Date: 20000511
Docket: A-455-96
CORAM: STRAYER J.A.
ISAAC J.A.
SEXTON J.A.
BETWEEN:
MARVIN LAFORME
Appellant
- and -
BAND COUNCIL OF THE MISSISSAUGAS
OF THE NEW CREDIT FIRST UNION
Respondent
Heard at Toronto, Ontario, Thursday, May 11, 2000
Judgment delivered from the Bench at
Toronto, Ontario on Thursday, May 11, 2000
REASONS FOR JUDGMENT OF THE COURT BY: STRAYER J.A.
Date: 20000511
Docket: A-455-96
CORAM: STRAYER J.A.
ISAAC J.A.
SEXTON J.A.
BETWEEN:
MARVIN LAFORME
Appellant
- and -
BAND COUNCIL OF THE MISSISSAUGAS
OF THE NEW CREDIT FIRST UNION
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario
on Thursday, May 11, 2000)
STRAYER J.A.
[1] This is an appeal from a decision of the Trial Division dismissing an application for judicial review. The appellant sought an order quashing by-law no. 1995.01 of the respondent Band Council adopted on November 6, 1995, and a declaration that such a by-law is ultra vires the Band Council.
[2] The by-law in question was purportedly adopted under sub-section 85.1(1) of the Indian Act (the "Act")which provides as follows1:
| 85.1 (1) Subject to subsection (2), the council of a band may make by-laws
(a) prohibiting the sale, barter, supply or manufacture of intoxicants on the reserve of the band;
(b) prohibiting any person from being intoxicated on the reserve;
(c) prohibiting any person from having intoxicants in his possession on the reserve; and
(d) providing for exceptions to any of the prohibitions established pursuant to paragraph (b) or (c).
|
85.1 (1) Sous réserve du paragraphe (2), le conseil d'une bande peut prendre des règlements administratifs en vue :
a) d'interdire la vente, le troc, la fourniture ou la fabrication de boissons
alcoolisées sur la réserve de la bande;
b) d'interdire à toute personne d'être en état d'ivresse sur la réserve;
c) d'interdire à toute personne d'avoir en sa possession des boissons alcoolisées sur la réserve;
d) de prévoir des exceptions aux interdictions visées aux alinéas b) ou c).
|
| [3] The Band Council had previously adopted by-law no. 1992.01 prohibiting the sale, barter, or supply of intoxicants on the reserve. That by-law defined "supply" as "serve, furnish or deliver otherwise than by sale2". |
| [4] The 1992 by-law also contained a specific exception to its prohibition in paragraph 3(c) against the supply of intoxicants as follows3: |
| 4. No person contravenes Section 3(c) of this By-Law: |
| (a) where the intoxicant is used or intended to be used solely by a person in his/her home or private dwelling to which he/she has been invited. |
[5] The appellant, who operates a restaurant on the reserve, was prosecuted under by-law no. 1992.01 for the sale of intoxicants. A provincial court judge found section 4, as quoted above, to be invalid because of paragraph 85.1(1)(d) of the Act which did not, in his view, permit an exception to any of the prohibitions against sale, barter, supply or manufacture of intoxicants on the reserve. Further, he stayed the prosecution for abuse of process on grounds which are not immediately apparent.
[6] The Band Council then adopted by-law no. 1995.01, the by-law in question here. It amended the earlier by-law no. 1992.01 by repealing the exception in section 4. as quoted above, and by amending the definition of "supply", also as quoted above, by the following addition4:
"Supply means to serve, furnish or deliver otherwise than by sale or barter, except where the intoxicant is used or intended to be used solely by a person in his/her home or private dwelling to which he/she has been invited; [amendment italicized]
[7] The appellant subsequently brought this judicial review proceeding to have the amendment quashed and declared ultra vires on the ground that the amendment created an exception to the prohibition against "supply" - an exception precluded by paragraph 85.1(1)(d) of the Act which does not permit of exceptions to prohibitions adopted under paragraph 85.1(1)(a). In other words, he argued that the amendment adopted in by-law 1995.01 was simply another means of adopting an exception to the prohibition of "supply".
[8] The learned application judge did not accept this argument. He held that by-law 1995.01 created no exception to the prohibition of supply because "supply" as then defined in the by-law did not cover domestic use of intoxicants. He found this to be the case for two reasons: applying the maxim of noscitur a sociis , he said that the normal meaning of "supply", when associated with the other (commercial) transactions listed in paragraph 85.1(1)(a), was confined to commercial means of providing intoxicants; and that the meaning of "supply" as listed in the by-law had in any event been circumscribed by the new definition so that the by-law"s prohibition of supply never extended to the serving of drinks in one"s home so that no exception was necessary or intended.
[9] The appellant appeals from that decision.
[10] With respect, we are unable to agree with the learned application judge. First, in applying the interpretative principle noscitur a sociis he assumed that all the other activities mentioned in paragraph 85.1(1)(a) - that is sale, barter, or manufacture - are commercial in nature and thus "supply" must be taken to be confined to commercial activities. But, starting with the ordinary meaning of "supply" as used in the English version and "fourniture" in the French version, these words embrace both commercial and non-commercial activities. Further, the word "manufacture" which is one of the words used in association with "supply" has both a commercial and non-commercial sense. We are, therefore, not persuaded that "supply" as used in the Act must be taken to exclude the domestic serving of drinks, a limitation which, in the view of the learned application judge, the impugned amendment in by-law 1995.01 would simple re-state.
[11] Secondly, the learned application judge held the amendment to the definition of "supply" in by-law 1995.01 to be simply a limitation on the scope of the prohibition. Thus in his view while paragraph 85.1(1)(d) of the Act would preclude an exception to a prohibition of supply, it does not preclude a restrictive definition of the term "supply" which limits in advance the application of that prohibition. With respect, we believe this to be a distinction without a difference which would allow the Band to circumvent the rule against exceptions to prohibitions as mandated by paragraph 85.1(1)(d).
[12] It appears to us that the Band faces this problem because it chose to prohibit "supply" in its original by-law 1992.01. On the other hand, it did not prohibit the "manufacture" of intoxicants on the reserve, although such prohibition is equally authorized in paragraph 85.1(1)(a) of the Act ; yet the by-law has not been attacked on that basis. Having prohibited "supply" however, the Band has, by whatever language it employs, tried unsuccessfully to create major exceptions to that prohibition.
[13] As it is only by-law no. 1995.01 which is before us in this proceeding we can only deal with its validity and not with that of the by-law it amends. We conclude that in by-law no. 1995.01 the amendment to the definition of "supply" is invalid because it is an exception of the kind precluded by paragraph 85.1(1)(b) of the Act . We find, however, that the repeal by by-law no. 1995.01 of section 4 of by-law no. 1992.01 is valid.
[14] In our view, the amendment to the definition of "supply" herein found to be invalid is severable from the remainder of the by-law which it purported to amend. Should this declaration create any legislative difficulties for the Band Council, however, we will delay the effective date of the judgment herein until July 1, 2000 in case the Band Council wishes to make further modifications in its by-laws consistent with these reasons.
[15] We will therefore allow the appeal with costs, declare the amendment to the definition of "supply" in by-law no. 1995.01 to be invalid and quash it, and postpone the coming into force of our judgment until July 1, 2000.
"B. L. Strayer"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: MARVIN LAFORME |
Appellant
- and -
Respondent
DATE OF HEARING: THURSDAY, MAY 11, 2000
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
| OF THE COURT BY: STRAYER J.A. |
Delivered at Toronto, Ontario on Thursday, May 11, 2000
APPEARANCES: Mr. Alexander Fiszauf
| SOLICITORS OF RECORD: Trepanier, Hagey, Kneale & Wiacek |
| P.O. Box 40, Station Main |
FEDERAL COURT OF APPEAL
Date: 20000511
Docket: A-455-96
BETWEEN:
Appellant
Respondent
__________________
1 R.S., 1985, c. 32 (1st Supp.), s. 16.
2 Appeal Book, page 22.
3 Idem, page 23.
4 Idem, page 20.
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