R v Big River First Nation, 2019 SKCA 117

Court of Appeal for Saskatchewan Docket: CACR3116 Citation: R v Big River First Nation , 2019 SKCA 117 Date: 2019-11-08 Between: Big River First Nation Appellant (Respondent) And Her Majesty the Queen Respondent (Appellant) Before: Jackson, Barrington-Foote and Tholl JJ.A. Disposition: Leave to appeal granted; appeal dismissed Written reasons by: The Honourable Mr. Justice Barrington-Foote In concurrence: The Honourable Madam Justice Jackson The Honourable Mr.

Justice Tholl On Appeal From: 2018 SKQB 109 , Prince Albert Appeal Heard: March 6, 2019 Counsel: Bradley Mitchell for the Appellant Stephen Jordan for the Respondent Barrington-Foote J.A. I. Introduction [ 1 ] The appellant, Big River First Nation [BRFN], is a “band” within the meaning of the Indian Act , RSC 1985, c I-5 . On November 15, 2016, BRFN pled guilty to the following

summary conviction offence in the Provincial Court of Saskatchewan: On or about the dates between 7th November 2014 and 8th day of March 2015 at Big River First Nation near Debden in the Province of Saskatchewan did unlawfully fail to comply with an Environmental Protection Compliance Order, contrary to subsection 238(1) of the Canadian Environmental Protection Act, 1999 thereby committing an offence contrary to paragraph 272(1) (

a) of the Canadian Environmental Protection Act, 1999 . [ 2 ] On July 14, 2017, the sentencing judge found that BRFN is an “individual” within the meaning of s. 272 of the Canadian Environmental Protection Act, 1999 , SC 1999, c 33 [ CEPA ], and imposed a $10,000 fine: R v Big River First Nation , 2017 SKPC 16 [sentencing decision]. The Crown appealed to the Court of Queen’s Bench for Saskatchewan.

On April 5, 2018, a judge of that Court [appeal judge] found that BRFN is a “person” within the meaning of s. 272 of CEPA and substituted a sentence of a $100,000 fine: R v Big River First Nation , 2018 SKQB 109 [QB decision]. [ 3 ] BRFN has appealed the QB decision. For the reasons that follow, I would grant leave to appeal and dismiss the appeal. II. Background [ 4 ] The Miami Gas Bar is owned and operated by and located on lands reserved to BRFN.

In 2011, Environment and Climate Change Canada [ECCC] officers identified a number of violations relating to the fuel storage tanks and piping, and the lack of inspection records and an emergency plan. As the deficiencies were not remedied, an Environmental Protection Compliance Order [order] was issued October 8, 2014, specifying the measures to be taken and the deadlines to complete them. BRFN did not complete two of those measures – the preparation of an emergency plan and documentation to prove compliance – resulting in the charge pursuant to s. 272(1) (

a) and the guilty plea. [ 5 ] At the sentencing hearing, the parties disagreed as to whether BRFN should be classified as an “individual” or a “person” for the purpose of sentencing. That distinction is important because s. 272 of CEPA provides that for a first offender, an individual is subject to a $5,000 minimum sentence, while a person is subject to a $100,000 minimum sentence: 272

(1) Every person commits an offence who (

a) contravenes … subsection 238(1); …

(2) Every individual who commits an offence under subsection (1) is liable, … (

b) on

summary conviction, (

i) for a first offence, to a fine of not less than $5,000 and not more than $300,000 or to imprisonment for a term of not more than six months, or to both, and

(ii) for a second or subsequent offence, to a fine of not less than $10,000 and not more than $600,000 or to imprisonment for a term of notmore than six months, or to both.

(3) Every person, other than an individual or a corporation referred to in subsection (4), that commits an offence under subsection (1) isliable, … (

b) on

summary conviction, (

i) for a first offence, to a fine of not less than $100,000 and not more than $4,000,000, and (ii) for a second or subsequent offence, to a fine of not less than $200,000 and not more than $8,000,000. [6] The sentencing judge held that an Indian Act band [First Nation] is a sovereign nation, not a natural person or a corporation. Itwas his view that only a corporation can be a legal person and that a band must accordingly be an individual. [7] As to sentence, the sentencing judge applied ss. 287 and 287.1 of CEPA, which specify the principles and purposes ofsentencing.

He noted that BRFN had attempted to comply with the order and that the failure to comply related to paperwork anddocuments, rather than failing to deal with the inadequacies in storage tanks, underground piping, and containment areas for oil spills. Inhis view, the seriousness of the offence was at the lower end of the spectrum. However, he also commented as follows: [35] … Ignoring a potential hazard such as this could lead to the contamination of a community’s precious resources, given that thecommunity has a finite space in which it has access to water and other resources provided by the land.

In essence, a fine is not onlyappropriate here, but is minimal in relation to the potential cost posed by any future environmental damage. Therefore it is essential thatthe offender is deterred from any conduct that may increase risk to their own environment. [8] The sentencing judge concluded that the minimum fine of $5,000 was unreasonable in light of the seriousness of the offence,but that a large fine would place unnecessary hardship on a community such as BRFN and would damage innocent BRFN members.

Heimposed a fine of $10,000, noting that the BRFN land base “will always be the same size, and any destruction of its land and/or water …will be devastating for future generations” (sentencing decision at para 39). III. The Decision Under Appeal [9] The Crown appealed the sentencing decision to the Court of Queen’s Bench. The appeal judge noted that s. 272(2)(b)provided that an individual could be imprisoned, and that only a natural person could be incarcerated. He reasoned that, conversely,someone who cannot be incarcerated is not an individual.

As such, he concluded that BRFN “must, not only by default but also by theclear and unambiguous wording of s. 272(2) and (3), be a ‘person’” (at para 20). [10] The appeal judge then considered whether this

interpretation was in harmony with the scheme of CEPA, the object of CEPAand the intention of Parliament. He noted that s. 3 of CEPA defines “aboriginal government” and “aboriginal land”, and recognizes in ss.95, 169 and 179 when aboriginal governments can make laws and in s. 205 when they have the status of a public authority; but thatParliament did not recognize “this distinction” in relation to sentencing.

Finally, having cited s. 2 of CEPA to ascertain the purpose ofCEPA and the intention of Parliament in enacting it, he found that interpreting “person” to include BRFN was harmonious with thatpurpose and that intention. [11] In the result, the appeal judge found as follows: [29] Reading the words found in CEPA and, in particular, those found in s. 272 in their entire context and in their grammatical andordinary sense harmoniously with the scheme and object of CEPA and the intention of Parliament I conclude that the learned sentencingjudge erred in principle when he interpreted s. 272 of CEPA.

That error affected the sentence pronounced. [30] I conclude that the respondent was a “person” within the meaning of s. 272 of CEPA. [12] The appeal judge, having noted that the Crown did not seek a sentence above the $100,000 minimum specified in s. 272(3)(b)(i), imposed a fine in that amount.

He did not consider whether the fine should be reduced pursuant to s. 273, which is as follows: The court may impose a fine that is less than the minimum amount provided for in subsection 272(2), (3) or (4) or 272.4(2) or (3) if it issatisfied, on the basis of evidence submitted to the court, that the minimum fine would cause undue financial hardship. The court shallprovide reasons if it imposes a fine that is less than the minimum amount provided for in any of those subsections. IV. Grounds of Appeal, JURISDICTION and Standard ofReview [13] This appeal from the decision of a

summary conviction appeal court is pursuant to s. 839 of the Criminal Code, which providesfor an appeal with leave on grounds involving a question of law alone. As Vancise J.A. said in R v Thue (1995), (SKCA), 134 Sask R 187 (CA), this Court may consider a sentence appeal only if the sentence is illegal, or there is an error of law that is sobound up with the sentence as to be inherent in it: see also R v Nistor, 2010 SKCA 62, 350 Sask R 238; and R v Nordstrom, 2014 SKCA124, 446 Sask R 270. The standard of review as to errors of law is correctness. [14] BRFN appeals the decision of the appeal judge in relation to sentence on the following grounds:

(

a) Did the appeal judge err in law by finding that BRFN is a “person” within the meaning of s. 272 of CEPA? (

b) Did the appeal judge err in law by failing to consider s. 273 of CEPA? [15] Both of these grounds raise questions of law alone that are so bound up with the sentence as to be inherent in it. Those questionshave significance beyond the four corners of the case: R v Bray, 2017 SKCA 17 at para 2. I would accordingly grant leave to appeal inrelation to both grounds. V. Analysis A. Principles of statutory

interpretation [16] As in every case involving the

interpretation of a statute, s. 272 of CEPA must be interpreted in accordance with the modernprinciple of statutory

interpretation adopted in Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 SCR 27 at para 21[Rizzo]. That is: … the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme ofthe Act, the object of the Act, and the intention of Parliament. … [17] Further, s. 12 of the

Interpretation Act, RSC 1985, c I-21, applies: Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and

interpretation as best ensures theattainment of its objects. [18] BRFN submits that the meaning of “person” in s. 272 is ambiguous. On that basis, it claims the benefit of the common lawpresumption in favour of strict construction of penal statutes. BRFN relies in this context on the oft-cited decision in Bell ExpressVuLimited Partnership v Rex, 2002 SCC 42, [2002] 2 SCR 559 [Bell ExpressVu], where Iacobucci J. said this: 26 … Driedger’s modern approach has been repeatedly cited by this Court as the preferred approach to statutory

interpretation acrossa wide range of interpretive settings … … 28 Other principles of

interpretation – such as the strict construction of penal statutes and the “Charter values” presumption – onlyreceive application where there is ambiguity as to the meaning of a provision. … [19] The strict construction presumption was described by Lamer C.J.C. in R v McIntosh, (SCC), [1995] 1 SCR686: 38 … the overriding principle governing the

interpretation of penal provisions is that ambiguity should be resolved in a manner mostfavourable to accused persons. … [20] It must be kept in mind that “ambiguity” in this context does not mean ambiguity based on the grammatical and ordinary senseof the words, without considering the scheme of the Act, the object of the Act, and the intention of Parliament. Rather, and as Dickson J.(as he then was) said in Marcotte v Deputy Attorney General of Canada, (SCC), [1976] 1 SCR 108 at 115, it must be a“real” ambiguity.

Justice Iacobucci explained this principle in Bell ExpressVu: 29 What, then, in law is an ambiguity? To answer, an ambiguity must be “real” (Marcotte, supra, at p. 115). The words of theprovision must be “reasonably capable of more than one meaning” (Westminster Bank Ltd. v. Zang, [1966] A.C. 182 (H.L.), at p. 222, perLord Reid). By necessity, however, one must consider the “entire context” of a provision before one can determine if it is reasonablycapable of multiple

interpretations. In this regard, Major J.’s statement in CanadianOxy Chemicals Ltd. v. Canada (Attorney General), (SCC), [1999] 1 S.C.R. 743, at para. 14, is apposite: “It is only when genuine ambiguity arises between two or moreplausible readings, each equally in accordance with the intentions of the statute, that the courts need to resort to external interpretive aids”(emphasis added), to which I would add, “including other principles of

interpretation”. 30 … It is necessary, in every case, for the court charged with interpreting a provision to undertake the contextual and purposiveapproach set out by Driedger, and thereafter to determine if “the words are ambiguous enough to induce two people to spend good moneyin backing two opposing views as to their meaning” (Willis, supra, at pp. 4-5). (Emphasis in original) [21] Ruth Sullivan, in Sullivan on the Construction of Statutes, 6th ed (Markham, Ont: LexisNexis, 2014) at 485–487 [Sullivan],criticizes this approach to ambiguity and presumptions.

In her view, it “falsely presumes that legal norms do not form part of the context inwhich legislation is drafted and read” and is inconsistent with the test adopted in Rizzo, as that test eliminated the need to distinguish plainfrom ambiguous texts. Although these criticisms have a certain doctrinal appeal, the Bell ExpressVu approach has been affirmed by theSupreme Court of Canada and by this Court: see, for example, R v Clarke, 2014 SCC 28 at para 12, [2014] 1 SCR 612; R v D.L.W., 2016SCC 22 at para 138, [2016] 1 SCR 402; Canada 3000 Inc. (Re); Inter-Canadian

(1991) Inc. (Trustee of), 2006 SCC 24 at para 84, [2006]1 SCR 865; and Holtby-York v Saskatchewan Government Insurance, 2016 SKCA 95 at paras 23–24, [2016] 11 WWR 655. Further, thereis a sound argument that the Bell ExpressVu approach more fully respects Parliament’s direction to interpret all enactments in accordancewith the principles specified in s. 12 of the

Interpretation Act.

[22] In R v Jaw, 2009 SCC 42, [2009] 3 SCR 26, which related to ambiguity in a jury charge, LeBel J. made the following obitercomments, which reflect a slightly different take on what a court should do when ambiguity is found to exist: [38] … I have reservations about the proposition that any uncertainty in a charge must, as a matter of course, be resolved in favour ofthe accused. This proposition seems to be based on the strict constructionist approach to interpreting penal legislation that developed inthe eighteenth century, when criminal law sanctions were especially severe.

By the mid-1980s, however, the presumption of a restrictiveinterpretation of penal statutes had started to wear thin (R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at pp. 472-74).A restrictive

interpretation may be warranted where an ambiguity cannot be resolved by means of the usual principles of

interpretation.But it is a principle of last resort that does not supersede a purposive and contextual approach to

interpretation. (R. v. Paré, (SCC), [1987] 2 S.C.R. 618; R. v. Chartrand, (SCC), [1994] 2 S.C.R. 864, at pp. 881-82; R. v. Mac, 2002 SCC 24, [2002]1 S.C.R. 856, at para. 4). Even if the impugned statement in the instant case did disclose a true ambiguity, an attempt would first have tobe made to resolve it by resort to general principles and methods of

interpretation. … (Emphasis in original) [23] This “last resort” formulation – including the notion of attempting to resolve ambiguities by resorting to general principles andmethods of

interpretation – was cited with approval in Re:

section 487.02 of the Criminal Code, 2019 NLCA 6 at para 33, and in Bodnar vCommunity Savings Credit Union, 2018 BCCA 121 at para 23, 421 DLR (4th) 620. See also Sullivan at 496–497. It is not clear what afurther resort to “general principles and methods of

interpretation” might entail, given that ambiguity can be found to exist only after thecontextual and purposive analysis required by the modern principle and s. 12 of the

Interpretation Act has taken place. B. Did the appeal judge err in law by finding that BRFN is a “person” withinthe meaning of s. 272 of CEPA? 1. What is a person? [24] Turning now to the application of these principles to this case, I would first note that it is clear that the word “person” in s. 272refers to both human beings and entities other than human beings.

Section 35 of the

Interpretation Act provides that in every enactment,“person” includes a corporation.

Section 272 of CEPA is consistent with that definition. Section 272(1) says that “[e]very person commitsan offence” who commits any of the acts or omissions listed in that subsection. Section 272(2) says that “[e]very individual who commitsan offence under subsection (1)” is liable to the penalties listed in subsection (2). Section 272(3) says that “[e]very person, other than anindividual or a corporation referred to in subsection (4)” is liable to the penalties listed in subsection (3).

The term “person” accordinglyincludes corporations – including “small revenue corporations” within the meaning of s. 272.3 – and individuals. [25] BRFN did not suggest it does not fall within the scope of s. 272. It pled guilty to this offence. Further, it is common groundbetween the parties – and I agree – that a First Nation is not a corporation: see Montana Band v Canada, (FC), [1998] 2FC 3 (WL) at para 20 [Montana Band]; and Cowessess First Nation No. 73 v Phillips Legal Professional Corporation, 2018 SKQB 156 atpara 98 [Cowessess].

The issue is not whether a First Nation is a corporation, but whether it is an individual, or a person other than anindividual. [26] There is no general definition of “person” in CEPA. However, CEPA contains two helpful

definitions which suggest that“person” includes entities other than individuals and corporations. Section 14(2) confirms that Her Majesty in right of Canada and theMinister are persons. The Crown is not an individual or a corporation: see, for example, Kachkar (Re), 2014 ONCA 250 at para 42, 309CCC (3d) 1. [27] Further, s. 295 of CEPA, which defines certain terms for the purposes of ss. 296 to 309, provides as follows: person includes individuals, Her Majesty in right of Canada or of a province and public bodies, bodies corporate, societies and companies. Sections 296 to 309 deal with alternative measures.

Section 296(1) provides that “alternative measures may be used to deal with a personwho is alleged to have committed an offence under this Act” (emphasis added). BRFN was charged pursuant to s. 272(1)(a). Althoughalternative measures are not available for a person who is alleged to have offended by failing to comply with an order, they are availablein relation to many other offences listed in s. 272(1)(a). The fact that the definition of “person” in s. 295 refers separately to individuals,bodies corporate, companies and public bodies suggests that those terms have different meanings.

That, in turn, supports the conclusionthat “person” in s. 272(1) includes “public bodies” that are neither bodies corporate nor individuals. [28] The term “public body” is well known to the law. It is commonly used in federal statutes, in a fashion that confirms it is notlimited to corporations: see, for example, the definition of “organization” in s. 2 of the Criminal Code and the definition of “governmentalentity” in s. 270 of the Income Tax Act, RSC 1985, c 1 (5th Supp).

It is also used in that fashion in provincial statutes: see, for example, thedefinition of “public body” in the Freedom of Information and Protection of Privacy Act, RSBC 1996, c 165, Sch 1; the definition of“public body” in s. 1 of the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25; and the definition of “public body”in s. 3 of The Electronic Information and Documents Act, 2000, SS 2000, c E-7.22. [29] Further, mandamus and certiorari are available only as against public bodies that have the authority to make a decision or astatutory duty.

As Beetz J. said in Harelkin v University of Regina, (SCC), [1979] 2 SCR 561 at 593: … I believe the correct view was expressed by O’Halloran J. in The King ex rel. Lee v. Workmen’s Compensation Board, (BC CA), [1942] 2 D.L.R. 665 at pp. 677–678, dealing with mandamus but equally applicable to certiorari: Once it appears a public body has neglected or refused to perform a statutory duty to a person entitled to call for its exercise,then mandamus issues ex debito justitiae, if there is no other convenient remedy ...

[30] In Martineau v Matsqui Institution Disciplinary Board, (SCC), [1980] 1 SCR 602 at 622–623, Dickson J. (ashe then was) said this: In my opinion, certiorari avails as a remedy wherever a public body has power to decide any matter affecting the rights, interests,property, privileges, or liberties of any person. Many statutory decision-makers are neither individuals nor corporations. A band council is a useful example in this context. [31] There is also support for the proposition that the council of a First Nation is a public body.

In Westbank First Nation v BritishColumbia Hydro and Power Authority, (SCC), [1999] 3 SCR 134 [Westbank], for example, the Court consideredwhether B.C. Hydro, an agent of the Crown, was subject to charges imposed by a band bylaw passed pursuant to s. 83(1)(

a) of the IndianAct. The Court found that the charges had all of the traditional hallmarks of a tax, including having been imposed by a public body. JusticeGonthier dealt with this issue as follows: 36 The impugned charges are imposed under the authority of the legislature and levied by a public body. The by-laws are imposedpursuant to the power conferred by s. 83 of the Indian Act.

The taxes are levied by the Band Council, under its conferred authority, and areapproved by the Minister of Indian Affairs and Northern Development. [32] Although this reasoning relates to a band council, rather than a band, Conrad J.A., in her dissenting judgment in Horseman vHorse Lake First Nation, 2005 ABCA 15, 248 DLR (4th) 505 (but not on this point), relied on Westbank in concluding that a First Nationis a public body for the purposes of the tort of abuse of public office when it exercises its delegated authority under the Indian Act to addnames to and delete names from the band membership list, which it has in turn delegated to the band council. [33] In my view, a First Nation is also a public body when it exercises its undoubted authority to own property – a power that isexpressly recognized in relation to buildings in s. 81(1)(

h) and in relation to personal property in s. 87(1) of the Indian Act – and to carryon the business of a gas bar: see Mitchell v Peguis Indian Band, (SCC), [1990] 2 SCR 85 at 138, which confirms thatauthority. That is so despite the fact that Reed J. said in Montana Band (adopting J. Woodward, Native Law (Toronto: Carswell, 1990) at397), a First Nation is a different species than any other entity: 21 The nature of a band as a party has been described: The band, as an enduring entity with its own government, is a unique type of legal entity under Canadian law.

The rights and obligations ofthe band are quite distinct from the accumulated rights and obligations of the members of the band. … In law a band is in a class by itself.… This characterization was adopted by Garson J.A. in Kwicksutaineuk/Ah-Kwa-Mish First Nation v British Columbia (Minister ofAgriculture and Lands), 2012 BCCA 193, 351 DLR (4th) 24. [34] The fact a First Nation is a unique form of legal entity does not mean it cannot be a public body, in the sense of being of orconcerning the people as a whole or being of the community, especially in government: see The Oxford English Dictionary, 2d ed.

I notein this context that the Indian Act defines a “band” in s. 2(1) as “a body of Indians” with certain characteristics. It seems self-evident thatthis unique form of “body” is a “public body” and, as such, is caught by s. 295. [35] In the result, s. 295 is a contextual factor that supports the conclusion that a First Nation, being a public body, is a person that isnot an individual for the purposes of s. 272 of CEPA. 2. What is an “individual”? [36] Turning next to the meaning of “individual”, there is no definition of that term in CEPA or the

Interpretation Act. It has, ofcourse, been interpreted in the context of many statutes and, when used as a noun, has generally been interpreted so as to exclude anythingother than a natural person. In R v Stoddart (1987), (ON CA), 37 CCC (3d) 351 (WL) (Ont CA), Tarnopolsky J.A. madethat point: 24 The term “individual” is defined in the Oxford English Dictionary (1933), as “a single human being, as opposed to Society, theFamily, etc.”.

Similarly, Black’s Law Dictionary, 5th ed. (1979), defines the term as follows: As a noun, this term denotes a single person as distinguished from a group or class, and also, very commonly, a private or natural person asdistinguished from a partnership, corporation, or association; but it is said that this restrictive signification is not necessarily inherent in theword, and that it may, in proper cases, include artificial persons. 25 In fact the jurisprudence has been fairly consistent that the term relates only to human beings and does not include corporations:Surrey Credit Union v.

Mendonca (1985), (BC SC), 67 B.C.L.R. 310, 19 C.R.R. 230 at 232 (S.C.); Mund v. MedicineHat (1985), (AB KB), 67 A.R. 11 (Q.B.); Smith, Kline & French Laboratories Ltd. v. Can. (A.G.), (FC), [1986] 1 F.C. 274, 24 D.L.R. (4th) 321 at 365, 7 C.P.R. (3d) 145, 19 C.R.R. 233 (T.D.); Re Homemade Winecrafts (Can.) Ltd. andB.C. (A.G.) (1986), (BC SC), 26 D.L.R. (4th) 468 (B.C.S.C.); Parkdale Hotel Ltd. v. Can. (A.G.), (FC), [1986] 2 F.C. 514, 27 D.L.R. (4th) 19 at 35-37, 1 F.T.R. 190; Re Aluminum Co. of Can. and Ont. (Govt.) (1986), (ON SC), 55 O.R. (2d) 522, (sub nom.

Aluminum Co. of Can. and Ont. (Min. of Environment)) 19 Admin. L.R. 192, 1 C.E.L.R. (N.S.) 1,29 D.L.R. (4th) 583, 25 C.R.R. 50, 16 O.A.C. 14 (Div. Ct.); K Mart Can. Ltd. v. Millmink Dev.

Ltd., (ON SC), 56 O.R.(2d) 422, 11 C.P.C. (2d) 243, 24 C.C.L.I. 139, [1986] I.L.R. 1-2114, 31 D.L.R. (4th) 135 (H.C.). [37] In R v Carroll, 2016 ONCJ 214, Lahaie J. relied on this reasoning in finding that an “individual” within the meaning of s. 5 ofthe Lobbying Act, RSC 1985, c 44 (4th Supp), did not include a corporation, concluding as follows: [45] In my view, if Parliament had intended to allow the corporation who employs an individual working as a consultant lobbyist to filethe return on behalf of the individual, the word “person” would have been used. The

Interpretation Act, R.S.C., 1985, c. I-21, defines

“person” as including a corporation. Instead, Parliament used the word “individual” in section 5(1), which, in my view, is clear andunambiguous language. [38] Rudolf Wolff & Co. v Canada, (SCC), [1990] 1 SCR 695, is also of interest. That case dealt with whetherfederal legislation granting exclusive jurisdiction to the Federal Court to hear claims against the Federal Crown offended s. 15 of theCharter.

Justice Cory made the following observations as to the meaning of “individual” (at 701): With respect to the issue of whether the appellants have received unequal treatment, it must be apparent that the Crown cannot be equatedwith an individual. … Henry J., in my opinion, properly applied the decision in R. v. Stoddart, supra.

I agree with the words of Tarnopolsky J.A., speaking forthe Court in that case, at pp. 362-63, where he stated: The Crown is not an “individual” with whom a comparison can be made to determine a s. 15(1) violation. … the Crown Attorney does not participate in a criminal trial as an “individual”. He participates as a representative of the Crown, which inturn represents the state, i.e. organized society. It will be recalled that the Oxford English Dictionary defines an “individual” as “a singlehuman being”, in contra-distinction to “society”.

Therefore, the accused, as an “individual”, cannot be compared with Crown counsel, asrepresentative of our organized society, for the purpose of a s. 15(1) analysis. (Emphasis added) [39] In Board of Education of School District No. 91 (Nechako Lakes) v Patrick, 2002 BCSC 19, 97 BCLR (3d) 364, relating toLocal Education Agreements between a school district and a First Nation, the Court reached the same conclusion as to the application of s.15 to First Nations.

Justice Garson (as she then was) found as follows: [110] … In my view a band is a representative body, and also a governing body, but a band does not stand in the place of the individualIndian children as argued by the Bands. A band is not a “human being”. … The Band or the Band Council as a party to a Local EducationAgreement is acting in a governing or representative capacity.

In this capacity it is taking on “rights and obligations separate and apartfrom its individual members”. [111] It follows that the Bands and Band Councils are not individuals, and hence s.15(1) of the Charter does not in this case apply tothem. [40]

Section 17 of CEPA also supports the conclusion that an individual is a natural person: 17

(1) An individual who is resident in Canada and at least 18 years of age may apply to the Minister for an investigation of any offenceunder this Act that the individual alleges has occurred.

(2) The application shall include a solemn affirmation or declaration (

a) stating the name and address of the applicant; (

b) stating that the applicant is at least 18 years old and a resident of Canada… 3. Can a First Nation be a juridical person? [41] There is authority for the proposition that a First Nation may fall within the scope of the term “person” in a statute. I note andadopt the following

summary of the law in Cowessess, which confirmed that “person” in s. 67(1) of The Legal Profession Act, 1990, SS1990-91, c L-10.1, included a First Nation: [98] There is ample authority for the proposition that an Indian band – a unique entity that is neither a corporation nor anunincorporated association – has the capacity to assume obligations separate and apart from its individual members: see generally, JackWoodward, Native Law, looseleaf (Rel 4, 2016), vol 1 (Toronto: Thomson Reuters Canada, 2016), at 490.

In Wilson v British Columbia,2007 BCSC 1324, [2008] 5 WWR 746, Johnston J., who found that Indian bands have the capacity to sue and be sued in their own namein British Columbia, helpfully summarized the conclusions reached in certain key decisions relating to the legal capacity of an Indianband: [50] An Indian Band has been considered to be legally capable as: • an employer for the purposes of the Canada Labour Code (see P.S.A.C. v Francis, (SCC), [1982] 2 SCR 72); • a juridical person for the purpose of suing to determine the validity of surrender of reserve lands (see Montana Band v R (FC), [1998] 2 FC 3); • capable of contracting, and suing and being sued in contract (see Clow Darling Ltd. v Big Trout Indian Band (1989), (ON SC), 70 OR (2d) 56 (Ont Dist Ct)); • capable of executing a contract of guarantee (see Telecom Leasing Canada (TLC) Ltd. v Enoch Indian Band of Stony Plain IndianReserve No. 135, (AB KB), [1993] 1 WWR 373 (Alta QB)); • competent to sue and defend actions between Indian bands, to determine which of two bands is entitled to possession and enjoyment of areserve (see Wewayakum Indian Band v Wewayakai Indian Band, (FC), [1991] 3 FC 420 (T.D.)); • competent to sue for a declaration that certain amendments to the Indian Act, R.S.C. 1985, c.

I-5, were unconstitutional (see Sawridge

Band v Canada, 2003 FCT 665 , [2003] 3 CNLR 358 (FCTD)); and • the proper parties to an action commenced by a corporation formed by 7 First Nations to claim aboriginal fishing rights, in place of thecorporation, so that the First Nations were substituted for their corporate vehicle (see Anishinaabeg of Kabapikotawangag ResourceCouncil Inc. v. Canada (Attorney General), (ON SC), [1998] 4 CNLR 1 (Ont Ct J)). [99] That

summary was cited with approval in Kwicksutaineuk/Ah-Kwa-Mish First Nation v Canada (Attorney General), 2012 BCCA193 at para 75, [2012] 8 WWR 47. Garson J.A. there opined as follows: 76 I agree with Johnston J., and for the reasons he gives, in concluding that an Indian Act Band is a juridical person. An Indian Act Bandis a unique entity. It is an enduring, self-governed entity that has distinct rights and obligations: Montana Band v Canada (T.D.), (FC), [1998] 2 FC 3… … [104] In the result, it is my view that an Indian band – which is a juridical person for certain purposes – has the necessary status to be a“person charged with the bill” within the meaning ss. 67(1)(a)(

i) and (iii) of the LPA. The Cowessess First Nation No. 73 is such a legalperson. [42] Although there are cases in which courts have concluded that a First Nation was not a person within the meaning of variousstatutes, it is my view they are distinguishable based on the nature of the legislation at issue: see, for example, the analysis in Cowessess atparas 78, 79, 80, 101 and 102. 4. The purposive analysis of CEPA [43] In the result, the textual analysis weighs heavily in favour of the conclusion that a First Nation is not an individual for purposesof s. 272(1), but a person other than an individual. [44] This

interpretation is also consistent with the purpose of CEPA. CEPA contains the following Declaration, which is prior to thePreamble: It is hereby declared that the protection of the environment is essential to the well-being of Canadians and that the primary purpose of thisAct is to contribute to sustainable development through pollution prevention. [45] The detailed

Preamble that follows confirms and clarifies that primary purpose and the manner in which it will be carried out.These provisions and CEPA as a whole confirm that it is a regulatory statute and not a penal statute. [46] CEPA applies to reserve lands. It also contains mechanisms designed to enable the development of regulations and othermeasures to bridge the regulatory gap between non-reserve lands, where provincial and municipal laws apply, and reserve lands, wherethey do not.

Those mechanisms provide for the participation of and exercise of jurisdiction by aboriginal governments and theincorporation of aboriginal knowledge.

Although it is arguable that the characterization of a First Nation under s. 272 has no relationshipto advancing this purpose, I am of the view that the stiffer penalties applicable to a “person” more effectively serve the fundamentalpurpose of sentencing described in s. 287 of CEPA, which is directly linked to that primary purpose in relation to reserve lands: 287 The fundamental purpose of sentencing for offences under this Act is to contribute, in light of the significant and many threats to theenvironment and to human health and to the importance of a healthy environment to the well-being of Canadians, to respect for the lawprotecting the environment and human health through the imposition of just sanctions that have as their objectives (

a) to deter the offender and any other person from committing offences under this Act; (

b) to denounce unlawful conduct that damages or creates a risk of damage to the environment or harms or creates a risk of harm to humanhealth; and (

c) to reinforce the “polluter pays” principle by ensuring that offenders are held responsible for effective clean-up and environmentalrestoration. [47] It is self-evident that it is important that First Nations, which have broad authority relating to the use and management ofreserve lands, abide by their lawful obligations relating to protection of the environment.

To echo the sentencing judge, the failure by aFirst Nation to be an effective steward of the environment has the potential to be devastating for future generations, as First Nations haveboth limited reserve lands and a unique and abiding relationship to those lands. 5. Conclusion [48] For these reasons, it is my opinion the appeal judge did not err in finding that a First Nation is a person, and not an individual,within the meaning of s. 272 of CEPA. Further, there is no ambiguity in the relevant provisions. As such, I need not deal further with thepresumption in favour of strict construction. C.

Did the appeal judge err in law by failing to consider s. 273 of CEPA? [49] The appeal judge, having found that BRFN was a person, imposed the $100,000 minimum sentence specified in s. 272(3)(b)(i).His reasons did not refer at all to s. 273. I conclude that he did not consider whether the fine should be reduced pursuant to s. 273, which Iwill repeat for the sake of convenience: The court may impose a fine that is less than the minimum amount provided for in subsection 272(2), (3) or (4) or 272.4(2) or (3) if it is

satisfied, on the basis of evidence submitted to the court, that the minimum fine would cause undue financial hardship. The court shall provide reasons if it imposes a fine that is less than the minimum amount provided for in any of those subsections. [ 50 ] BRFN led evidence at the sentencing hearing as to the income and expenses of both BRFN and the gas bar. BRFN submitted it should have the benefit of s. 273 if the sentencing judge found BRFN is a person. The sentencing judge found that a large fine would “unnecessarily cause hardship” to the community.

With respect, in these circumstances the appeal judge was obliged to consider whether a $100,000 fine would cause undue financial hardship and, if so, whether he should impose a lesser fine. The failure to consider the issue was an error of law that was bound up with the sentence. It accordingly falls to this Court to determine a fit sentence. [ 51 ] The sentencing hearing was on November 15, 2016. BRFN was sentenced July 14, 2017. The evidence led by BRFN related to the fiscal years ending in March 2013, 2014 and 2015.

It disclosed that BRFN had revenues of approximately $20,000,000 in each of those years and had an operating surplus of $889,800 in the 2013 fiscal year, a deficit of $1,295,906 in the 2014 fiscal year, and a surplus of $303,584 in the 2015 fiscal year. The accumulated unrestricted surplus at the end of the 2015 fiscal year was $1,211,319. There was no evidence as to BRFN’s financial affairs after March 2015. [ 52 ] This evidence – taking account of both what it discloses and the fact it was not current – could not reasonably support a finding of undue financial hardship.

The word “undue” relates to financial hardship for BRFN . I have no doubt that BRFN has limited financial resources, and that there are many projects, programs and services that BRFN would wish to pursue or provide for the benefit of its members. I also have no doubt there are BRFN members who face great financial hardship. However, the fact that resources are limited and that members have pressing needs does not, based on the financial evidence as a whole, demonstrate that a $100,000 fine would cause financial hardship to the Nation , and certainly could not demonstrate undue financial hardship.

To conclude that there would be undue financial hardship on the basis of the evidence led would constitute speculation. [ 53 ] In the result, the sentence imposed by the appeal judge was correct. VI. Conclusion [ 54 ] For these reasons, BRFN’s appeal is dismissed. “Barrington-Foote J.A.” Barrington-Foote J.A. I concur. “Barrington-Foote J.A.” for Jackson J.A. I concur. “Tholl J.A.” Tholl J.A.