Date: 20070914
Docket: T-971-06
Citation: 2007 FC 920
Ottawa, Ontario, September 14, 2007
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
CHIEF DENTON GEORGE, ROSS ALLARY, ELVIS
HENRY, AUDREY ISAAC,
GERALD KENNY, PETRA BELANGER AND LILA GEORGE, ON
BEHALF OF
THE OCHAPOWACE FIRST NATION (INDIAN BAND
NO. 71) AND CHIEF
MURRAY IRONCHILD, M. BRENDA KAISWATUM, JOHN
ROCKTHUNDER, WILLIAM LAVALLEE, NELSON WATETCH, DELBERT KAISWATUM,
VALERIE IRONCHILD, JASON WESAQUATE,
ALPHONSE OBEY, HAROLD KAISWATUM, WAYNE PRATT, DENNIS WESAQUATE AND KEITH
FRANCIS ON BEHALF OF THE PIAPOT FIRST
NATION (INDIAN BAND NO.
75), BEING MEMBER FIRST NATIONS OF THE QU’APPELLE VALLEY
INDIAN DEVELOPMENT AUTHORITY (QVIDA)
Applicants
and
THE ATTORNEY GENERAL OF CANADA
AND
THE ROYAL CANADIAN MOUNTED POLICE
Respondents
REASONS FOR ORDER AND ORDER
[1]
This is a
judicial review of the Royal Canadian Mounted Police (the RCMP) decision not to
lay trespass or other charges against the Prairie Farm Rehabilitation
Administration (the PFRA) and the Saskatchewan Watershed Authority (the SWA) in
relation to their activities on, and affecting, the First Nations’ reserve
lands. While the issue of police discretion has been canvassed time and again
by this Court and other courts of the country, this application squarely raises
for the first time the potential impact of treaty and aboriginal rights on that
discretion.
[2]
After
having carefully reviewed the extensive record filed by the applicants and
weighed the respective arguments of both parties, I have come to the conclusion
that this application for judicial review must be dismissed. The following are
my reasons for coming to that decision.
FACTS
[3]
The Piapot,
Chacachas and Kakisiwew bands were Treaty 4 signatory First Nations. Pursuant
to that Treaty, a survey of lands to be held back for all three of these First
Nations was conducted, and reserves were created in the 1880’s for the three
First Nations occupying frontage on both sides of the Qu’Appelle Valley, in the
southern part of Saskatchewan.
[4]
The PFRA
was developed as a result of the severe drought that plagued the Prairie provinces during the 1930’s. It is a
branch of Agriculture and Agri-Food
Canada and its
programs focus on ensuring the sustainable use of the Prairie’s soil and water
resources. The SWA was established by the Saskatchewan Government in 2002 to
assist in provincial water management. As a result, the SWA is responsible for
the allocation of ground and surface water inventory and the administration and
control of all provincial water infrastructures.
[5]
In the
1940’s, the PFRA built dams and water control structures in the Southern
Saskatchewan Qu’Appelle Valley. While the respondents concede that there was
increased water encroachment onto a number of Reserve Lands as a result of these
structures, there is much disagreement on the extent of these damages, on the
consultation that took place with the First Nations before these structures
were constructed, on the compensation agreed on and paid, on the contamination
and pollution of the Qu’Appelle River that would have occurred because of the
flooding, on the alleged admission of unlawful conduct by the Crown and on the
negotiations that took place to secure First Nations’ consent for the flooding
of their lands, on the actual trespass by individual members of PFRA and on the
question as to whether water is still encroaching on reserve land and whether
this encroachment constitutes a trespass under the Band By-laws, Criminal Code
or common law.
[6]
These
issues are addressed at length in the two affidavits filed in support of the application
for judicial review, one by Mr. Ross Allary, a councillor of the Ochapowace
First Nation, and the other by Mr. William Lavallee, a councillor of the Piapot
First Nation, both of whom have been involved as representatives of their
Nations on the Qu’Appelle Valley Indian Development Authority (QVIDA). Both
affidavits are dated May 17, 2006 and are identical in every respect except
where the affiants make reference to their respective Bands. These affidavits
are supported by a massive amount of exhibits, which make up most of the eight
volumes of the applicants’ Motion Record.
[7]
Counsel
for the respondents has strenuously opposed the admissibility of these
affidavits and exhibits on several grounds. Indeed, it appears that this issue
was raised by the respondents during a case management call, but Mr. Justice
Hugessen quite properly ruled that questions regarding the admissibility of
affidavit evidence should be raised at the hearing of the judicial review
application.
[8]
Before
going any further with the recital of the facts, I must pause and assess this
preliminary objection of the respondents as it will obviously be of some
bearing on the background information that can be taken into consideration in
ruling on this application for judicial review.
[9]
I agree
with counsel for the respondents that much of the material included in the applicants’
supporting affidavits cannot be considered by this Court and must be excluded
as there is no evidence that they were before the decision maker at the time
when the decision was made. It is trite law that in a judicial review
application, the only material that should be considered is the material that
was before the decision maker: see, for example, Lemiecha v. Canada
(M.E.I.) (1993), 72 F.T.R. 49, at para. 4; Moktari v. Canada
(M.C.I.) (2001), 200 F.T.R. 25, at para 34; Toussaint v. Canada (1993), 160
N.R. 396 (F.C.A.) at para 5.
The only exceptions to this rule have been made in instances where the evidence
was introduced to support an argument going to procedural fairness or
jurisdiction (as in McConnell v. Canada, 2004 FC 817 at
para 68, upheld at 2005 FCA 389), or where the material is considered general
background information that would assist the Court (see, for ex., Chopra
v. Canada (Treasury Board) (1999), 168 F.T.R. 273 [Chopra]
at para 9).
[10]
The
rationale for that rule is well known. To allow additional material to be
introduced at judicial review that was not before the decision maker would in
effect transform the judicial review hearing into a trial de novo. The
purpose of a judicial review application is not to determine whether the
decision of a tribunal was correct in absolute terms but rather to determine
whether its decision was correct on the basis of the record before it: Chopra,
at para 5; Canadian Tire Corp. v. Canadian Bicycle
Manufacturers Assn., 2006 FCA 56 at para 13.
[11]
The
applicants contended that they have provided the information they “believe” was
within the knowledge of the RCMP when the decision not to lay charges was made,
and that it is up to the respondents to prove the information in question was
not taken into account by the RCMP when it made its decision. In the absence of
any information in affidavit form from the RCMP to the effect that they did not
have the information filed, and in light of the many meetings that took place
between the RCMP and the applicants where the information contained in the
affidavits were discussed, it is the applicants’ submission that the material
appended to the affidavits was available to the RCMP.
[12]
The
applicants’ thesis, which for all intents and purposes places the onus on the
respondents to prove that the disputed information was not taken into account
by the RCMP when it made its decision, quite simply does not hold water. The
onus clearly falls on the applicants to provide admissible evidence to prove
the federal board, commission or other tribunal acted in a manner amounting to
an established ground for review under section 18.1(4) of the Federal Courts
Act, R.S.C. 1985, c. F-7 (the Act). Unless an affiant clearly states
that such and such document was communicated to the decision maker, this Court
cannot speculate as to what was before the board or tribunal when it came to
its decision. Applicants’ counsel cannot, through oral submissions, assert
beyond what is in the affidavits that all the documents were provided to the
RCMP. Counsel cannot provide evidence that is not before the Court, nor
speculate beyond what is attested to in the affidavits.
[13]
On the basis of these
principles, I am satisfied that the following information was before the
decision maker. First of all, both affiants testify at paragraph 108 of their
respective affidavits that the QVIDA First Nations and their legal counsel met
with representatives of the RCMP and provided the RCMP representatives with an
information package regarding the basis for requesting an RCMP investigation
and the underlying charges. This information package is appended to the
affidavits at Exhibit “CU2” and is therefore clearly part of the record.
[14]
Similarly, the
affiants also make reference to a number of correspondence exchanges between
the RCMP and their legal counsel and discuss a number of meetings between the
applicants and the RCMP. These references are made at paragraphs 61, 83, 103,
104 and 106 to 112 of their respective affidavits. The information contained in
those paragraphs as well as the exhibited copies of the correspondence, meeting
minutes and meeting attendance sheets are equally part of the record, as they
could arguably have been before, or at least within the knowledge of, the
decision maker.
[15]
Finally, the affiants
indicate at paragraphs 83 and 104 of their affidavits that the RCMP were provided
with a copy of the report authored by EBA Engineering Consultants Ltd., which
reviewed the historical water quality of the Qu’Appelle River Basin. Accordingly,
this report would have been before the decision maker.
[16]
The respondents are
also prepared to accept, rightly so in my view, that paragraphs 1 to 5 of the
affidavits should also be accepted to the extent that they lend background
information in relation to the applicants’ claims of aboriginal and/or treaty
rights in relation to the RCMP. In the same vein, they also recognize that
paragraphs 112 and 113 of the affidavits are admissible with respect to the
issue of procedural fairness as they relate to the previous involvement of a Department
of Justice counsel.
[17]
Of course, it is
worth emphasizing that this whole debate on the admissibility of the affidavits
and of the material appended could have been avoided had there been a request
pursuant to Rule 317 of the Federal Court Rules, SOR/98-106 (the Rules)
to obtain the material relevant to the application that was in the possession
of the decision maker. This Rule was enacted precisely to obviate the
difficulties of determining what was before the administrative authority at the
time it reached its decision.
[18]
Counsel for the
applicants tried to suggest that he could only have requested material he did
not already have. On that reading of the Rule, an applicant will bring forward
the information in his or her hands and would be prevented from asking the
tribunal to provide information that the applicant already has.
[19]
Such a construction
of Rule 317 of the Rules would subvert, in my humble opinion, the very
purpose of that Rule. The requirement to produce under Rules 317 and 318 of the
Rules is intended to ensure that the record that was before the tribunal
when it made its decision or order is before the Court on judicial review. Obviously,
a party should not request material that is already in its possession. That
being said, the prudent course of action would be to request from a tribunal or
other decision maker the relevant material that is in its possession if there
is any prospect of a debate as to what was before the tribunal when it made its
decision. Bearing in mind that the applicant has the burden of establishing, by
affidavit or otherwise, what was before the decision maker, the failure to make
a request under Rule 317 of the Rules can only work to the applicant’s
disadvantage. The Federal Court of Appeal decision in The Queen v.
Merchant (2000) Ltd., 2001 FCA 301 stands for that proposition. While
the facts were somewhat different in that the applicant was contending there
was no material before the Minister reasonably capable of supporting his
conclusion, it does not detract but indeed reiterates that it falls upon the
applicant to show what information was before the decision maker. Writing for a
unanimous Court, Justice Sexton said (at paragraph 10 of his reasons):
[10]
Merchant, as the Applicant for judicial review of the Minister’s decision, had
the burden of establishing that the Minister did not have such evidence when he
exercised his discretion to issue a Requirement. Rule 317 of the Federal
Court Rules permits a party to request material relevant to an application
that is in the possession of a tribunal whose order is the subject matter of an
application. Merchant neither asked for this material nor invoked the
provisions of Rule 317. Therefore, no serious complaint can be made by Merchant
that the basis of the Minister’s decision is not before this Court. Because the
basis of the Minister’s decision is not before this Court, Merchant is unable
to show that the discretion was improperly exercised.
[20]
The respondents also
raise a second objection to the admissibility of the affidavits submitted by
the applicants. They contend that they are replete with statements made on
information and belief, with hearsay and with opinions not based on personal
knowledge. This, in their view, is contrary to Rule 81 of the Rules,
which sets out that affidavits shall be confined to facts within the personal
knowledge of the deponent.
[21]
It is well
established that on a judicial review application, an affidavit must be limited
to a statement of facts. It must not contain opinions, points of view or
arguments by the affiant. The principle, which has its source in the common law
rule of hearsay, can be explained by the fact that it must be possible to
cross-examine the affiant. Its expression can now be found in Rule 81 of the
Rules: Bastide v. Canada Post Corp., 2005 FC 1410; Ly
v. Canada (M.C.I.), 2003 FC 1184; Akomah v. Canada
(M.C.I.), 2002 FCT 99; Canadian Tire Corp. v. P.S.
Partsource Inc., 2001 FCA 8.
[22]
When looking
carefully at the affidavits filed by the applicants, it is true that a lot of
their content is based on hearsay and information the affiants could not have
personal knowledge of. But in all fairness, this is also true of Mr. Woodvine’s
affidavit, submitted by the respondents. Mr. Woodvine, a senior hydrologist
with the PFRA, does not say what the basis of his ability to swear the
affidavit is, attests to a number of things he could not have had personal
knowledge of, and recognizes explicitly in several places that his knowledge is
based on information and belief. While I am not prepared to exclude all of that
evidence, if only because much of the information provided is of a factual
nature, its second hand nature does nevertheless cast a shadow on its weight.
[23]
Equally problematic
is the fact that most of the documents submitted by the applicants as exhibits
to their affidavits are provided without any explanation as to where these
documents were obtained, the authority or roles of the individuals who have
authored or received them or the basis upon which the applicants are relying
upon the information in those documents. It is commonly accepted that a
document is not rendered relevant or admissible simply because it is attached
to an affidavit. The affidavit evidence must prove the document before it can
be admitted or alternatively submit it on information and belief with the
source of that document or the person whom the document was received being
established in the affidavit: Inhesion Industrial Co. v. Anglo
Canadian Mercantile Co. (2000), 6 C.P.R. (4th) 362 (F.C.). I am
mindful of the facts that courts must adapt the rules of evidence to take into
account the special nature of aboriginal claims and the evidentiary
difficulties in proving them, as directed by the Supreme Court of Canada in
cases like Mitchell v. M.N.R., [2001] 1 S.C.R. 911 [Mitchell]
and R. v. Van der Peet, [1996] 2 S.C.R. 507 [Van der
Peet]. But this does not mandate the blanket admissibility of such
evidence, especially when it does not relate to ancestral practices in the
context of a land claim.
[24]
Counsel for the
applicants and for the respondents have battled out this admissibility issue with
a few more arguments, but I do not intend to dwell on them any more. At the end
of the day, the critical issue is the relevance of the evidence submitted by
both parties. I agree with counsel for the respondents that much of the
information contained in the affidavits submitted by the applicants is not
directly germane to the issues before the Court in the present judicial review
application. It relates to reserve boundaries, frontage, water contamination
and damages resulting from flooding. While this evidence may be put forward in
support of an aboriginal land dispute claim or a claim for damages resulting
from flooding, it does not bear much relevance to a judicial review application
of a decision made by the RCMP not to lay charges for trespass.
[25]
For all of the
foregoing reasons, I shall not give too much weight to the affidavits and the
appended material filed by the applicants, except as they relate to the issues
raised in this application for judicial review. I stop short of excluding
altogether all the information that does not relate to the RCMP involvement or
to the role of the Department of Justice counsel, as requested by the
respondents, as I am prepared to accept that the affidavits do contain some
interesting background historical information. The value of that information is
nevertheless severely restricted and subject to caution, for the various
reasons mentioned in the preceding paragraphs.
[26]
This parenthesis with respect to the
admissibility of the affidavit evidence being closed, what then is left in
terms of established facts relevant to the issues raised in this application
for judicial review? In June of 1986, QVIDA submitted a claim asserting that Canada had breached its lawful obligations under Canada’s Specific Claims Policy by failing to comply with the
provisions of the Indian Act, R.S.C. 1985, c. I-5 (the Indian Act)
when it allowed PFRA to build control structures along the rivers and lakes of
the Qu’Appelle Valley in the 1940’s, which resulted in permanent flooding and
alienation of their lands. In 1992, the Department of Indian and Northern
Affairs Development (the DIAND) closed that claim due to a lack of activity on
the file.
[27]
In 1994, QVIDA asked
the Indian Claims Commission (the ICC) conduct an inquiry into the wrongful
flooding of First Nation lands. As a result of that inquiry, the ICC found that
the use and occupation of the reserve land for flooding could not be authorized
under the Indian Act and that it had occurred without Band consent. Canada validated the QVIDA Flood Claim based on the recommendation
of the ICC, and a Protocol Accord was signed in August of 2000 to be used for
the flood claim negotiations. But in 2003, negotiations broke down when the
First Nations indicated that they would no longer allow the operation of the
structures without annual compensation being paid. In the following months, a
number of the First Nations broke away from the formal negotiation group and
continued negotiations on their own accord. The respondents claim that the
structure located on the Ochapowace First Nation lands has not operated since
that time and that the Piapot First Nation has no structure that impacts it
directly.
[28]
From that point
forward, the QVIDA negotiation group consisted of three Bands, two of which are
the applicant First Nations of Piapot and Ochapowace. In 2005, it appears that
negotiations resumed with this QVIDA negotiation group involving INAC, PFRA and
SWA, but have yet to result in a resolution.
[29]
In March and May of
2005, the applicants Piapot First Nation and Ochapowace First Nation passed
Band Council By-laws that create offences of trespass for the interference of
the use of reserve land, including the flooding of land from external sources. The
applicants alleged that the activities of the PFRA and the SWA are in
contravention of these By-laws and of the Criminal Code.
[30]
The RCMP were first
involved in the dispute between QVIDA First Nations and Canada and Saskatchewan
on September 6, 2002, when Supt. McFadyen met with representatives of QVIDA to
hear about their complaints that PFRA employees attempted to access the Echo,
Crooked and Round Lake structures. In a letter dated October 15, 2002, Supt.
McFadyen advised QVIDA First Nations that PFRA was not entitled to enter onto
the lands and that PFRA would comply with the First Nations’ direction not to trespass.
[31]
Following the release
of the EBA report in September, according to which there were significant
problems with the water quality in the Qu’Appelle River Basin, a copy was
provided to the RCMP and they were requested to confirm that PFRA would continue
to not attempt access to First Nation lands without permission. On October 1,
2003, Supt. McFadyen confirmed that the RCMP’s position regarding PFRA’s
trespass to First Nations lands remained the same, that PFRA was not entitled
to enter the lands without consent, and indicated that the role of the RCMP is
to prevent or respond to a breach of the peace between the parties, including
property damage.
[32]
On March 5 and April
23, 2004, QVIDA First Nations and their counsel met with the RCMP to discuss
legal mechanisms to stop alleged further trespasses. On May 6, 2004, Supt.
McFayden recommended a strategy that the First Nations should follow in case of
trespass: approach the trespassers, request that they leave, and give them time
to vacate. If they return or do not leave, “charges will then be appropriate,
and subject removed” (Exhibit CS2 of the Affidavit of Ross Allary).
[33]
In July 2005, the
First Nations again met with representatives of the RCMP and requested an
investigation into certain trespasses and other unlawful activity by PFRA. An
information package was provided for that meeting to the RCMP, which includes a
copy of the By-laws adopted by the First Nations, correspondence between the DIANA
with respect to these By-laws, excerpts of an unidentified Annotated Indian
Act, and various graphs and statistics relating to water management from
the SWA. It is interesting to note that in the comments provided by the DIAND
to the Chiefs and Councils with respect to the By-laws, their inapplicability
to actions which occur outside of the reserve boundaries was explicitly raised (Applicant’s
Record, vol. VII, at pp. 2443 and 2446).
[34]
The outcome of the
investigation requested in July 2005 was discussed in a further meeting that
took place on March 30, 2006. That meeting was attended by representatives of
the RCMP and of the QVIDA. Following that meeting, Sgt. Ré sent a letter to the
First Nations on April 18, 2006, advising them that, based on the information
provided, the RCMP would not be proceeding with charges.
[35]
A follow-up meeting
was held the next day between the First Nations and the RCMP; the trespass
investigation was discussed and the First Nations objected to the decision not
to lay charges. A letter dated May 8, 2006 from QVIDA counsel to Sgt. Ré
itemized the First Nations objections to the decision not to lay charges. On
May 17, 2006, Insp. Lerat corresponded with QVIDA counsel and informed him
that, on the basis of Sgt. Ré’s investigation and advice from Chris Lafleur,
Senior Counsel for the Department of Justice (Prairie Region), the RCMP had
decided not to lay charges for trespass or other unlawful activity.
THE IMPUGNED DECISION
[36]
While the decision
that is the subject of the present application for judicial review is, formally
speaking, that of Insp. Lerat which was communicated to counsel for the
applicants on May 17, 2006, it is helpful to reproduce the previous letter of
Sgt. Ré dated April 18, 2006. While a meeting took place between these two
letters, as explained in the previous paragraph, it nevertheless provides
helpful background into the decision not to lay charges. Indeed, the shorter
letter of May 18 appears to be merely a confirmation of the previous letter.
[37]
The letter from Sgt.
Ré to Mr. Peigan, negotiator for the QVIDA, reads as follows:
On April 13th, 2006, Mr.
Matthew Peigan attended the Regina Commercial Crime Section office and provided
a statement to an investigator regarding allegations of trespassing by
representatives from the Prairie Farm Rehabilitation Administration (PFRA) and
Saskatchewan Watershed Authority (SWA). The evidence obtained from Mr. Peigan
on behalf of QVIDA and other sources have been reviewed in conjunction with a
legal opinion received from the Department of Justice (Canada).
Based on all
the information gathered to this date we arrive at the following conclusions:
1) Piapot
First Nation, Sakimay First Nation and Ochapowace First Nation developed each a
set of bylaws which came into force during the summer of 2005. Letters used as
"Notice of Violation" were sent by the three First Nations to PFRA
and SWA alleging trespass by increase of waters upon the Piapot FN, Sakimay FN
and Ochapowace FN. The Bylaws drafted by the three First Nations cannot be
enforced due to the following:
• Bylaws
passed under Section 81 of the Indian Act are limited to the geographical
confines of the reserve.
• The
definition of trespass used in the three Bylaws expands on the common law
principle of trespass (one person's entering upon another's land without lawful
justification). To refute the charge, the alleged trespasser would have to
establish a lawful justification for being on the First Nation (If a civil
servant carries out his/her duties on the First Nation, he/she is there for a
lawful purpose pursuant to federal/provincial authority which supersedes the
Bylaws i.e. Section 9(1) of The Prairie Farm Rehabilitation Act and Section
6(1) of The Saskatchewan Water Corporation Act).
• The
Bylaws are outside the authority of the Indian Act because the general
principles of common law trespass contemplate trespass by persons, not by
inanimate things like water.
2)
Consideration was also given to a possible charge of mischief pursuant to
Section 430(1) of the Criminal Code if someone damaged First Nation's land by
flooding. Again the aspects of legal justification and colour of right are
covered as an exception in Section 429(2) of the Criminal Code. In view of the
provisions included in The Prairie Farm Rehabilitation Act and The Saskatchewan
Water Corporation Act, a prosecution under Section 430(1) cannot be pursued.
Based on the information gathered
through our investigation, the R.C.M.P. cannot proceed with charges in the
matter.
[38]
As for the letter
sent by Insp. Lerat to counsel for the applicants on May 17, 2006, the salient
part of it simply states:
[…]
Sgt.
Richard Ré, the investigator in this matter has completed this investigation
and it has been determined that there is insufficient evidence to proceed with
any charges related to Statutes of Canada, Province of Saskatchewan, or the
By-law Enacted by the three First Nations. The sensitivity of these matters has
not gone unnoticed, therefore consultation has taken place with Mr. Chris
LaFleur, Senior Counsel for Dept. of Justice / Prairie Region in Saskatoon. Mr.
LaFleur has also drawn the same conclusions that there is no validity to
pursuing charges for trespassing under the by-law.
It is the RCMP's responsibility
to investigate any matters relating to statute offences. This does not preclude
you or your organization from pursuing this matter on a civil basis.
[…]
THE
ISSUES
[39]
This application for
judicial review essentially raises two fundamental issues: 1) Should the
exercise of prosecutorial discretion by the RCMP be the subject of a judicial
review, and if so, what is the appropriate standard upon which to review its
decision not to lay charges? 2) If the decision of the RCMP is reviewable, have
the applicants provided any evidence to meet the appropriate standard of
review?
ANALYSIS
1)
Is judicial review available to control the exercise of prosecutorial
discretion?
[40]
There is no doubt
that police and prosecutorial discretion is one of the cornerstones of our
criminal justice system, allowing the enforcement of our criminal laws to adapt
to individual circumstances and to the complexities of real life. This cardinal
principle has been recognized time and again by our courts, and the Supreme
Court of Canada has confirmed that such discretion is not inconsistent with the
principles of fundamental justice entrenched in section 7 of the Canadian
Charter of Rights and Freedoms. As Justice
La Forest (speaking for the Court) wrote in R.
v. Beare, [1988] 2 S.C.R. 387 at p. 410-411:
The
existence of the discretion conferred by the statutory provisions does not, in
my view, offend principles of fundamental justice. Discretion is an essential
feature of the criminal justice system. A system that attempted to eliminate
discretion would be unworkably complex and rigid. Police necessarily exercise
discretion in deciding when to lay charges, to arrest and to conduct incidental
searches, as prosecutors do in deciding whether or not to withdraw a charge,
enter a stay, consent to an adjournment, proceed by way of indictment or
summary conviction, launch an appeal and so on.
The
Criminal Code provides no guidelines for the exercise of discretion in any of
these areas. The day to day operation of law enforcement and the criminal
justice system nonetheless depends upon the exercise of that discretion.
[41]
This discretion
permeates the entire criminal process, from the initial investigation stage
through to the conclusion of the trial, with the result that two persons having
seemingly committed the same offence may well be treated differently: R.
v. Poirier, [1989] M.J. No. 379 (Man. Prov. Ct.) (QL), quoted
with approval L’Heureux-Dubé, J. (for a unanimous court) in R. v.
T. (V.), [1992] 1 S.C.R. 749 [R. v. T. (V.)]. Courts have been
loath to intervene, except in the most exceptional circumstances, lest they be
perceived to blur the line between the executive and the judicial functions.
[42]
There are a number of
rationales for not interfering with prosecutorial discretion, some of a
theoretical nature and some others more practical. As just mentioned,
separation of powers has often been invoked in support of the view that courts
should not meddle with the administration of criminal law. This concern was
most explicitly stated by Viscount Dilhorne in Director of Public
Prosecutions v. Humphrys, [1976] 2 All ER 497 (HL) at p. 511:
A
judge must keep out of the arena. He should not have or appear to have any
responsibility for the institution of a prosecution. The functions of
prosecutors and of judges must not be blurred. If a judge has power to decline
to hear a case because he does not think it should be brought, then it soon may
be thought that the cases he allows to proceed are cases brought with his
consent or approval.
[43]
This rationale,
explicitly endorsed by the Supreme Court of Canada in R. v. T.(V.)
at para 17, is supplemented by other, more practical considerations. As noted
by the Supreme Court, if administrative law principles were to be imported into
the prosecutorial environment of the criminal law, judges would be called upon
to review an innumerable number of decisions, including the decision to charge
or not to charge, to prosecute or not to prosecute, to direct further
investigation or not to direct further investigation or to withdraw or not
withdraw a particular charge, which could in turn lead to the complete
paralysis of the administration of the criminal law. Since the decision to
investigate, to bring charges, to prosecute, to plea bargain or to appeal hinges
upon a myriad of factors, judicial oversight of those decisions would also
imply the review of masses of documents, and eventually reveal the Crown’s
policies and goals in the allocation of its resources and its overall
enforcement priorities. Not only would this be at odds with the most basic
premises of our constitutional arrangements, but it would also lead to a very
inefficient administration of justice. The Supreme Court has dwelt at length on
these various issues in R. v. Power, [1994] 1 S.C.R. 601 [Power].
After quoting from her previous decision in R. v. T. (V.),
Justice L’Heureux-Dubé went on to write, at p. 626-627:
The
judicial review of prosecutorial discretion may also involve disclosure by the
Crown of precise details about the process by which it decides to charge, to
prosecute and to take other actions. Such a procedure could generate masses of
documents to review and could eventually reveal the Crown’s confidential
strategies and preoccupations. For example, the confidential nature of the
charging process serves important institutional functions, including
rehabilitative goals and the goal of increasing general deterrence. The latter
is met only by preventing the public from knowing which crimes will be given
emphasis in enforcement. […]
Indeed,
confidentiality permits prosecutors to employ flexible and multifaceted
enforcement policies, while disclosure promotes inflexible and static policies
which are not necessarily desirable.
Moreover,
should judicial review of prosecutorial discretion be allowed, courts would
also be asked to consider the validity of various rationales advanced for each
and every decision, involving the analysis of policies, practices and procedure
of the Attorney General. The court would then have to “second-guess” the
prosecutor’s judgment in a variety of cases to determine whether the reasons
advanced for the exercise of his or her judgment are a subterfuge. […]
Such
a situation would be conducive to a very inefficient administration of justice.
Furthermore, the Crown cannot function as a prosecutor before the court while
also serving under its general supervision. The court, in turn, cannot both
supervise the exercise of prosecutorial discretion and act as an impartial
arbitrator of the case presented to it. Judicial review of prosecutorial
discretion, which would enable courts to evaluate whether or not a prosecutor’s
discretion was correctly exercised, would destroy the very system of justice it
was intended to protect. […]
[44]
This long review of
the cases is no doubt more than sufficient to put to rest any notion that
prosecutorial discretion should be subjected to judicial review like any other
administrative decisions. It is true that the decision by the police to lay a
charge does not come, strictly speaking, within the core elements of
prosecutorial discretion, as defined by the Supreme Court in Krieger v.
Law Society of Alberta, [2002] 3 S.C.R. 372. In that case, the Court
enumerated the key elements of prosecutorial discretion as being the discretion
whether to bring the prosecution of a charge laid by police, the discretion to
enter a stay of proceedings in either a private or public prosecution, the
discretion to accept a guilty plea to a lesser charge, and the discretion to
withdraw from criminal proceedings altogether. The Court was quick, however, to
mention that there are other discretionary decisions, thought not related to
the office of the Attorney General.
[45]
There is no doubt in
my mind that the decision to lay a charge by a police officer must also be free
from judicial interference, for the exact same reasons that Crown attorneys
must be treated with deference when exercising their discretion. After all, the
laying of a charge is but the first step in setting in motion the judicial
process. I find comfort for that view not only in the Supreme Court decisions
already quoted, but also in a most recent judgment of the Ontario Court of Appeal
in Henco Industries Ltd. v. Haudenosaunee Six Nations
Confederacy Council, [2006] O.J. No. 4790 (QL). In that case, Justice
Laskin (for the Court) put on par police and the Crown when it came time to
assess their behaviour:
113.
Our courts have long recognized that the effectiveness of our justice system
depends on the police’s operational discretion in investigating and enforcing
violations of the law and the Crown’s discretion in prosecuting these
violations. Apart from instances of flagrant impropriety or civil actions for
malicious prosecution, courts should not interfere with either police or
prosecutorial discretion.
[46]
Numerous decisions
of this Court have applied the concept of prosecutorial discretion and, in
keeping with the decisions of the Supreme Court of Canada, have refused to
embark on a judicial review of an exercise of that discretion. These decisions
recognize that courts should limit rather than extend their supervisory role
over police discretion. This is particularly the case when the decision sought
to be reviewed is purely discretionary and the statute does not provide any
directions or limitations as to when, how and to what extent that discretion
should be exercised: see, for ex., Zhang v. Canada (Attorney
General), 2006 FC 276, upheld at 2007 FCA 201; Winn v. Canada
(Attorney General) (1994), 84 F.T.R. 115; O’Malley v. Canada,
[1997] F.C.J. No. 1259 (F.C.) (QL); Stucky v. Canada (Attorney
General), 2004 FC 1769; Labrador Métis Nation v. Canada (Attorney
General), 2005 FC 939.
[47]
It should be clear by
now that the discretion enjoyed by the Crown and the police in the enforcement
of the criminal law is nevertheless not absolute. The Supreme Court has made it
clear, in all those decisions already referred to, that judges should intervene
in cases of flagrant impropriety or malicious prosecution. But the threshold to
demonstrate that kind of improper behaviour will be very high. In leaving open
that possibility in Power, Justice L’Heureux-Dubé made no mystery of the
tall order that awaits those who seek the intervention of the courts in the
following terms (at p. 615-616):
[…]
courts have a residual discretion to remedy an abuse of the court’s process but
only in the “clearest of cases”, which, in my view, amounts to conduct which
shocks the conscience of the community and is so detrimental to the proper
administration of justice that it warrants judicial intervention.
To
conclude that the situation “is tainted to such a degree” and that it amounts
to one of the “clearest of cases”, as the abuse of process has been
characterized by the jurisprudence, requires overwhelming evidence that the
proceedings under scrutiny are unfair to the point that they are contrary to
the interests of justice. […] Where there is conspicuous evidence of improper
motives or of bad faith or of an act so wrong that it violates the conscience
of the community, such that it would genuinely be unfair and indecent to
proceed, then, and only then, should courts intervene to prevent an abuse of
process which could bring the administration of justice into disrepute. Cases
of this nature will be extremely rare.
[48]
These comments have
later been taken up to mean that something more than patent unreasonableness
was required. In Kostuch v. Alberta
(Attorney General), [1995]
A.J. No. 866 (QL), the Alberta Court of Appeal ruled that flagrant impropriety
can only be established by proof of misconduct bordering on corruption,
violation of the law, bias against or for a particular individual or offence. See
also R. v. Theissen, 2002 MBQB 149.
[49]
Enough has been said
of police and prosecutorial discretion already, and there is no need to belabor
the point any more. Before coming to a conclusion on the basis of these
principles, however, a word must be said about the recent decision of the
Supreme Court in R. v. Beaudry, 2007 SCC 5. Relying on
that decision, counsel for the applicants forcefully argued at the hearing that
the appropriate test to determine whether police discretion was properly
exercised was twofold, and required both a subjective and objective analysis.
[50]
After having
carefully considered that decision, I am of the view that it does not
significantly alter the law governing prosecutorial and police discretion. Quite
to the contrary, the Court reiterated that discretion was crucial in the
administration of criminal justice. In that case, a police officer was charged
with obstructing justice for deliberately failing to gather the evidence needed
to lay criminal charges against another police officer. Despite having
reasonable grounds to believe this other police officer had been operating a
motor vehicle while intoxicated, Beaudry decided not to request a breathalyzer
and not to prepare an impaired driving report, using his discretion to deal
with the case otherwise than through prosecution.
[51]
First of all, the
facts underlying that decision are quite different from those of which I am
seized in this application for judicial review. Beaudry was charged of
obstructing justice not because he had not laid charges against another police
officer (which, in any event, he could not have done in Quebec without the
intervention of a Crown prosecutor), but because he had failed to collect the
evidence necessary for the Crown prosecutor to exercise his discretion to
prosecute or not, despite the fact that he had reasonable grounds to believe an
offence had been committed. This is quite different from the situation here,
where the RCMP did investigate and meet with the applicants before deciding not
to lay charges.
[52]
Secondly, the Court
once again explicitly recognized a police officer’s discretion not to engage
the judicial process, even if he has reasonable grounds to believe an offence
has been committed, or that a more thorough investigation might produce
evidence that could form the basis of a criminal charge. The only caveat
is that police officers must justify their decisions rationally, that is, both
subjectively and objectively. The discretion will be subjectively justified if
it has been exercised honestly and transparently, and was not based on favouritism,
or on cultural, social or racial stereotypes. As to the objective assessment,
it will be based on a determination of what a police officer acting reasonably
would do in the same situation.
[53]
I fail to see how
this requirement that decisions be capable to be justified rationally differs
from the “flagrant impropriety” test. There is certainly no indication in the
decision, which dealt first and foremost with a prosecution for obstructing
justice, suggesting that the Court intended to lower the bar for judicial
intervention when the exercise of police discretion is called into question. Indeed,
counsel for the applicant himself submitted that the objective justification
requirement will take into account the same considerations that are addressed
by the flagrant impropriety test. To be fair, he also argued that the only way
to establish transparency and honesty, in the context of the subjective
justification, was to provide the reasons for the decision. But there is no
hint that the Court was prepared to go that far, and the compelling reasons not
to go that route have already been canvassed earlier in these reasons.
[54]
In light of the
foregoing, I am therefore of the opinion that courts should be extremely
reluctant to review an exercise of police or prosecutorial discretion, and
should only do so in the clearest of cases, where flagrant impropriety can be
demonstrated. In the present case, I am unable to find such an improper
exercise of discretion in the decision of the RCMP not to lay charges. But
before explaining briefly why the arguments raised by the applicants have
failed to convince me, I need raise another concern pertaining to the
jurisdiction of this Court to entertain an application for judicial review of
such a decision.
[55]
In a decision
released May 29, 2007, my colleague Justice Tremblay-Lamer addressed the issue
of the jurisdiction of this Court to entertain an application for judicial
review in the course of a criminal investigation by the RCMP. That
investigation was conducted to determine whether the applicant contravened s.
131 of the Criminal Code, R.S.C. 1985, c. C-46 and s. 12 of the Parliament
of Canada Act, R.S.C. 1985, c. P-1, during her appearance before the Public
Accounts Committee. After having stressed that the Federal Court has no
inherent jurisdiction, she focused on the first leg of the test set out in ITO
- Int’l Terminal Operators v. Miida Electronics, [1986] 1 S.C.R. 752
at p. 766 to determine whether it has jurisdiction in a particular instance. As
will be remembered, the first condition to be met is that there must be a
statutory grant of jurisdiction by the federal Parliament. That means, in that
specific case, that the applicant had to establish an express or implied grant
of jurisdiction which authorizes the Federal Court to quash and declare invalid
a criminal investigation.
[56]
The only possible
source of jurisdiction was section 18.1 of the Act, which confers
jurisdiction to review decisions made by “a federal board, commission or other
tribunal”, as these entities are defined in section 2 of the same Act. After
reviewing the legislation and the case law on the subject, Justice
Tremblay-Lamer came to the conclusion that the decision to initiate a criminal
investigation cannot be properly characterized as a decision by a “federal
board, commission or other tribunal”. In her view, police officers are
independent from the Crown when conducting criminal investigations, and their
powers have their foundation in the common law. Being independent of the
control of the executive, they cannot be assimilated to a “federal board,
commission or other tribunal”. I fully agree with this most compelling analysis
of my colleague.
[57]
In the result, this
application for judicial review could be dismissed on the sole ground that this
Court does not have the jurisdiction to entertain it. But as already mentioned,
even if I were to proceed on the assumption that a decision not to lay charges
by the RCMP can properly be the subject to an application pursuant to section
18.1 if the Act, I can find nothing in the conduct of the RCMP officers
involved in the investigation that meets the flagrant impropriety test
mentioned earlier.
2) Have the applicants provided any
evidence of flagrant impropriety?
[58]
The applicants have
based their allegations of impropriety on a number of assertions. They argued
that the RCMP did not take into account their Aboriginal rights, Treaty rights
and the fiduciary duty owed to the First Nations. They also claimed that the
legal counsel who attended a meeting involving the First Nations and the
potential accused placed himself in a conflict of interest position when he was
later consulted by a RCMP Inspector in relation to the decision to decline to
lay charges. After having carefully reviewed the evidence submitted by the
applicants, I find that it does not bear out their allegations and certainly
does not indicate any behaviour or conduct even coming close to the level of
flagrant impropriety.
[59]
I have been unable to
find any specific mention of assistance being provided by the RCMP in Treaty 4.
There is simply no authority to support the view that there is an established
or even a potential treaty right of First Nations to assistance from the RCMP. The
applicants have pointed to the text of Treaty 4 where First Nations chiefs
promised to maintain peace and good order within the First Nation, between
their First Nation and other First Nations, and between their First Nation and
other subjects of the Queen. They argue that this amounts to an obligation on
both the First Nations and the Crown to maintain peace and good order and the
instrument to do so is the RCMP.
[60]
Even recognizing that
words in a treaty must not be interpreted in their strict technical sense nor
subjected to rigid modern rules of construction (R. v. Badger,
[1996] 1 S.C.R. 771 at para 54), I fail to see how this mutual policing
requirement could translate into an undertaking from the RCMP to exercise its
police discretion in such a way so as to favour the applicants or provide them
with some police priority. I agree with the respondents that such a broad and
general statement cannot be interpreted as impacting the most intricate details
of day to day policing such as the decision by police to decline the laying of
charges. Not only would that be totally inappropriate, but there is absolutely
no evidence that this was the understanding between the parties at the time the
Treaty 4 was entered into. Apart from an argumentative paragraph in both
affidavits submitted by the applicants (the text of which is identical in every
respect) asserting a treaty promise to assistance from the “red coats”, there
is absolutely no support for that alleged right.
[61]
As for an alleged
aboriginal right to assistance owed by the RCMP to the applicants, it is
unclear from the applicants’ material what the exact basis for this right is
and where it can be found. The elements of proof of aboriginal rights were set
out by the Supreme Court in Van der Peet and the tests were recently
summarized by the Supreme Court in Mitchell, where the Court stated:
12.
[…] Stripped to essentials, an aboriginal claimant must prove a modern
practice, tradition or custom that has a reasonable degree of continuity with
the practices, traditions or customs that existed prior to contact. The
practice, custom or tradition must have been “integral to the distinctive
culture” of the aboriginal peoples, in the sense that it distinguished or
characterized their traditional culture and lay at the core of the peoples’
identity. It must be a “defining feature” of the aboriginal society, such that
the culture would be “fundamentally altered” without it. It must be a feature
of “central significance” to the peoples’ culture, one that “truly made the
society what it was” (Van der Peet, supra, at paras. 54-59
(emphasis in original)). This excludes practices, traditions and customs that
are only marginal or incidental to the aboriginal society’s cultural identity,
and emphasizes practices, traditions and customs that are vital to the life,
culture and identity of the aboriginal society in question.
As already mentioned in relation to the
alleged treaty right, there is simply no evidence providing a foundation based
on these factors to support such a right to assistance from the RCMP.
[62]
Finally, the
applicants allege further that the RCMP, as an organ of the Crown, owe a
fiduciary duty toward First Nations people which would require them to act in
the best interests of the First Nations. They go as far as saying (at para 59
of their factum) that, “[e]ven if the RCMP found evidence of unlawful conduct
but decided within the scope of their discretion that laying charges against
the Crown would be somehow ‘inappropriate’, the fiduciary duty owed to the
First Nations requires the RCMP to give more respect to the First Nations’ position”.
[63]
There are several
problems with that proposition. First of all, the established fiduciary duty
owed by the Crown to First Nations people is not extended to the RCMP as the
RCMP is not, as previously discussed, an organ of the Crown. An RCMP officer
investigating a crime and acting under his or her police discretion in the
course of a criminal investigation occupies a public office and is not acting
as a government agent. The status of the RCMP officer in the course of a
criminal investigation is independent of the control of the executive. An RCMP
officer is not subject to political discretion and is not to be considered a
servant or agent of the Crown while engaged in a criminal investigation.
[64]
Moreover, fiduciary
duties are generally understood to arise in the context of private law duties
and obligations. As Dickson J. said in Guerin v. The Queen,
[1984] 2 S.C.R. 335 at p. 385, “[i]t should be noted that fiduciary duties
generally arise only with regard to obligations originating in a private law
context. Public law duties, the performance of which requires the exercise of
discretion, do not typically give rise to a fiduciary relationship”. The
criminal process is not the preserve of any one individual, aboriginal or
otherwise. The fundamental consideration in any decision regarding prosecution
of criminal offences is the public interest. While it is not entirely clear to
me what the applicants mean when they claim that First Nations’ position should
be given “more respect”, it certainly cannot be equated to any kind of
preferential treatment when comes the time to decide whether charges should be
laid in a specific instance. As Justice Binnie wrote in Wewaykum Indian Band
v. Canada, [2002] 4 S.C.R. 245 at para 96:
When
exercising ordinary government powers in matters involving disputes between
Indians and non-Indians, the Crown was (and is) obliged to have regard to the
interest of all affected parties, not just the Indian interest. The Crown can
be no ordinary fiduciary; it wears many hats and represents many interests,
some of which cannot help but be conflicting […]
[65]
In other words, short
of any evidence of flagrant impropriety in coming to its conclusion not to lay
charge, the RCMP can not be faulted for its conduct. In fact, the RCMP investigated
the allegations made by the applicants, and provided them with ample
opportunity to present their concerns, allegations and supporting material. Members
of the RCMP met with members of the applicants’
Bands on numerous occasions. Well aware of the sensitivity of the issues, a
legal opinion was sought from the Department of Justice. Indeed, the reasons
for not laying charges are fleshed out in Sgt. Ré’s letter of April 18, 2005;
these reasons, far from being flimsy, appear to be cogent and principled. There
is no proof of bias against the applicants or even of systemic discrimination
in the treatment of First Nations allegations of unlawful conduct. Accordingly,
I can find no evidence of impropriety in the decision reached by the RCMP not
to proceed with charges in relation to the allegations made by the applicants.
[66]
Finally, the
applicants alleged that the RCMP acted improperly when the officer making the
decision whether to lay charges sought legal advice from the office of the
Attorney General of Canada because that counsel had already provided legal
representation to the PFRA. I can see no merit in this submission, as there is
no shred of evidence that the legal counsel in question placed himself in a
conflict of interest position.
[67]
The only evidence in
support of the applicants’ allegation of impropriety is an attendance sheet for
the January 19, 2006 meeting that indicates Mr. Lafleur, the Justice counsel,
attended the meeting, and the correspondence from the RCMP Inspector (reproduced
at para 39 of these reasons) indicating to the applicants that consultation
took place with Mr. Lafleur and that he drew the same conclusions that there is
no validity in pursuing charges for trespassing.
[68]
On the other hand,
Mr. Woodvine testifies in his affidavit that Mr. Lafleur attended the
negotiation meeting as legal counsel for the Regional Office of the DIAND, and
that his role was to provide assistance to all parties in the implementation of
any settlement reached. He also attested that at no time did Mr. Lafleur provide
legal advice to the PFRA on a solicitor/client basis. Throughout the
negotiations, the PFRA apparently obtained its legal advice from counsel of the
Department of Justice other than Mr. Lafleur.
[69]
Even if I were to
disregard this evidence and accepted that Mr. Lafleur did not merely act as a
neutral counsel for all parties but was providing advice to the entire federal
negotiating team, as the applicants would have me believe, I still cannot find
any basis for concluding that he was in a conflict of interest situation and
that the RCMP acted improperly in consulting him. It is well established that
the Department of Justice and the legal counsel through whom it acts have a
dual mandate. This mandate derives from the dual role of the Minister of
Justice, who also happens to be the Attorney General of Canada.
[70]
In support of the
Minister of Justice, the Department of Justice is responsible for providing
policy and program advice and direction through the development of the legal
content of bills, regulations and guidelines. In support of the Attorney
General, the Department of Justice is responsible for prosecuting federal
offences across Canada, litigating civil cases and for
providing legal advice to federal law enforcement agencies and other government
departments. The recent creation of the Office of the Director of Public
Prosecution as part of the Federal Accountability Act, S.C. 2006, c. 9,
s. 121, removing the Federal Prosecution Service from the Department of
Justice, will if anything strengthen the independence of Crown prosecutors but there
is no evidence to suggest it was designed to prevent a Department of Justice
counsel to provide legal advice to a prosecutor. In any event, I can find
nothing in Mr. Lafleur’s previous involvement in the negotiations between
QVIDA, PFRA, SWA and the DIAND that could have barred him from providing advice
to the RCMP, and there is certainly no evidence that his conduct smacks of bias,
let alone of flagrant impropriety.
[71]
For all of the
foregoing reasons, I would dismiss this application for judicial review.
ORDER
THIS COURT ORDERS that :
- The application for judicial
review is dismissed.
"Yves de
Montigny"
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