• Infringement of Treaty Right Leads to Stay of Proceedings: R. v. Reynolds, 2017 NBCA 36, New Brunswick Court of Appeal (Richard, Green and French JJ.A.), 31 August 2017
  • October 11, 2017
  • The New Brunswick Court of Appeal affirmed a lower court decision which stayed charges against an Aboriginal hunter. The respondent had hunted moose and traded the moose meat to a non-Aboriginal individual in exchange for a car. The Crown did not lay any charges against the respondent for the hunting or sale of the moose meat, which fell within a 1760 Treaty right, but charged him as being an accessory to the non- Aboriginal purchaser’s violation of the provincial Fish and Wildlife Act. The Provincial Court found that such charges constituted an “end run” around the respondent’s Treaty rights, and ordered a stay of proceedings. The Court of Appeal affirmed this decision. There was no reasonable possibility that the Crown could justify the infringement of the respondent’s Treaty right, or that it could prove that Aboriginal leaders in New Brunswick agreed to forebear that trading right. The continued prosecution of the respondent would be “unfair and oppressive”.

    The respondent Reynolds is a member of the Maliseet people, part of the Woodstock First Nation, and a beneficiary of a 1760 Treaty between the Maliseet and the British Crown. Reynolds shot and killed a moose, and then traded the meat to a non-Aboriginal man named Knox in exchange for a car. The hunting of moose, and the subsequent trading activity, fell within the terms of the 1760 Treaty considered by the Supreme Court of Canada in the Marshall decisions of 1999. The Crown, however, charged Knox under the provincial Fish and Wildlife Act for unlawfully trading moose meat and unlawfully possessing moose meat, since Knox did not have a Special Transfer Permit under the Act authorizing such possession. Knox pleaded guilty to these offences.

    In 2013, the Crown charged the respondent as being an accessory to Knox’s offence pursuant to s. 94 of the Provincial Offences Procedure Act.

    The Crown’s initial position was that the respondent’s Treaty rights were “inherently limited”, and that a right to trade was permitted only if it was lawful for non- Aboriginal persons to acquire or possess the product being traded. The respondent’s right to trade therefore did not permit him to trade with Knox, since it was unlawful for Knox to acquire and possess the moose meat. Further, charging an Aboriginal person as an accessory to a regulatory offence did not infringe upon any Treaty rights, and the Crown did not have to justify any infringements. Over the course of the proceeding, the Crown’s position changed. The respondent learned about a policy implemented by New Brunswick since 2003 (“2003 Policy”) aimed at the sale of moose meat by Aboriginal hunters. On the basis of the 2003 Policy, the New Brunswick government would not issue Special Transfer Permits to individuals allowing them to take possession of moose meat from Aboriginal hunters. The Crown then changed its theory of the case to argue two main points: (1) there was an agreement with New Brunswick chiefs in September 2003 to vary or suspend the Treaty right to exclude the right to trade in moose or (2) even if there was no agreement with New Brunswick First Nations, there was adequate consultation about the 2003 Policy, and any infringement of Treaty rights was justified.

    In December 2014, the Provincial Court judge ordered that the charges against the respondent be stayed. The Court agreed with the respondent that such charges represented an “end run” around Treaty rights, as the 2003 Policy effectively prohibited the respondent’s right to trade. Further, these charges constituted an attempt to re-litigate what had been decided in Marshall. The Provincial Court judge also held that there was no reasonable possibility that the Crown could justify the infringement of the Treaty rights.

    In January 2016, the Summary Conviction Appeal judge affirmed this decision but for other reasons: 2016 NBQB 18. Morrison J. held that the Crown should have been allowed to lead further evidence about the September 2003 meeting with First Nation leaders and the alleged agreement. However, he held that a stay of proceedings was the appropriate remedy. Morrison J. referred to passages in the R. v Marshall; R. v. Bernard, 2005 SCC 43 concerning the inherent complexity of Aboriginal rights cases, and the inadequacy of the criminal process for dealing with such claims. In Marshall/Bernard, McLachlin C.J.C. stated (at para. 144):

    “when issues of aboriginal title or other aboriginal rights claims arise in the context of summary conviction proceedings, it may be most beneficial to all concerned to seek a temporary stay of the charges so that the aboriginal claim can be properly litigated in the civil courts”.

    The Court of Appeal granted leave to appeal, but dismissed the Crown’s appeal largely for the reasons of the Provincial Court judge.

    As discussed in the Marshall decisions, the scope of the Treaty right goes beyond hunting, and extends to the right to trade products of hunting for the purpose of securing a moderate livelihood. Treaty rights can be regulated in accordance with the Sparrow test for justification, for legislative goals like conservation.

    The Court of Appeal agreed with the Crown that the Summary Conviction Appeal judge erred in finding that there must be a stay of proceedings due to the complexities of Aboriginal and treaty rights. The Supreme Court of Canada in Marshall/Bernard did not contemplate that there be a permanent stay of proceedings in each case, and the respondent Reynolds did not seek a permanent stay.

    The Court of Appeal dismissed the appeal, however, on the basis that a stay of proceedings was appropriate. The Provincial Court judge made no reviewable error in finding that there was no reasonable prospect of the Crown establishing any “agreement” with First Nations leaders in September 2003. The evidentiary record was inconsistent with any such agreement. Further, there was no basis for finding that the chiefs had the authority to vary or alter a treaty right. French J.A. stated:

    For the purposes of Mr. Reynolds’ application, it is not necessary to determine whether the Chiefs possessed the authority, at law, to vary or suspend rights under the 1760 Treaty. It is sufficient to say that it is very difficult to imagine, in the absence of writing, circumstances where a constitutionally protected treaty could be found to have been amended, or the rights under that treaty compromised, by anything less than very clear evidence as to an agreement and the terms of such agreement. While many such treaties, including the 1760 Treaty, were not fully reduced to writing, what is or was sufficient to find an intention to conclude a bargain at that time, will not be so readily accepted for establishing an agreement in the present, especially an agreement respecting a treaty that is now constitutionally recognized. In this case, not only is there a lack of a written agreement, there is a lack of evidence supporting an agreement in principle or identifying the terms of an agreement. In the end, all that may be concluded is that in prosecuting Mr. Reynolds, to overcome his admitted treaty right to trade with Mr. Knox (but for justification), the Crown is relying on an agreement which it has no reasonable prospect of establishing at trial.

    The Court of Appeal also agreed with the findings of the Provincial Court judge that, on the evidence put forward by the parties, there was “no reasonable prospect of the Crown establishing justification”. The 2003 Policy denied the beneficiaries of the 1760 Treaty the right to trade with non-Aboriginals. It was also noted that the non-Aboriginal moose hunt had “continued unaltered” despite the alleged concerns about conservation. French J.A. reviewed the Sparrow test for justification at length and stated:

    In my view, the Policy and the impugned provisions of the Act form a regulatory scheme which gives rise to a prima facie infringement of Mr. Reynolds’ treaty right to trade. While the Crown submits that trade in moose is only a small or insignificant part of the trade right, the Act effectively denies the exercise of the treaty right to trade in connection with moose. For the purposes of this part of the analysis, the application of the Act is an adverse and unreasonable interference with the treaty right. The judge was correct to conclude a prima facie infringement of the right to trade existed.

    The Badger case makes clear that treaty rights can be justifiably infringed. It was necessary for the Crown to lead evidence about the allocation of the resource and the priority of Treaty rights. No such evidence was led by the Crown in this case. French J.A. stated:

    On the record before the Provincial Court judge, I do not disagree with his assessment that “there is no reasonable prospect of the Crown satisfying the justification test [...] with a policy that completely denies the aboriginal treaty right”. In assessing the prosecution of Mr. Reynolds, this is the most that could be said and it is a weighty factor in his request for a stay. If the Crown had more persuasive submissions or evidence, which it anticipated relying on at trial, it should have revealed them in response to the application.

    The Court of Appeal considered the argument of the respondent that, based upon prior court decisions, Aboriginal peoples are not subject to prosecution for alleged hunting or trading offences. French J.A. concluded that the respondent overstated the proposition:

    Simply, the proposition which Mr. Reynolds attributes to these cases overstates what they decided. There is no doubt that an Aboriginal cannot be prosecuted pursuant to provisions under the Act, which infringe a constitutionally protected treaty right – unless the prohibition is a justifiable regulation of the treaty in accordance with Sparrow and Badger. Whether prohibiting a non-Aboriginal from acquiring moose by trade with an Aboriginal, who is lawfully exercising a treaty right to trade, is valid, is an issue that is not before this Court.

    The Court of Appeal held that the charges against the respondent should be stayed as an abuse of process. The Crown’s theory of the case was based upon the alleged 2003 agreement with Aboriginal leaders or, in the alternative, that the 2003 Policy constituted a justifiable infringement of Treaty rights. Based upon the evidence, neither proposition raised triable issues. The Court of Appeal held:

    … the totality of the circumstances inescapably leads to the conclusion that the continued prosecution of the charges against Mr. Reynolds is unfair and oppressive. The burden of continuing to defend these charges is disproportionate to the interest of having these charges determined at trial. The prosecution of Mr. Reynolds in these circumstances amounts to an abuse of process.

    The continued prosecution of the respondent would undermine society’s expectations of fairness. The Court of Appeal also noted the relevance of the Honour of the Crown:

    The decision to charge Mr. Reynolds, in view of the admitted treaty right, and to pursue the prosecution of the charges based on weak and then changing theories of his liability is, at the very least, inconsistent with the principles respecting the honour of the Crown, as applied by the Supreme Court in Marshall in connection with the very treaty rights at issue in this case. … The Crown simply resorted to the enforcement [of] a law of general application which is inconsistent with Mr. Reynolds’ treaty right to hunt and trade. This did not discharge the duty owed to the Aboriginal people of New Brunswick.

    The Court of Appeal therefore held that the Provincial Court judge was correct to conclude, in the circumstances, that the prosecution of Mr. Reynolds amounted to an abuse of process. The only appropriate option available was a stay of proceedings. The Crown’s application for leave to appeal was granted, but the appeal was dismissed.