Ochapowace Ski Resort Inc., 594265 Saskatchewan Ltd., Ochapowace Band v. Denton George, 2022 SKCA 58

Court of Appeal for Saskatchewan Docket: CACR3222 Citation: R v Ochapowace Ski Resort Inc., 2022 SKCA 58Date: 2022-05-12 Between:Ochapowace Ski Resort Inc., 594265 Saskatchewan Ltd., Ochapowace Band and Denton GeorgeAppellants (Appellants)AndHer Majesty the QueenRespondent (Respondent)Before: Richards C.J.S., Schwann and Tholl JJ.A.Disposition: Appeal dismissedWritten reasons by: The Honourable Madam Justice SchwannIn concurrence: The Honourable Chief Justice Richards The Honourable Mr.

Justice ThollOn appeal from: 2019 SKQB 5, YorktonAppeal heard: June 8, 2021Counsel: Mervin Phillips and Leane Phillips for the Appellants Wade McBride, Q.C., for the Respondent Schwann J.A. I. INTRODUCTION [1] Ochapowace Ski Resort Inc. [Ski Resort] operated a ski hill on the Ochapowace reserve [Reserve] in the 1980s and 1990s.

Itsrefusal to collect and remit the federal goods and services tax [GST] from non-Indigenous patrons of the ski hill from 1991 to mid-1997,or to allow for an audit in relation to such matters to be conducted, led to a 15-count information being laid against the Ski Resort, 594265Saskatchewan Ltd. [594265], Ochapowace Band [First Nation] and Chief Denton George [collectively, the Appellants] pursuant to ademand issued under s. 282 of the Excise Tax Act, RSC 1985, c E-15, contrary to s. 326 of the said Act. [2] The Appellants vigorously defended those charges in the Provincial Court.

Among other defences advanced at trial, theAppellants argued that Indian bands are independent self-governing nations that exercise sovereignty in matters of governance that wasnot lost by Treaty. The Appellants adduced considerable evidence from Elders and experts on the subject to substantiate their position.

Thetrial judge rejected the argument that the requirement to collect and remit tax was a breach of an Aboriginal or treaty right, or that the lawrecognized self-governance in a way that would exempt the Appellants from collecting and remitting the tax for another government. [3] In a written decision rendered on September 12, 2002, the Provincial Court judge who heard the matter [trial judge] found theFirst Nation and Chief George guilty of 7 of the 15 counts but stayed the charges against 594265 and the Ski Resort at the Crown’srequest. See 2002 SKPC 84, [2003] 2 WWR 713 [Trial Decision].

Chief George and the First Nation were each sentenced to a fine of$7,000 and directed to file GST returns within 90 days from the date of sentencing pursuant to the terms of a compliance order. [4] On November 18, 2002, the Appellants appealed the Trial Decision to the Court of Queen’s Bench. Fifteen years later, inApril of 2017, the Crown applied pursuant to s. 825 of the Criminal Code to dismiss that appeal for want of prosecution. The Queen’sBench judge [QB judge] who heard the application agreed with the Crown’s submissions and dismissed the Appellants’ appeal.

See 2019SKQB 5 [Dismissal Decision]. [5] The Appellants seek leave to appeal the Dismissal Decision under s. 839 of the Criminal Code. An appeal under this provisionis limited to questions of law, with leave of the Court. Among other things, the Appellants assert the QB judge committed numerous errorsof both fact and law that warrant this Court’s intervention. For the reasons set out below, I would grant leave but dismiss the appeal. II.

BACKGROUND [6] The Appellants filed a notice of appeal from the Trial Decision with the Court of Queen’s Bench on November 18, 2002.When the Appellants took no meaningful steps to perfect their appeal, the Crown applied in February of 2004 to have it dismissed for wantof prosecution.

At the request of the Appellants, the Crown’s application was adjourned. [7] In 2004, the Appellants applied to the Court of Queen’s Bench for an order directing the preparation of the trial transcripts inthe language spoken by the witnesses (Cree and Saulteaux) and for the Attorney General of Canada to pay for the cost of the translationand transcription services. Both applications were dismissed.

However, the Queen’s Bench judge who heard the matter directed theProvince of Saskatchewan to use its best efforts to cure numerous deficiencies in the transcript arising from the failure to properlytranscribe certain Cree and Saulteaux words, including the names and phrases used by the witnesses. On appeal to this Court, it wasdetermined that, being an interlocutory order, the Appellants had no right of appeal and if they wished to pursue the transcript issue, theycould do so when the case was dealt with on its merits. See 2007 SKCA 88, [2007] 9 WWR 226, leave to appeal to SCC refused, .

[8] Thereafter, issues concerning discrepancies or corrections to the trial transcript were to be addressed in the Court of Queen’sBench. That occurred between October 17, 2008, to June 23, 2009. According to the record, nothing further occurred in the Court ofQueen’s Bench from June 23, 2009, to February 13, 2011.

On February 14, 2011, a Queen’s Bench judge issued a concluding fiat thatconfirmed the following state of affairs: “the transcript of evidence at trial will be the transcript prepared by Transcript Services” except asamended by the corrections identified in the February 9, 2011, affidavit of Sharon Venne. [9] Some correspondence passed between the parties in 2011 touching on such things as who would have carriage of the file forthe Crown, suggestions for further amendments to the transcript and so forth.

By email dated December 15, 2011, the Crown advised theAppellants’ legal counsel that Doug Curliss, Q.C. would handle the appeal for the Crown and on January 30, 2012, Mr. Curliss wrote tothe Appellants’ legal counsel seeking confirmation that the transcript issues had been resolved. [10] From January of 2012 until the Crown’s 2017 dismissal application, the Appellants took minimal, if any, steps to perfect theirappeal. What follows is a brief

summary of the key events: (

a) February 22, 2012 – The Appellants’ legal counsel asked Mr. Curliss if the Crown was prepared to argue its application basedon “the present state of the transcript”. (

b) January 29, 2013 – The Appellants’ legal counsel informed Mr. Curliss that their “memorandum preparation is nearingcompletion and we will seek to provide same to you on or before the first week of April 2013”. (

c) March 26, 2013 – The Appellants’ legal counsel informed Mr. Curliss by letter of an unexpected delay in the preparation oftheir memorandum but said it would be completed by May 1, 2013. That promise was never fulfilled. (d) 2016 – After the federal election of 2015, the Appellants pursued a political strategy with the Government of Canada designedto resolve this litigation. To that end, they sent a letter in December of 2016 to the Minister of Justice and Attorney General of Canadapenned by Chief Bear (the then Chief of the First Nation). (

e) March 8, 2017 – The Minister of Finance replied to Chief Bear’s letter to inform her that outstanding taxation matters wouldbe referred to the Minister of National Revenue and to provide her with contact information with respect to the First Nations Goods andServices Tax, SC 2003, c 15, s 67, initiative. (

f) April 27, 2017 – The Crown applied under s. 825 of the Criminal Code for an order dismissing the Appellants’ appeal forwant of prosecution and dismissing Chief George’s appeal on grounds of mootness. (Chief Denton George had passed away in 2009.) (

g) May 16, 2017 – The Acting Manager of the Ministerial Correspondence Unit wrote to Chief Bear on behalf of the Minister ofJustice and Attorney General in response to her December 2016 correspondence concerning treaty rights and tax arrangements. The letterindicated that the Chief’s correspondence had been referred to the Minister of National Revenue and the Minister of Finance. However, itwent on to say this: “Upon further consultation, it has come to our attention that this matter falls within the purview of the independentPublic Prosecution Service of Canada (PPSC).

I have therefore taken the liberty of sharing your correspondence with the PPSC for theirinformation and consideration” (emphasis added). (

h) August 8, 2017 – The Crown’s application was heard by the QB judge. [11] It is common ground that, as of the date of the Crown’s second application to strike the appeal for want of prosecution, theAppellants had not perfected their appeal. III. THE DISMISSAL DECISION [12] The QB judge began her decision by canvassing the law pertaining to dismissal for want of prosecution by reference to theCourt of Queen’s Bench decision in R v Carter, 2008 SKQB 458 [Carter], appeal to SKCA dismissed, 2009 SKCA 41, 324 Sask R 148,which adopted the reasoning in R v Jackson (N.), 2004 NLSCTD 150, 239 Nfld & PEIR 326 [Jackson]. A

summary of the applicableprinciples in connection with an application to dismiss an appeal for want of prosecution is set out in paragraph 9 of Carter. It states: [9] There are a number of cases which have considered and identified relevant criteria to be taken into account when exercising adiscretion to dismiss an appeal pursuant to s. 825(

b) of the Criminal Code. In R. v. Clarke (1981), 1981 ABCA 185 , 62 C.C.C.(2d) 442 (Alta. C.A.), the

summary conviction appeal judge had dismissed the appeal for want of compliance with the Court of Queen’sBench

summary conviction rules. Kerans J.A., at page 451, in upholding the decision, stated: … There is no suggestion before us that the Rules are anything other than a reasonable standard for the diligent prosecution of an appeal.If, therefore, the Rules are not complied with, it is open to a Judge to find that the appeal has not been proceeded with. In the subsequent decision of R. v. Sopko, (MB CA), [1994] 5 W.W.R. 117 (Man. C.A.), Twaddle J.A. commented onthe criteria that should be taken into account when determining whether an appeal should be dismissed for want of prosecution.

Theappeal in question was by an accused person. At paragraph 12, Twaddle J.A. stated: [12] That is not to say that strict adherence to the requirements of the rules as to time will always be insisted upon. In every case, thelength of the delay, the reasons for it and the nature and extent of the prejudice will be considered along with the merits of the appeal.Delinquent appellants should nonetheless be aware that a significant departure from the rules as to time may lead to dismissal and willlikely do so in all but exceptional cases.

Future experience will determine what is meant by the terms “significant” and “exceptional”. The foregoing case is quoted at length in R. v. Jackson, 2004 NLSCTD 150, 239 Nfld. & P.E.I.R. 326, along with other cases. Atparagraph 19, Dunn J. noted:

[19] Both the statute and case law suggest there are a number of factors which may be considered in a determination of whether or notan appeal ought to be dismissed on the basis it has been abandoned and/or not proceeded with in a timely manner.

These include: (1)length of delay; (2) reason for delay; (3) prejudice to the other party included in which are public interest considerations; (4) adherence toRules of Court and/or practice and procedures in the processing of criminal appeals; (5) efforts made to perfect appeal and proceed onmerits; (6) whether or not there is any merit to the appeal. [13] The Appellants did not take issue with the QB judge’s selection of law in that Court or on appeal. For that reason, we accept thefactors set out in Jackson are appropriate and should be considered in relation to the Crown’s dismissal application.

For purposes of mydecision, and in keeping with how the QB judge and the parties labelled the approach, I will refer to the framework for dismissal as the“Carter factors”. [14] Having set out the applicable law, the QB judge meticulously went through each Carter factor and, in doing so, made a numberof findings of fact, namely: (

a) the length of delay was 15 years, which she described as “an inordinately lengthy period of time” (at para 21); (

b) the Appellants were not dedicated to or diligent in moving their appeal forward; (

c) the length of this delay could possibly prejudice the Crown’s ability to properly present its case if called upon to do so again; (

d) the Appellants failed to pursue their appeal with diligence. Even though the appeal was fraught with transcript issues at theoutset, those concerns were resolved by January of 2012. From that time onward, “there was no impediment to the matter moving steadilytowards a hearing of the appeal. That did not occur. In fact, nothing occurred to advance the appeal between January 30, 2012 and thepresent application” (at para 38); (

e) pursuing a political solution “cannot be considered a step to move the appeal forward” (at para 39); and (

f) prior to the Crown’s application, scant efforts were made to perfect the appeal. [15] The final Carter factor involves an assessment of merit.

The QB judge framed the central issue in the Appellants’ appeal in thesame manner as the Appellants had laid out in their memorandum of law, that is, the “central issue of this case is the discretion of a FirstNation to not administer GST upon reserve, rather for the First Nation to be able to tax and administer their own form of tax as they see fiton reserve lands pursuant to Treaty” (at para 45, citing from the Appellants’ memorandum of law). [16] Following a review of several case authorities, the QB judge concluded the Appellants’ central argument has already beensettled by Canadian jurisprudence and, therefore, no issue of public importance was raised by their appeal.

In response to the Appellants’suggestion that striking their appeal served to tarnish the honour of the Crown, she held that the principle “does not generally constrain theCrown in the conduct of litigation” (at para 54). [17] Based on her analysis of the Carter criteria, the QB judge had no difficulty reaching the bottom-line conclusion that the appealshould be dismissed for want of prosecution. [18] Even though the QB judge determined that the appeal should be dismissed, she went on to consider whether Chief George’sappeal was moot.

Applying the test in Borowski v Canada (Attorney General), (SCC), [1989] 1 SCR 342 [Borowski], asaugmented by R v Smith, 2004 SCC 14, [2004] 1 SCR 385 [Smith], she found it was moot and declined to exercise her discretion to allowhis appeal to continue. [19] The Appellants seek leave to appeal the Dismissal Decision pursuant to s. 839 of the Criminal Code and, if leave is granted, toset aside all aspects of that decision and “direct that the application be returned to the Court of Queen’s Bench for Saskatchewan fordetermination of the appeal proper”.

In a somewhat unusual request, the Appellants also seek an award of costs on this appeal. TheAppellants reiterate their contention that their appeal has merit and raises significant unsettled legal issues. They say significant resourcesand time have been devoted to the appeal by both parties and, therefore, the “court should not be rendered inoperable because of [sic]unilateral decision by the Crown without formal notice within the Honour of the Crown”. IV.

PRELIMINARY POINTS [20] Before delving into the many arguments advanced by the Appellants, I find it useful to place this matter in the appropriate legalframework for appeals of this nature. To that end, several points need to be made. A. Role of this Court on a s. 839 appeal [21] First, at its root, the matter before this Court originates from an appeal brought to the Court of Queen’s Bench under s. 813 ofthe Criminal Code from a decision made by a Provincial Court judge in a

summary conviction proceeding. That appeal resulted in theDismissal Decision (albeit on procedural grounds) that the Appellants now seek to appeal to this Court pursuant to s.

Section 839provides for a qualified right of appeal, as follows: 839

(1) Subject to subsection (1.1), an appeal to the court of appeal as defined in

section 673 may, with leave of that court or a judgethereof, be taken on any ground that involves a question of law alone, against (

a) a decision of a court in respect of an appeal under

section 822; or (

b) a decision of an appeal court under

section 834, except where that court is the court of appeal.

[ 22 ] Under s. 839, this Court’s role is to serve as a second-tier level of appeal from an appeal heard by a

summary conviction appeal judge. As such, this matter is not an appeal from the Trial Decision but an appeal from the Dismissal Decision . Consequently, the error of law the Appellants must demonstrate to ground this Court’s jurisdiction is an error of law committed by the QB judge, not the trial judge (see R v Schaeffer , 2005 SKCA 33 , 194 CCC (3d) 517 ; R v Coates , 2010 SKCA 152 ; R v Travers , 2001 NSCA 71 , 154 CCC (3d) 426 ).

Put in plainer terms, a s. 839 appeal cannot be used as a convenient backdoor for this Court to sit in review of the Trial Decision (see R v Pottie , 2013 NSCA 68 at para 17 , 330 NSR (2d) 361). B. Questions of law alone [ 23 ] The second and related point to be made here is that an appeal under s. 839 is restricted to questions of law alone, with leave of the court (see R v Bray , 2017 SKCA 17 [ Bray ]; R v Bialski , 2018 SKCA 71 at para 37 , 364 CCC (3d) 485).

Notwithstanding the plain wording of s. 839 and the prevailing jurisprudence, the Appellants submit that an appeal under s. 839 does not preclude appellate review for errors of fact or mixed fact and law. They say R v Weber , 2005 ABCA 358 , 380 AR 281 [ Weber ] , and R v Pierone , 2018 SKCA 30 , 361 CCC (3d) 217 [ Pierone ], supports their position. In my view, neither decision provides a foundation for the Appellants’ proposition. [ 24 ] In Weber , the Alberta Court of Appeal dealt with an application by an offender for leave to appeal from an order made by a

summary conviction appeal judge dismissing the offender’s appeal for want of prosecution. As the Court explained, dismissal of an appeal for want of prosecution is a discretionary decision and, as such, the circumstances when leave will be granted from a s. 825 dismissal decision are narrow.

The Court expressed a general reluctance to interfere with the exercise of discretion unless “ its exercise was based on a misapprehension of some legal principle or a misunderstanding of the evidence ” (at para 19). [ 25 ] Having said that, it may be that the Appellants place reliance on the “misunderstanding of the evidence” phrase found in the aforementioned passage as somehow opening the door to appeals from alleged errors of fact or mixed fact and law. [ 26 ] I do not interpret that passage to stand for the proposition that, contrary to the express wording of s. 839, an appeal to this Court can be taken on an error of fact or mixed fact and law.

Rather, Weber confirms the discretionary nature of a s. 825 decision. It also confirms that an appellate court will only interfere with the exercise of discretion where the

summary conviction appeal judge misapprehended a legal principle, misunderstood the evidence or committed some other error of law. A misunderstanding of the evidence or a misapprehension of legal principles is not the same as a fact-based ground of appeal. [ 27 ] Similarly, in R v Pieszkor , 2001 BCCA 150 at para 18 , 149 BCAC 150 [ Pieszkor ], the British Columbia Court of Appeal, emphasizing the discretionary nature of a dismissal decision, appeared to confine itself to questions of reviewable error in relation to an arguable ground on a question of law: [I]n order to obtain leave to appeal to this Court, the applicant must show that he has an arguable ground on a question of law. The

summary conviction appeal judges did not purport to rule on any legal issue, but simply made a ruling specific to the particular facts of both appeals. A dismissal for want of prosecution is discretionary. Nothing the applicant has said, nor anything disclosed in the material placed before me indicates that the judges in the Supreme Court made any error of law in ruling as they did . Indeed, they had little choice but to dismiss the appeals. (Emphasis added) [ 28 ] To similar effect is the decision in R v Madsen , 2007 NWTCA 4 [ Madsen ], where leave was refused in relation to a decision of a

summary conviction appeal judge dismissing the offender’s appeal for want of prosecution. In that case, the appellant and his lawyer had failed to appear to speak to his appeal. The Court summarized its conclusions in this way: [15] In this case, the applicant alleges that the

summary conviction appeal judge misdirected himself as to the applicant’s efforts and intentions and did not correctly consider the submissions of the Crown. This is really an allegation that he erred as to the facts; at most it is an issue of mixed law and fact, that is, whether the facts satisfied the legal test for dismissal. It is not an allegation that the

summary conviction appeal judge acted pursuant to the wrong rule or part thereof, making an error of law , as was the case in [ R v Kiers , [1968] O.J. No. 585 (QL) (CA) ]. (Emphasis added) [ 29 ] The central issue in Madsen was whether the applicant had raised an issue of law on his application for leave to appeal. The Court specifically rejected the notion that attacking the factual findings of the

summary conviction appeal judge that led to the dismissal of the appeal for want of prosecution amounted to an error of law. [ 30 ] I pause here to note that this passage from Madsen bears striking parallels with the present case in that the Appellants’ argument largely boils down to allegations that the QB judge erred in her assessment of the reasons for the length of the delay attributable to them, erred in her assessment of prejudice to the Crown, and erred in her assessment of the merits of the

summary conviction appeal. I will return to this point later on, however for present purposes it is sufficient to note the similarity in their argument to the arguments made in Madsen . In large measure, the Appellants’ submission reduces to an allegation that the QB judge erred in her assessment of the evidence. Unless the QB judge completely misunderstood the evidence or ignored material evidence, this line of argument does not raise a question of law. [ 31 ] Finally, contrary to the Appellants’ assertion, this Court’s decision in Pierone provides no support for their argument about a broad scope of appeal. That decision concerned whether the

summary conviction appeal judge had applied the proper standard of review in relation to the Crown’s appeal in the Court of Queen’s Bench from an acquittal pursuant to s. 813 of the Criminal Code . In other words, this Court’s decision involved an assessment of whether the trial judge had committed the error of fact as so alleged by the Crown in its appeal to the

summary conviction appeal judge. Simply put, Pierone does not stand for the proposition that errors of fact or mixed fact and law are open to appellate review on a s. 839 appeal.

C. The standard of review [32] This brings me to the standard of appellate review applicable to this decision. [33] The most factually similar case to the present matter is R v Prairie Chicken, 2011 ABCA 222, 510 AR 194 [Prairie Chicken].The applicants in that case were members of a First Nation who had been convicted of trespass and wildlife offences.

They had raised anumber of constitutional arguments at trial, namely that the Wildlife Act, RSA 2000, c W-10, did not apply to them as status Indians, thatthe Royal Proclamation provided them with a guarantee that their historical customary hunting practices would not be disturbed, and thattheir hunting rights were not extinguished by European settlement. Those arguments were ultimately rejected, and the applicants werefound guilty by the trial judge. They sought to appeal that decision but experienced delays in securing transcripts and advancing theirappeal.

Eventually their appeal was dismissed for want of prosecution. In their attempt to appeal the dismissal decision to the AlbertaCourt of Appeal, leave was denied on the basis that the dismissal decision was found to be an exercise of discretion that was reasonablytaken on the facts of that case. [34] Weber (at para 20), citing Pieszkor at paragraph 18, is also instructive for reinforcing the discretionary nature of that sort ofdecision. The Court stated: [I]n order to obtain leave to appeal to this Court, the applicant must show that he has an arguable ground on a question of law.

Thesummary conviction appeal judges did not purport to rule on any legal issue, but simply made a ruling specific to the particular facts ofboth appeals. A dismissal for want of prosecution is discretionary. Nothing the applicant has said, nor anything disclosed in the materialplaced before me indicates that the judges in the Supreme Court made any error of law in ruling as they did. Indeed, they had little choicebut to dismiss the appeals. (Emphasis added) [35] Courts dealing with appeals from discretionary-type decisions made in other contexts have adopted the same standard ofreview.

Examples of this approach can be found in the following types of decisions: imposing a stay of proceedings (R v Regan, 2002 SCC12 at para 117, [2002] 1 SCR 297); failing to give a Vetrovec warning (R v Smith, 2018 SKCA 42, 363 CCC (3d) 559); granting orrefusing an adjournment (R v Hayter, 2018 SKCA 65, 365 CCC (3d) 413); and change of venue (R v Munson, 2003 SKCA 28, 172 CCC(3d) 515 [Munson]).

The following passage from Regan is particularly instructive: [117] The decision to grant a stay is a discretionary one, which should not be lightly interfered with: “an appellate court will be justifiedin intervening in a trial judge’s exercise of his discretion only if the trial judge misdirects himself or if his decision is so clearly wrong asto amount to an injustice” ([Canada (Minister of Citizenship and Immigration) v Tobiass, (SCC), [1997] 3 SCR 391] atpara. 87; Elsom v. Elsom, (SCC), [1989] 1 S.C.R. 1367, at p. 1375).

Furthermore, where a trial judge exercises her or hisdiscretion, that decision cannot be replaced simply because the appellate court has a different assessment of the facts (Stein v. The Ship“Kathy K”, (SCC), [1976] 2 S.C.R. 802; see also R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38; R. v.

Van der Peet, (SCC), [1996] 2 S.C.R. 507). [36] While there are certainly similarities between the various types of discretionary decisions in that all such decisions must bewell-founded in law and must be made judicially, the scope of review from decisions of that sort illustrates the willingness of courts toapply an appellate standard similar to that used in a civil context in reviewing a discretionary decision. [37] Support for the adoption of the standard of review for discretionary decisions in a civil context can also be found in R vMunson, 2003 SKCA 28, 172 CCC (3d) 515 [Munson]: [25] In R. v.

Suzack, (2000), (ON CA), 141 C.C.C. (3d) 449, the Ontario Court of Appeal considered the powers ofthe court on a review of a decision concerning change of venue. Doherty J., speaking for the Court, said: [31] As the

section indicates, a change of venue should be ordered where the judge is satisfied that it “appears expedient to the ends ofjustice”. This determination will depend on the judge’s assessment of the evidence led on the application and the weighing of the variousfactors which favour or tell against a change of venue. In short, the trial judge’s decision requires an exercise of discretion. [32] In Baker v.

Canada (Minister of Citizenship and Immigration) (1999), (SCC), 174 D.L.R. (4th) 193 (S.C.C.) at223, L’Heureux-Dubé J., for the majority, said: The concept of discretion refers to decisions where the law does not dictate a specific outcome, or where the decision-maker is given achoice of options within a statutorily imposed set of boundaries. … [34] The appellants accept, for the purposes of their first submission on this ground of appeal, that this court can interfere with the trialjudge’s exercise of his discretion only if the trial judge erred in principle or if it can be said that the exercise of his discretion wasunreasonable in all of the circumstances.

An error in principle encompasses a failure to consider relevant factors, the taking into account ofirrelevant factors, and a failure to properly weigh the various applicable factors: R. v. Rezaie (1996), (ON CA), 112C.C.C. (3d) 97 (Ont. C.A.) at 103. [26] Upon a careful examination of the reasons for decision, we can find no error of principle in the decision of the trial judgeconcerning venue. His

summary of the applicable law was correct. He considered all relevant factors. His decision was a reasonable one. Itwas a proper exercise of judicial discretion. [38] From the foregoing synopsis of the case law, it is clear that a decision to dismiss an appeal for want of prosecution is anexercise of discretion. In seeking leave to appeal from a decision of that sort, an appellant must satisfy this Court that the proposed appealraises a question of law, not fact or mixed law and fact. There will be an error of law if the decision is based on an alleged error in

principle, or on an assertion the exercise of discretion was so clearly wrong as to amount to an injustice. An error in principle includes afailure to consider relevant factors, taking into account irrelevant factors, or a failure to act judicially (see R v Suzack (2000), (ON CA), 141 CCC (3d) 449 (Ont CA) at para 34). Absent an error of principle, appellate intervention would not be warranted(see Weber at para 19; City of Winnipeg v Innocent Vision Inc., 2018 MBCA 76 at para 11 [City of Winnipeg]). D.

The test for leave [39] The starting point of discussion on the test for leave to appeal brought under s. 839 of the Criminal Code is this Court’sdecision in Bray. As the comments of Caldwell J.A. in Bray are concise and directly to the point, I reproduce them here: [2] The right to appeal against the result of a

summary conviction appeal is limited to questions of law alone and is exercisable onlywith leave of this Court or a judge of this Court (Criminal Code, s. 839). Leave to appeal is granted sparingly. In broad terms, an applicantmust establish the proposed appeal raises a question of law that is either: (

a) significant to the administration of justice generally—i.e.,beyond the four corners of the case, or (

b) compellingly meritorious in the particulars of the case in question. In its deliberations, theCourt will consider whether the offence is serious, whether the applicant is facing a significant deprivation of liberty and whether denialof leave would result in an injustice going unaddressed. (Emphasis added, citations omitted) [40] The test for leave set out in Bray is demanding.

Not only must the appeal raise a question of law, but the applicant must alsoestablish that the proposed appeal is either significant to the administration of justice generally or compellingly meritorious in theparticulars of the case in question.

As the Court went on to observe in Bray, the factors that inform the Court’s assessment of those twocriteria include whether the offence is serious, whether the applicant is facing a significant deprivation of liberty, and whether denial ofleave would result in an injustice that goes unaddressed. [41] Although the Appellants do not suggest the Bray test is inapplicable to the matter at hand, I have nonetheless consideredwhether it should be applied in circumstances where, like the present matter, a

summary conviction appeal judge did not rule on thesubstantive merits of the case but, instead, exercised their discretion to dismiss the appeal for want of prosecution. This is an importantconsideration because the foundation for Bray and decisions like it rests on the premise that an appeal from a

summary conviction appealis effectively a “second kick at the can”. In contrast, an appeal to this Court from a s. 825 decision, which does not engage the substantivemerits, is, to reframe the analogy, a first kick at the can with respect to that issue. [42] There is sparse jurisprudential support for the proposition that the test for leave to appeal a discretionary decision made unders. 825 engages the Bray-type criteria, i.e., that the appeal is significant to the administration of justice generally or is compellinglymeritorious in the particulars of the case in question.

R v Vorias, 2019 QCCA 452, and R v Cai, 2018 ABCA 142, both adopted anapproach similar to the Bray test. Weber spoke of the need for the issues raised to be of some public importance and of arguable merit. Tosomewhat similar effect is Pieszkor and Madsen where the Court said an applicant must demonstrate an arguable ground on a question oflaw. Apart from those cases, most of the leave decisions are expressed in very short reasons and turn on either the standard of review orwhether a question of law had been raised.

In other words, in the circumstances of the matter before them, the courts saw no need to go onand consider whether the question of law raised by the appeal was significant to the administration of justice generally or compellinglymeritorious. [43] All of that said, because this issue was not argued by the parties at the time of the appeal hearing, I find it unnecessary to cometo any firm conclusion. It may be that the Bray test should be recalibrated, however, that issue is best left for another day.

For presentpurposes, the Appellants have satisfied me that, even if the Bray test is applicable to appeals of this nature, leave should be granted. V. IDENTIFICATION OF THE APPLICABLE LAW [44] As mentioned, the Appellants do not take issue with the QB judge’s identification of the governing law. They agree that Carterestablishes the appropriate legal framework in considering an application to dismiss for want of prosecution.

In spite of their position, theAppellants point to the recent decision in R v Yashcheshen, 2020 SKQB 259 [Yashcheshen], where a Queen’s Bench judge gave theappellant an additional 30 days to perfect her appeal. By referencing this decision, I understand the Appellants to suggest the QB judge inthe within matter erred in her application of Carter by not taking a more forgiving approach to their delay. [45] This argument appears to be grounded in the Appellants’ promise to file their memorandum of law in the Court of Queen’sBench within 30 days from the date of the dismissal application.

I take the Appellants to say that the QB judge erred by not responding toor engaging with them in that suggestion and ultimately failing to consider whether they should be given further latitude to perfect theirappeal. [46] There is no merit to this argument. Since the QB judge struck the appeal, she can be understood to have implicitly rejected theAppellants’ request for additional time. In any event, the facts in Yashcheshen were markedly different: Ms. Yashcheshen was a self-represented litigant who had not perfected her appeal for 2 years, not 15.

Furthermore, the Yashcheshen decision, pronounced severalyears after the Dismissal Decision, involved the exercise of judicial discretion based on the circumstances of that case. The factMs. Yashcheshen was given another opportunity to perfect her appeal does not mean the QB judge in this matter had to exercise herdiscretion in like manner. VI. APPLICATION OF THE CARTER FACTORS A. Length of the delay

[ 47 ] As noted, the QB judge found the total length of delay was 15 years. This is a finding of fact. There is no suggestion the QB judge misunderstood the evidence in connection with this issue. B. Reasons for the delay [ 48 ] The primary reasons for delay proffered by the Appellants were the time spent preparing the trial transcript and pursuing a political resolution. The QB judge was unpersuaded by this rationale.

She said: “On the whole of that history, I cannot conclude that the appellants were dedicated to, and diligent in, pressing the appeal forward” (at para 31). [ 49 ] The Appellants advance several arguments to attack that finding. In my view, most of the Appellants’ submissions in connection with how the QB judge dealt with their reasons for delay raise questions of fact not law. While that alone is a complete answer, as explained below, those arguments lack merit in any event. [ 50 ] First, they say the QB judge erred in characterizing the Crown’s 2004 dismissal application as having placed them “on notice”.

In large measure, this argument is little more than a disagreement with the reasons given by the QB judge and evinces no legal error. Given the Appellants’ lack of tangible progress in the first two years following the filing of their notice of appeal, it is hard to see how the Crown’s 2004 application was anything other than a clear signal that it expected the Appellants to move their appeal along or face the prospect of dismissal for want of prosecution if they failed to do so. [ 51 ] Next, the Appellants argue the QB judge erred by failing to attribute part of the delay to the Crown.

They assert that, in 2013, the parties had agreed that the appeal could be delayed, or at least there was an implicit understanding that no further steps would be taken without formal notice being given. I agree that if the Crown prosecutor had provided an undertaking to hold the matter in abeyance, there could be something to this argument. However, the evidence on this point does not bear this out and is, at best, controverted. [ 52 ] Anne Fisher filed an affidavit sworn August 4, 2017, for the Crown. According to Ms. Fisher, there were no phone calls or discussions between the parties regarding delay.

She averred: 2. That I have reviewed paragraph 14 of the Affidavit of Sharon Helen (Manyfingers) Venne sworn the 31st day of July 2017 and reviewed our file in light of that. There is no record on the file, as there would be if such had occurred, of “multiple telephone conference calls documented with Mr. Curliss nor is there any reference to any agreement, either note or in correspondence, again as there would be if such occurred, that if there were any concerns with delay there would be formal written notice prior to taking any formal steps. [no paragraph 3] 4.

To the extent there is in the file any correspondence regarding timings it is from the Crown confirming that it was content with the transcripts and then from the appellants counsel, Mr. Phillips stating that he would be filing a Memorandum in the near future and according to our file that did not happen. There are set out in paragraphs 13 to 22 of Tami Gibson’s Affidavit in these proceedings sworn the 19th day of April, 2017. [ 53 ] The affidavit of Ms. Venne sworn July 31, 2017, was filed by the Appellants in response. In paragraph 14 thereof, Ms. Venne said this: 14.

I have been personally present with counsel for the Appellants during multiple telephone conference calls conducted with Mr. Curliss since 2013, wherein discussion and agreement occurred that if there was any concern with the delay that was being occasioned, either party would provide formal written notice prior to taking any step with respect to same. [ 54 ] The QB judge considered but ultimately rejected the evidence of Ms.

Venne because, as she said, “the appellants have not offered any correspondence to support that position and did not particularize the dates of the ‘multiple telephone conference calls’” (at para 28). This led her to conclude that, contrary to their position, the parties had not reached an agreement or understanding on that point. There is no suggestion by the Appellants that the QB judge misapprehended or ignored the Appellants’ evidence. Their complaint, as I see it, is that she preferred the Crown’s evidence over theirs. The QB judge was aware of the contrasting positions.

She identified the discrepancy in the evidence, but, in the end, preferred Ms. Fisher’s evidence over Ms. Venne’s. It was her prerogative to do so. [ 55 ] There is a further reason why this argument cannot succeed. In spite of preferring Ms. Fisher’s evidence over Ms. Venne’s, the QB judge went on to hold that, even if she had accepted the latter’s evidence, “the Crown’s lack of notice prior to the application to dismiss the appeal does not alter or erase the absence of forward movement of this appeal ” (emphasis added, at para 29). This finding is amply grounded in the evidence.

In his January 30, 2012, letter, the Crown prosecutor confirmed that all outstanding transcript issues had been resolved, to which the Appellants’ counsel replied on January 29, 2013, to say: “[O]ur memorandum preparation is nearing completion and we will seek to provide same to you on or before the first week of April 2013”. The Appellants’ counsel sought a further indulgence of time to file the memorandum by the end of May of 2013. That is the last correspondence on record from the Appellants.

It is common ground that no memorandum of law was filed prior to the Crown’s second dismissal application in 2017, some four years later. [ 56 ] Notwithstanding the Appellants’ failure to take any further steps to perfect their appeal after 2013, they now assert the Crown should share in some of the blame for the delay because it (the Crown) took no steps to enquire about the status of their appeal from 2013 until the date of its application. With respect, this is a circular argument that must be rejected for the simple reason that it flies in the face of the weight assigned to Ms. Venne’s evidence.

Furthermore, it is premised on the proposition that both parties to a

summary conviction appeal bear the onus of perfecting the appeal. While there might be something to that logic in civil proceedings, this was a criminal matter. The Appellants cite no case law in support of their proposition, nor for that matter have I been able to locate any. [ 57 ] The Appellants next argue that their efforts to achieve a political solution by sending a letter to the Minister of Justice and Attorney General of Canada on December 2, 2016, effectively stopped the delay clock from running. The QB judge rejected that argument.

She pointed to a reply letter the Appellants received from the Minister’s office which, in rather stark terms, informed them that a resolution of their criminal appeal was in the hands of the Public Prosecution Service of Canada [PPSC]. In other words, despite the Appellants’ hopes for a politically driven resolution to their criminal appeal , they were told, quite properly in my view, that the PPSC was

independent from the political process and that they had to deal directly with that part of government. I see no error in how the QB judgeresolved this issue. [58] Finally, the Appellants maintain that the entire delay issue must be vetted through the lens of the “Honour of the Crown”, andthat the QB judge erred in failing to take that principle into account, especially since an aspect of the appeal dealt with Treatyinterpretation. The fact that they devoted a single paragraph in their factum to this line of argument and cited no case authority to support itis indicative of its rather undeveloped state.

That said, I understand the Appellants to suggest that the doctrine may manifest itself broadlyin legal proceedings where issues of treaty rights are engaged. [59] A similar argument was raised in analogous circumstances in Canada v Stoney Band, 2005 FCA 15, 249 DLR (4th) 274[Stoney Band], which was concerned with the lack of progress in a civil proceeding.

Speaking for the Court, Rothstein J.A. (as he thenwas) noted the circumstances in which the Honour of the Crown principle had been applied but concluded that it has not been extended tothe conduct of litigation by the Crown: [22] In litigation, the Crown does not exercise discretionary control over its Aboriginal adversary. It is therefore difficult to identify afiduciary duty owed by the Crown to its adversary in the conduct of litigation.

It is true that an aspect of the claim against the Crown bythe Stoney Band is based on an allegation of breach of fiduciary duty with respect to the surrender and disposition of reserve land.

Buteven if such a fiduciary duty existed, that duty does not connote a trust relationship between the Crown and the Stoney Band in theconduct of litigation. [60] Justice Rothstein specifically rejected the argument that the Honour of the Crown doctrine should be extended to the conductof litigation in a way that precluded the Crown from raising procedural defences in litigation. (See Stoney Band at paras 24–25.) I adoptthe reasoning in Stoney Band and suggest that the Appellants’ argument – that the Crown had somehow breached a fiduciary duty in theway in which it handled this criminal file – is an untenable overextension of the law.

The Appellants did not identify any case law thatsays anything different from Stoney Band. [61] Nor, to my knowledge, is the Honour of the Crown an independent source of restriction on the Crown’s conduct in litigationinvolving Indigenous people (see Watson v Canada (Indian and Northern Affairs), 2017 FC 321 at para 35 [Watson 2017]). [62] According to these authorities, the Honour of the Crown should not be seen as a restriction on the Crown’s conduct in litigationinvolving Indigenous people. [63] Given the present state of the jurisprudence, and in light of the specific circumstances of this case, I cannot accede to theAppellants’ largely undeveloped argument that the QB judge erred in law by not taking the Honour of the Crown into account in theexercise of her discretion on the dismissal application. [64] To conclude on the delay issue, I find myself unpersuaded by any of the Appellants’ arguments.

The QB judge meticulouslyreviewed the period of delay between the date of their notice of appeal in 2002 and the date of the Crown’s second dismissal applicationon April 27, 2017. She recognized that some allowance should be made for the time it took to resolve the transcript issues, but she wassatisfied that even if several years were deducted from the overall 15-year delay to account for transcript issues, there was little evidencethe Appellants had taken any meaningful steps to move their appeal along. This led her to conclude that the delay was inordinate andunjustified.

In challenging that conclusion, most of the arguments advanced by the Appellants either take issue with the findings of factmade by the QB judge or seek to have this Court assess the evidence independently in the hope we would come to a different conclusion.That is not the function of an appellate court. C.

Prejudice to the Crown and public interest considerations [65] The QB judge found that the Crown was disadvantaged because its witnesses were either retired, had moved away or weredeceased, thus making it difficult for it to recreate its case should a new trial be ordered. [66] The Appellants say the QB judge superficially assessed this issue. For instance, as they point out, since only 2 of the Crown’s15 witnesses had provided viva voce testimony at trial, a new trial could possibly proceed on the existing record and, in any event, most ofthe Crown’s case consisted of documentary evidence.

In short, the Appellants submit the QB judge erred in failing to examine the issue ofprejudice more in depth, choosing instead to latch on to irrelevant considerations such as the length of the trial. [67] While the QB judge did not have to accept the Appellants’ submissions, she had to at least give them considered attention. Thefact the first trial principally involved documentary evidence was highly relevant to the issue of prejudice as was the need to considerwhether the two witnesses in question (to the extent they were needed) were truly unavailable and not just retired.

Finally, the QB judgefailed to grapple with the notion that these were government records that were undoubtably accessible to present government officials or ifthey could be introduced as business records. [68] That said, unlike a civil proceeding where the focus is on actual prejudice to the other party, this was a criminal appeal wherethe public confidence in the administration of justice had to be considered.

In discussing delay in the context of a criminal appeal,particularly where it has the potential to lead to a new trial, Twaddle J.A. in R v Sopko, (MB CA), [1994] 5 WWR 117 (Man CA) [Sopko], emphasized the prejudice to the public interest inherent with unreasonable delay and the need for appeals tobe prosecuted with dispatch. He wrote: [11] This Court is therefore more likely to dismiss a criminal appeal for delay without proof of actual prejudice than a trial courtconsidering a motion to dismiss a civil action. This is so for a number of reasons: 1.

The prosecution of an appeal is much more straightforward, and less time consuming, than the prosecution of an action. 2. The prejudice involved is to the public interest rather than to a single adverse party. This means that the prejudice is more difficult todefine and prove.

3. The standard of proof to be met if the case has to be retried is higher than in a civil action. The dimming of memories has thus a moresignificant affect. 4. The need to require victims to relive their experiences long after the event rarely arises in civil cases. 5. Delay in the prosecution of an appeal has a greater potential of being an abuse of process particularly where the accused is on interimrelease. See also R v Peck (1998), (MB CA), 126 CCC (3d) 569 (Man CA). [69] The matter at hand involves

summary conviction offences that, by their nature, need to be pursued with diligence. While theQB judge may have overstated the Crown’s concern with respect to the availability of its witnesses, the inherent prejudice to the publicinterest was an important factor that she failed to assess. Given the extensive delay, this consideration favoured the Crown’s position.

Asthe Court pointed out in Sopko, “Inherent prejudice may be enough to justify the dismissal of an appeal for delay” (at para 8). [70] Taken as a whole, even if the QB judge mishandled the way in which she approached the prejudice criterion, her error was tothe benefit of the Appellants, not the Crown. It does not provide a footing for appellate intervention. D. Adherence to The Queen’s Bench Rules [71] The Appellants make two arguments under this ground of appeal. First, they say that, contrary to the finding that no effortswere made to perfect the appeal and move it along, steps had indeed been taken.

They once again point to the years it took to resolve thetranscript issues and how they had offered to perfect their appeal by filing their memorandum of law within 30 days after the date of thedismissal application. Finally, relying on the principle of proportionality set out in Rule 1-3(4) of The Queen’s Bench Rules, they say theQB judge turned a blind eye to their efforts to pursue a mediated settlement and achieve reconciliation through discussions with thepolitical arm of government. [72] The Court of Queen’s Bench for Saskatchewan

Summary Conviction Appeal Rules, SI/2011-20 [Criminal Appeal Rules],govern the conduct of appeals from a

summary conviction court under

Part XXVII of the Criminal Code. The pertinent sections of thoserules provide: 6

(1) Within 14 days after serving the Notice of Appeal, the appellant shall furnish to the local registrar proof, satisfactory to the localregistrar, that transcripts of the trial proceedings have been ordered. … 11 Unless the appeal court otherwise orders, the appellant and respondent shall each file a memorandum of argument with the localregistrar. … 16

(1) The respondent may apply to the appeal court for an order that the appeal be dismissed if the appellant fails to (

a) pursue the appeal diligently; or (

b) comply with these Rules.

(2) The respondent shall serve the appellant with 14 days’ notice of the date, time and place of the hearing of the application. [73] After identifying the rules applicable to

summary conviction appeals, notably the obligation to order and file a trial transcript,the QB judge turned to the real issue that stood in the way of perfection of this appeal: the Appellants’ failure to file their memorandum oflaw. On this point, she said: [38] The Crown’s January 30, 2012 correspondence seeking confirmation from the appellants that all transcript issues had beenresolved went unanswered and no further issues were raised by the appellants. A conclusion can be made that by January 30, 2012, therewas no impediment to the matter moving steadily towards a hearing of the appeal. That did not occur.

In fact, nothing occurred to advancethe appeal between January 30, 2012 and the present application. While the appellants submit that the appeal memorandum was a work inprogress with the assistance of many individuals, specifics were not offered to the court to decipher what that means. If the completion ofthe memorandum was indeed the impediment to moving the matter forward, it would be difficult to accept that five years of memorandumpreparation was required.

Some five years passed from 2012 to this application with no advancement despite notice to the appellants in2004 that the Crown was anxious to proceed with the appeal. [74] This passage is central to the Dismissal Decision. On the evidence before her, the QB judge found no impediment to theAppellants’ ability to move the matter forward and concluded that nothing had occurred to advance their appeal between January 30,2012, and the time of the second dismissal application in 2017. These were crucial findings of fact. To perfect their appeal the Appellantsonly needed to file their memorandum of law.

They failed to do that. Even allowing for the complexity of some of the issues, their inabilityto do so over the span of five years spoke volumes. [75] Given the circumstances at hand, I am hard-pressed to see a misstep by the QB judge that could amount to an error of law. Infact, I do not interpret the Appellants as even contesting the finding that they failed to comply with the Criminal Appeal Rules. Thepurpose of those Rules is to “strike a balance between the interests of reviewability and finality.

Litigants are expected to be diligentwithout being reminded” (City of Winnipeg at para 13). [76] Neither do I find the Appellants’ argument about the application of the foundational rules and the QB judge’s failure to take a

proportional response meritorious. This argument is of no assistance to the Appellants for the simple reason that this was a criminal appeal governed by the Criminal Appeal Rules. The principle of proportionality is housed in The Queen’s Bench Rules , which apply to and govern the practice and procedure in civil claims or actions. [ 77 ] The last argument is the Appellants’ submission that the QB judge erred in failing to consider its efforts to reach out to the Federal Minister of Justice as a “step” in the appeal process.

There is no merit to this assertion in the context of its failure to adhere to the Criminal Appeal Rules . In any event, even after being informed that the matter remained in the hands of PPSC, the Appellants still did nothing to advance their appeal in the three-month period between the date of the letter from the office of the Minister of Justice and the date when the dismissal application was heard by the QB judge. [ 78 ] I see no error with how the QB judge assessed the Criminal Appeal Rules issue. E.

Efforts made to perfect the appeal [ 79 ] As discussed above, the QB judge was alert to the Appellants’ efforts to resolve the transcript issues. However, she found as fact that the Appellants took no steps to advance their appeal between January 30, 2012 – when the Crown sought confirmation that the transcript issues had been resolved – and the date when the dismissal application was heard. That conclusion is amply supported by the record. F.

Is there merit to the appeal? [ 80 ] The central substantive issue put to the QB judge by the Appellants was the question of whether a First Nation has the discretion not to administer the GST on reserve and if it is able to administer its own form of taxation as seen fit pursuant to Treaty.

The QB judge approached the issue of merit by asking whether the laws of Parliament (the Excise Tax Act ) have application to the Appellants individually or as a band. [ 81 ] In addressing this question, the QB judge observed that, pursuant to the existing jurisprudence, the GST is to be imposed on and paid by non-Indigenous persons who purchase goods and services on reserve. She said the requirement for bands to collect and remit does not infringe upon or affect the rights of Indigenous people under s. 87 of the Indian Act , RSC 1985, c I-5 .

Her conclusion was based on the decisions in R v Sewell , 2006 ONCJ 202 , [2006] 4 CNLR 241 [ Sewell ]; Diome v The Queen , 2012 TCC 9 [ Diome ]; Rice v Agence du revenu du Qu ébec , 2016 QCCA 666 [ Rice ]; and Acadia First Nation v Canada (National Revenue) , 2007 FC 259 , 310 FTR 109 [ Acadia ] . The QB judge found this body of case law, together with the First Nations Goods and Services Tax Act , SC 2003, c 15, s 67 , that was enacted in 2003, effectively addressed the Appellants’ concerns.

That statute provides that, with the agreement of Canada, a band council may impose a goods and services tax on the land it governs. Taken together, the case law and legislation caused her to conclude by saying “no issue of public importance has been raised that has not been considered by the courts or addressed with legislation” (at para 53). Finally, the QB judge found that the Honour of the Crown principle does not constrain the conduct of litigation. [ 82 ] The Appellants argue the QB judge erred in a number of ways.

First, they say she missed the issue entirely by framing it in the way that she did instead of asking whether the First Nation had the legal right to tax and administer its own taxation scheme on reserve land pursuant to Treaty or the right of self-governance. Second, the Appellants contend the authorities relied on by the QB judge are all distinguishable because they either did not involve treaty rights, address Aboriginal title or the rights of the collective (as opposed to the individual).

Third, they argue that the enactment of the First Nations Goods and Services Tax Act came after the Trial Decision and, as it had no bearing on the overall merits of an appeal from the Trial Decision , it was an error for her to have considered it. Fourth, the Appellants submit that subsequent to the Trial Decision , the Supreme Court rendered its decision in Haida Nation v British Columbia (Minister of Forests) , 2004 SCC 73 , [2004] 3 SCR 511 [ Haida Nation ], which recognizes pre-existing Aboriginal sovereignty.

They also point to Watson v Canada , 2020 FC 129 [ Watson ], a decision from the Federal Court, which is said to be the lynchpin of their appeal. [ 83 ] I will now turn to the Appellants’ arguments. 1. Error in framing the issue [ 84 ] The Appellants argue that the QB judge misunderstood the issue at trial as reflected by the way in which she had framed its argument.

They say the real issue was whether the First Nation had the right, pursuant to Treaty 4 or their sovereign right to self-govern, to levy its own tax, while the QB judge viewed the issue as being whether the Canadian government’s taxation scheme applied to the First Nation. [ 85 ] With respect, the Appellants’ allegation is undermined by the way in which it set out the issue in paragraph 12 of its memorandum of law, which was as follows: 12.

The central issue of this case is the discretion of a First Nation to not administer GST upon reserve, rather for the First Nation to be able to tax and administer their own form of tax as they see fit on reserve lands pursuant to Treaty. [ 86 ] The QB judge did no more than repeat that issue verbatim from the Appellants’ memorandum of law, where, at paragraph 45, she said this: [45] As synthesized by the appellants for the purposes of this application, they state the “central issue of this case is the discretion of a First Nation to not administer GST upon reserve, rather for the First Nation to be able to tax and administer their own form of tax as they see fit on reserve lands pursuant to Treaty” (Appellant Application Memorandum, page 7, para. 12). [ 87 ] The fact she may have slightly reframed the issue in paragraph 46 that followed does not mean that she veered off course or failed to grasp the Appellants’ core argument.

All she said was that, for the Appellants to be successful, they had to demonstrate that the laws of Parliament had no application to them individually or as a band. This statement does not evince error.

[ 88 ] In any event, the real issue is whether the QB judge understood the Appellants’ argument. In my view, paragraph 52 of the Dismissal Decision demonstrates that the Appellants’ argument was not lost on her. She said this: [52] Bound in the concern of the appellants is the desire to levy the Ochapowace sales tax rather than collect and remit GST. The decision in [ Acadia First Nation v Canada (National Revenue) , 2007 FC 259 , 310 FTR 109] makes clear that the obligation to collect and remit GST cannot be usurped by the imposition of a commodity or service tax by a Band.

Perhaps more importantly, the issue of a First Nation administering its own tax on reserve lands has been addressed by the enactment of [the First Nations Goods and Services Tax Act [ FNGSTA ]]. FNGSTA came into force on June 19, 2003. 2. Reliance on the First Nations Goods and Services Tax Act [ 89 ] Next, the Appellants argue that the QB judge placed undue reliance on the First Nations Goods and Services Tax Act as providing a full answer to the merits prong of the analysis. [ 90 ] The Appellants’ argument is grounded in paragraph 52 of the Dismissal Decision , set out above.

While I agree that reference to the First Nations Goods and Services Tax Act may have been misguided in the context of an assessment of the merits of the Appellants’ appeal from the Trial Decision , I do not understand this legislation to have played much, if any, role in her merit analysis.

I say this because paragraph 52 must be read alongside the QB judge’s discussion of the jurisprudence, notably her observation that the decision in Acadia significantly undercut the strength of the Appellants’ appeal. [ 91 ] In Acadia , the Federal Court was faced with a similarly asserted right to self-government and the right to eschew the obligation to collect and remit the GST in favour of a First Nation establishing its own, independent commodity tax.

The Federal Court held that the imposition of a commodity tax by the Acadia First Nation was not a modern-day expression of their “communal sharing tradition” (at para 39). While the Appellants attempt to distinguish Acadia from the matter at hand by arguing that it was not a final determination of whether that First Nation had the right to administer a commodity tax and, in any event, arose in the context of a duty to consult argument, as discussed below, I would suggest that the question on the present appeal is not whether the QB judge’s assessment of Acadia and the other cases she referred to was correct.

Rather, the question facing her in the assessment of the merit criterion, in light of the caselaw that she was referred to, was reasonable, not tainted by an error in principle, or a failure to act judicially. 3. Are the cases relied on by the QB judge distinguishable? [ 92 ] The Appellants submit the Dismissal Decision is undermined by the QB judge’s erroneous reliance on case law that was distinguishable from the facts at hand. For instance, they say Acadia was a duty to consult case and did not involve arguments about Aboriginal title.

They note that Pictou v Canada , 2003 FCA 9 , 299 NR 329, involved individuals who had claimed an exemption from the requirement to collect the GST on reserve on the basis of a treaty right, but it did not involve a situation where a band imposed a similar tax. They also point out that, in both Sewell and Diome , the accused did not claim a treaty or Aboriginal title.

Finally, the defence asserted in Rice did not involve a treaty right, self-government or address Aboriginal title. [ 93 ] As I read her decision, the QB judge did not say those decisions were individually or collectively squarely on point, or for that matter even determinative. She simply said that the referenced jurisprudence contained similar issues to the sorts of concerns the Appellants wished to advance if the appeal proceeded on its merits.

In her view, the decisions consistently held that the GST is to be imposed on and paid by non-Indigenous persons who purchase goods and services on reserve and that an Indigenous vendor operating on reserve land is obliged to collect and remit that tax. [ 94 ] The QB judge found two of the decisions particularly significant. In Rice , the plaintiff retailers were status Indians who owned gas stations on reserve.

They refused to remit taxes from the sale of gasoline and when the Minister of Revenue took enforcement measures, they applied for a declaratory judgment that they be exempted from the obligation to collect taxes imposed on the sale of gasoline. Their position invoked various constitutional arguments and matters based on the Indian Act . On appeal, the Quebec Court of Appeal determined the Indigenous retailers had an obligation to collect taxes imposed on the sale of gasoline and to remit such funds to the Minister of Revenue.

While recognizing that Indigenous persons were exempt from paying the tax pursuant to the Indian Act , it said non-Indigenous customers were not. Other arguments (ancestral right to trade) turned on the unique facts of that case. [ 95 ] The second decision was Acadia , which is referred to above. Although the issue in Acadia was an alleged breach of the duty to consult, in order to decide that issue the trial judge was required to canvass many of the principles associated with an Aboriginal rights type of claim.

The facts involved an Indian band’s refusal to collect and remit the GST from non-Indigenous patrons because the band itself had established its own commodity tax regime pursuant to the inherent right of self-government, as so asserted by the band. The Federal Court determined that the band’s commodity tax was not “a current activity that is a modern expression of the practice, custom or tradition of ‘communal sharing’ and is consequently not an exercise of an aboriginal right protected by

section 35 of the Constitution Act, 1982 ” (at para 42). As such, it found the obligation to collect and remit GST from sales to non-Indigenous purchasers did not infringe the band’s Aboriginal rights. [ 96 ] I recognize, as did the QB judge, that none of the cases she cited were directly on point and that the Appellants’ theory of its defence rested on its own unique facts. However, it is important to remember that what was before the QB judge was an application to dismiss for want of prosecution.

This required her to consider whether there was any merit to the appeal, or as the Court said in Jackson , “whether or not the appeal is frivolous and without merit” (at para 30) or as in R v Bremner , 2019 BCSC 1284 , whether a reasonably arguable ground had been identified. Regardless of whether the merit bar should be set as low as the Court expressed in Jackson , the QB judge was not called upon to definitively rule on the substantive issues. This is so given that the merits assessment is just that: an assessment. In an application to dismiss an appeal for want of prosecution, a

summary conviction appeal judge is not tasked with making a final determination of the underlying appeal. Rather, the judge must assess the relative strength of an appellant’s arguments and exercise discretion based on that assessment in conjunction with the other Carter factors. [ 97 ] Finally, it must be underscored that the merits of the underlying appeal is but one factor in the Carter analysis. Even if the QB judge misunderstood the substantive issues in the Appellants’ appeal from the Trial Decision , her decision was discretionary in nature and,

importantly, took the other Carter factors into account. As explained above, a decision to dismiss an appeal for want of prosecution is owed deference on appeal and ought not be lightly disturbed. 4. The significance of Haida Nation and the Watson decisions [ 98 ] The Appellants contend the Supreme Court decision in Haida Nation was consequential as having confirmed the flexible nature of the Honour of the Crown principle and giving it fresh legal force and relevance beyond the

interpretation of treaties, contracts, grants, or legislation. They say Haida Nation stands for the basic proposition that the Crown must act honourably in all of its dealings with Indigenous people and that it is a source of enforceable affirmative obligation on the Crown. This means, the Appellants say, that it can give rise to different obligations.

In addition, the Appellants say Haida Nation is significant for the Supreme Court’s recognition of, and comments about, pre-existing Aboriginal sovereignty and how the Crown’s asserted sovereignty and de facto control of land and resources formerly in the control of Indigenous people have to be reconciled through honourable negotiations and modern treaties. [ 99 ] The Appellants’ argument before the QB judge about the import of Haida Nation and how it could or should impact her assessment of the merit criterion was not particularly well developed.

The QB judge, much like this Court, was left with little more than sweeping statements of principle and bits and pieces from an array of case law from which she was expected to discern not just the Appellants’ argument, but its relative strength. What I am left with is the overly simplified proposition that Haida Nation along with other more recent jurisprudence may make a difference, if the appeal is allowed to continue. With respect, as framed, that submission calls for little more than speculation. [ 100 ] This brings me to the Federal Court decision in Watson .

The central issue in the Watson litigation was whether two separate treaty signatory bands were wrongly amalgamated by Canada. Chief Chacachas and Chief Kakisiwew each fixed their mark on Treaty 4 between Her Majesty the Queen and the Cree and Saulteaux Tribes at the Fort Qu’Appelle and Fort Ellice on behalf of their respective bands and their members. Treaty 4 promised a reserve for each band along with other assurances. In 1881, a joint reserve was surveyed by Canada for the Chacachas and Kakisiwew Bands. The surveyed lands were not treated by Canada as reserves for those two bands.

In 1884, the two bands were combined into one when Chief Ochapowace was elected chief of the amalgamated bands. This band became known as the Ochapowace Band. [ 101 ] The Watson litigation resolved the long-standing question of whether the Kakisiwew and Chacachas Bands had agreed to amalgamation. The Federal Court found the two bands had indeed been amalgamated under the Indian Act without their consent, and that the Crown had breached various fiduciary duties it owed to the bands and, in particular, failed to implement and fulfill its treaty obligations.

The Court also concluded the Ochapowace Band continued to exist as the only Indian Act band. [ 102 ] Notwithstanding this very comprehensive and important decision, there are several reasons why Watson does not offer much, if any, assistance to the Appellants. First, the issues in Watson had not been decided at either the time of the Trial Decision or the Dismissal Decision . As such, it can hardly be argued that the QB judge erred in failing to consider the impact of a matter that had not yet been determined by the Federal Court.

Further, the QB judge cited Watson 2017 , another decision involving the same parties in the context of the same dispute as Watson , signalling that, at the very least, she was apprised of the ongoing litigation between the parties before her. However, the significance (if any) of this litigation to the Crown’s dismissal application was not mentioned in the Appellants’ Queen’s Bench memorandum of law. [ 103 ] Second, the Appellants claim that the trial judge entirely dismissed the contentious history between the First Nation and the Crown as being a relevant factor. I interpret the Trial Decision differently.

In this respect, paragraph 11 of the Trial Decision provides as follows: [11] Defence has called evidence that two bands had been improperly consolidated on one reserve. Whether that is so, or not, is irrelevant to the issues of this case. The business which precipitated the demand for GST returns is situate on a reserve administered by a properly constituted Band council. Whether there should be two reserves and two chiefs has no bearing on whether the returns must be filed.

The defence position is that the Government of Canada has breached a fiduciary duty to the band or people by forcing an amalgamation of two bands without consultation. Even if there were a proven breach of fiduciary duty in the amalgamation there is no proven link to the problem here of failing to file returns .

The defendants cannot rely on an unrelated breach as justification for breaking the law. (Emphasis added) [ 104 ] The trial judge considered the complex history between the parties and explained that no matter what the true situation between them may be, such history was not determinative nor relevant to the issues at hand. As the trial judge noted, even if the Crown had breached its fiduciary duties during the amalgamation process, as was subsequently held in Watson , that determination would not impact the result at trial. I agree.

I fail to see how a determination by a judge in a separate and distinct legal proceeding to the effect that the Crown had breached its fiduciary duties with respect to the amalgamation of the bands could somehow relieve the Appellants’ commodity tax obligation or be interpreted to suggest that the breach of the Honour of the Crown in the context of amalgamation of bands implied that the Crown had also failed to respect that responsibility in all of its other dealings with the Appellants. [ 105 ] Further, the Appellants appear to rely on Watson , not so much for its legal holdings, but as proof of the steps it took to move that litigation along.

The Appellants submit that Watson accentuates the importance of reconciliation, which it says should have been a relevant factor in the QB judge’s consideration of the Crown’s application to strike. Setting aside the reconciliation consideration, as the QB judge properly noted, an unrelated breach of the Crown’s fiduciary duties did not operate to relieve the Appellants from their obligation to pay and remit taxes to the federal government. That same logic can be extended to the Appellants’ argument that Watson demonstrates their diligence in prosecuting matters between them and the Crown.

Put another way, diligence or progression in an unrelated legal proceeding involving the same parties cannot be interpreted to mean that the Appellants were diligent and committed to progressing the present appeal or that they should be excused for not pressing the matter forward because of their time commitments in the Watson case. In any event, to the extent there was evidence to show the two matters were legally or procedurally connected, it was not adduced.

[ 106 ] The Appellants also point to Watson for the proper approach to take with oral history evidence. I do not read Watson as representing a shift or significantly altering the approach to oral history from that taken by the QB judge in the present matter. They also repeat their argument that the Honour of the Crown extends into the realm of litigation conduct undertaken in the course of criminal proceedings. In my view, that

interpretation extends far beyond the holding in Watson and, as discussed above, is contrary to what the Federal Court of Appeal said in Stoney Band . [ 107 ] Finally, the Appellants could be understood to rely on Watson for the proposition that it established or affirmed a right to self- government and as indirectly deciding that they had reserved the right to create their own taxation scheme. That

interpretation, in my view, goes well beyond what Phelan J. determined in Watson . While Watson held that both the Chacachas and Kakisiwew Bands were treaty bands possessing collective rights under Treaty 4, this finding does not automatically lead to the conclusion that there was a corresponding right to self-governance and the right to choose to impose their own taxes and eschew the federal taxation scheme. Whether such a right exists is a matter for further litigation. 5. Additional arguments raised by the Appellants [ 108 ] The Appellants raised a number of additional grounds of appeal in their factum.

Although they were not directly canvassed in oral argument, if at all, I will touch on each briefly. The specific grounds are these: (

a) the trial judge undervalued the evidence of the Elders; (

b) the trial judge ignored the evidence of the historian experts; (

c) the trial judge made findings of fact based on his own research that was not in evidence before the Court; (

d) the trial judge did not find a defence of due diligence; and (

e) the trial judge failed to find an abuse of process. [ 109 ] The Appellants broadly argue that the trial judge failed to give sufficient weight to the oral history evidence and the testimony of the elders. The trial judge carefully assessed that testimony but chose to give it little weight. He provided reasons for why he did so. Absent an error in principle, the Appellants’ argument amounts to an attack on the credibility findings or the weight assigned to this evidence by the trial judge.

While such matters are not immune from appellate review, they are accorded substantial deference by an appellate court. [ 110 ] The same observations can be made with respect to the expert evidence. Once again, the trial judge gave little, if any, weight to this evidence. He expressed concern with the lack of impartiality and independence of the Appellants’ witnesses.

Respectfully, given the longstanding concern over whether an expert is sufficiently independent, unbiased and impartial, he was obliged to take such matters into account (see White Burgess Langille Inman v Abbott and Haliburton Co. , 2015 SCC 23 , [2015] 2 SCR 182). Without pointing to any palpable and overriding error, the Appellants’ argument is simply a disagreement with how the trial judge weighed this evidence [ 111 ] In their third argument, the Appellants assert that the trial judge erred by making findings based on his own historical research.

They say the trial judge failed to give them a list of the authorities he had used in his research. On its face, there may be some strength to this argument if that is indeed what had occurred (see Saskatchewan v Good Spirit School Division No. 204 , 2020 SKCA 34 , 445 DLR (4th) 179), but it is difficult to see any such error in this case as being one that affected the bottom line of the trial judge’s decision. [ 112 ] The Appellants next argue the trial judge erred in how he handled the defence of due diligence.

The trial judge recognized that the charges were strict liability offences for which a due diligence could be r

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