nation (Gordon’s).

He was disqualified from driving at the time by reason of an order pursuant to section 259(1) of the Criminal Code and was charged accordingly contrary to section 259(4) of the Criminal Code .

ISSUE [ 2 ] The only issue is whether or not the Crown has proven beyond a reasonable doubt that the location where he was driving was a street, road, highway or other public place as those words are used in section 259(1) . If it has, then a licence to drive was required and he is guilty of the offence. If it has not, then no licence was required and he is not guilty. THE EVIDENCE [ 3 ] With the consent of the Crown and Defence, the evidence of Richard Hordos and Elwood Bitternose which was given on another trial was applied to this one.

In addition, the Crown called Constable Sackney. [ 4 ] Pratt Road runs east and west on Gordon’s. As it leaves the west boundary of the First Nation it continues on as a municipal road (the municipal extension) until it intersects with Provincial Highway Number 6. On its east end it intersects with the 640 Grid, which is a major gravelled grid road running north and south through Gordon’s but also extending far south and north of the First Nation. The 640 Grid and Highway 6 are roads or highways on which every driver requires a licence to drive.

Counsel do not suggest otherwise. [ 5 ] Pratt Road and the municipal extension are in effect one road but built and maintained by two distinct authorities namely the Gordon’s Band and the local municipality. The speed limit on the municipal extension is 80 kilometres an hour. There is a sign as one enters Gordon’s on this road indicating a speed limit of 60 kilometres an hour and asking drivers to exercise caution and watch for children. There are no signs restricting entry to Gordon’s or limiting the use of the road to only First Nation’s residents.

A driver could, however, travel east on the municipal extension and turn north or south on other grid roads before coming to the First Nation. [ 6 ] Mr. Bitternose, a resident of Gordon’s who testified for the Defence, knew something about the history of Pratt Road. It used to be a wagon trail but it has since been built up by the Gordon’s Band which also maintains it. It was built up to allow families on Gordon’s to send their children to school in Punnichy, a community located off the First Nation, several miles north along the 640 Grid. In the early 1970s only two First Nation families lived along this road.

Now Mr. Bitternose estimates there may be 15. I understand from the evidence that all homes along Pratt Road are homes of residents of Gordon’s. There are no public services such as stores, schools or service stations along the road. Mr. Bitternose also testified that the municipal extension and Pratt Road have somewhat different ditches from each other due to the way in which each was constructed. [ 7 ] Mr. Bitternose described Pratt Road and the municipal extension as a secondary usage road connecting Highway 6 to the 640 Grid.

He testified that there are two other east-west roads which serve this purpose and which more people use. One is called Mission Lake Road which is just north of Gordon’s. The other is called Touchwood View Road which runs through Gordon’s connecting Highway 6, crossing the 640 Grid and continuing on east to Highway 35. I note here that Mr. Bitternose gave his testimony on March 11, 2014.

At the time his evidence was applied to this trial on September 9, 2014, one of these more prominent roads had flooded and the evidence of Constable Sackney, which was given on the latter date, was that there was likely more traffic on Pratt Road as a result. [ 8 ] I am satisfied that a motorist travelling onto Gordon’s from the municipal extension, would notice little if any difference in the road surface, width and maintenance between the extension and Pratt Road. Two vehicles are able to meet or pass on the road whether on or off the First Nation. [ 9 ] Mr. Hordos testified for the Crown.

He farms land adjacent to and west of Gordon’s along the municipal extension. He uses the municipal road and Pratt Road to get over to the 640 Grid to go to Punnichy or occasionally to turn south on the 640 Grid to go to the store on Gordon’s. He testified that some of his family members who farm in the area also use Pratt Road. Mr. Hordos has met others while travelling on Pratt Road, though for the most part they are residents of Gordon’s First Nation. [ 10 ] Mr. Bitternose acknowledged that Pratt Road is used not only by residents of Gordon’s but also by non-residents.

Motorists use it to come onto Gordon’s to access the 640 Grid. He stated that when farmers in the area use it with farm trucks it has caused the

band some concerns as the trucks “chew up” the road. However, he states, it is more important for the band to keep good relations withthe farmers in the area than to argue about the ruts. POSITION OF THE PARTIES [11] The Crown contends that Pratt Road is a street, road, highway or other public place where Mr. McNab required a licence todrive. [12] The Defence counters that the public does not have a right of access to Pratt Road and as such, Mr. Pratt did not require alicence to drive there. They point out that the

section 2 definition of highway in the Criminal Code only includes a road to which thepublic has a right of access. THE LAW [13] The Crown must prove its case beyond a reasonable doubt. This includes proving that Pratt Road is a street, road, highway orother public place. [14] A number of cases discuss what is meant by “public place” and “right of access” when dealing with roads on First Nations.

Ihave considered the following Saskatchewan cases: R v Johns (No. 2), (SK KB), [1963] 45 WWR 65, 41 CR 380 (SaskDist Ct); R v Bigeagle, (SK CA), [1978] 6 WWR 65, 43 CCC (2d) 528 (Sask CA) [Bigeagle]; Gordon v R, (SK KB), [1984] 6 WWR 285, 35 Sask R 269 (QB); R v Thunderchild (1995), (SK KB), 136 Sask R295 (WL) (QB) [Thunderchild]; R v Bigstone, 2003 SKPC 185, 242 Sask R 254; R v Fiddler, 2004 SKQB 113, 247 Sask R 47 [Fiddler]. I have also considered cases from other provinces filed by counsel either in this trial or in the earlier one in which Mr.

Hordos and Mr.Bitternose initially testified. [15] I accept Zarzeczny J.’s comments in Fiddler in paragraph 23. Whether or not a road on a First Nation is a “public road” is aquestion of fact which must be determined on the evidence proven in each case.

He goes on to state that “... a road open to the public ascontemplated by the legislation means a road to which the public generally have access and not one that has been constructed for the useand benefit of a special group.” A road to which only the residents of the First Nation, a limited class, have access is not a street, road,highway or other public place in cases such as this. [16] Furthermore, I also accept comments made in Thunderchild and conclude that if the only other persons using Pratt Road werethose providing services to the residents of Gordon’s, such as peace officers, teachers, health care workers or other service providers,then it would not be a street, road, highway or other public place. [17] In applying the law as interpreted in this province, I find Pratt Road to be a street, road or highway within the meaning ofsection 259(1) of the Criminal Code of Canada.

As such, Mr. McNab was required to have a valid licence to drive there. Certainly PrattRoad was built and is maintained by the band primarily for band members. It is also used for the most part by band members. However, it is open to and frequently used by members of the general public including persons who are not residents and not serviceproviders of Gordon’s First Nation. The road is used by people passing through to go to or from the 640 Grid for business or otherpurposes both on and off the First Nation. This is the evidence both of Mr. Hordos and Mr.

Bitternose and is supported by the evidenceof Constable Sackney. CONCLUSION [18] Therefore, the Court finds Mr. McNab guilty of the offence charged.

J.A. Plemel, J