Date:
20090424
Docket: A-464-07
Citation: 2009 FCA 124
CORAM: EVANS
J.A.
PELLETIER
J.A.
RYER
J.A.
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)
Appellants
and
ATTORNEY GENERAL OF CANADA
and the ROYAL CANADIAN MOUNTED
POLICE
Respondents
REASONS FOR JUDGMENT
PELLETIER J.A.
INTRODUCTION
[1]
This
is an appeal from the decision of Mr. Justice de Montigny (the application
judge), reported as Ochapowace First Nation (Indian Band No. 71) v. Canada
(Attorney General), 2007 FC 920, 316 F.T.R. 19 (Reasons), dismissing the
appellants' application for judicial review of the decision of the Royal
Canadian Mounted Police (RCMP) not to lay charges against the Prairie Farm Rehabilitation
Administration (PFRA) and the Saskatchewan Watershed Authority (SWA), as a
result of the flooding of the appellants' lands. The issue in this case is the
reviewability of the exercise of police discretion, and the extent to which
that question is affected by the appellants' invocation of the honour of the
Crown in support of their claims.
FACTS
[2]
The
factual nexus underlying this appeal is fairly complex. However, given the
nature of the appellants’ claims, it is important to understand the role played
by the police in the events leading to the appellants’ notice of application.
For that reason, I propose to set out the facts in some detail.
[3]
The
appellants are members of two First Nations occupying reserves in the Qu'Appelle
Valley in southern Saskatchewan. The PFRA was established in response to the
drought that devastated the Prairie Provinces in the 1930s. Its mandate is to
assist in the rehabilitation of prairie soil and water resources through a
variety of means, including the construction of dams and water control
structures. The SWA is an agency of the Province of Saskatchewan whose
statutory mandate is, among other things, "to manage, administer, develop,
control and protect the water, watersheds and related land resources of Saskatchewan": The Saskatchewan Watershed Authority Act, 2005, S.S. 2005, c.
S-35.03, s. 5(a).
[4]
In
the 1940s, the PFRA constructed works in the Qu'Appelle Valley, as a result of
which reserve lands were flooded and the flow of the watercourses impeded. This
gave rise to numerous issues, as summarized in the reasons of the application
judge:
… 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.
[Reasons, at para. 5.]
[5]
The
following summary of relevant events is taken from the application judge's
reasons:
27 In
1994, QVIDA [Qu'Appelle Valley Indian Development Authority] asked the Indian
Claims Commission (the ICC) [to] 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 (Indian and Northern Affairs Canada), 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.
[6]
Concurrently,
the appellants were consulting with the RCMP with respect to the unauthorized
presence of PFRA employees on reserve lands while accessing certain control
structures. In October 2002, Superintendent McFadyen advised the appellants
that officials of the PFRA had assured him that there would be no attempt to
access structures located on reserve lands without Band authorization or a
court order (Exhibit BD2 to the Affidavit of Ross Allary, A.B., at p. 1731).
[7]
Discussions
between the RCMP and the affected Indian Bands continued over the following
months. In response to an inquiry about the enforcement of section 30 of the Indian
Act, R.S.C. 1985, c. I-5, which creates the offence of trespassing on a
reserve, Supt. McFadyen wrote to counsel for the appellants on May 6, 2004 stating
that the issue had been discussed with officials within the Federal Department
of Justice, whose advice was to the following effect:
The authority of the Band (Chief and
Council) must notify the person(s) that they are not welcome. They must then be
provided with a reasonable time to vacate. Should the person(s) return, charges
will then be appropriate and subject removed.
[Exhibit
CS1 to the Affidavit of Ross Allary, A.B., at p. 2450.]
[8]
In
July 2005, the appellant Bands met with the RCMP to discuss enforcement of
by-laws that the Bands had passed with respect to trespass. Each Band's by-law
was identical to that of the other Band save as to the name of the reserve in
question. The by-laws are entitled "Ochapowace First Nation Removal of Trespassers
By-law" and "Piapot First Nation Removal of Trespassers By-Law".
Each by-law begins with an interpretation section; among the terms defined are
the following:
"Trespass"
means the entry onto, or the presence on, or actions by a person(s) causing
interference without lawful justification, the use of the […] First Nation
reserve land.
"Officer" means any police
officer, police constable or other person charted [sic] with the duty to
preserve and maintain the public peace, and any person appointed by the Council
for the purpose of maintaining law and order on the reserve.
[Exhibit CU2 to the Affidavit of Ross
Allary, at p. 2458 and 2465.]
[9]
Section
3 of each by-law then identifies certain acts as "prohibited
purposes", among them the following:
(e)
watercourse flooding by flooding or
diversion on [sic] natural flows of water onto the reserve from sources
external to or unto the reserve;
(f) the
passing down the Qu'Appelle River other than normal natural run-off;
…
(l) construction and regulation of water
in the Qu'Appelle River resulting in detrimental effects.
[Exhibit CU2 to the Affidavit of Ross
Allary, at p. 2458-2459, and at p. 2465-2466.]
[10]
Section
4 of each by-law is the operative section and provides as follows:
4(1) An
officer may order any person who
trespasses on the reserve or who frequents the reserve for a prohibited purpose
to leave the reserve immediately and stop the action causing the trespass.
(2)
Where a person who has been ordered to leave the reserve fails or refuses to do
so, an officer may take such reasonable measures as may be necessary to remove
the person from the reserve and stop the action causing trespass.
(3) A
person who fails or refuses to comply with an order made under subsection 4(1)
to leave the reserve, or shall resist or interfere with an officer acting under
subsection (2) commits an offence.
[Exhibit
CU2 to the Affidavit of Ross Allary, A.B., at p. 2458-2459 and at p. 2466.]
[11]
Section
5 is the penalty section and provides that a violation of the by-law is an
offence punishable upon summary conviction by a fine not exceeding $1,000 for
each day that the offence continues or by imprisonment for a term not exceeding
30 days, or both (Exhibit CU2 to the Affidavit of Ross
Allary, A.B., at p. 2459 and 2466).
[12]
The
by-laws were reviewed by an official of Indian and Northern Affairs Canada
(INAC) who commented that the portions of the by-laws which purported to deal
with off-reserve conduct had no effect beyond the boundaries of the reserves (Exhibit
CU2 to the Affidavit of Ross Allary, A.B., at p. 2473 and 2476). This position was
communicated to the appellants by letters dated May 15, 2005 and May 17, 2005
(Exhibit
CU2 to the Affidavit of Ross Allary, A.B., at p. 2472 and 2476).
[13]
In
late June 2005, the appellants forwarded a "Notice of Violation" to
the PFRA and the SWA. The following is the text of the letter forwarded by the
Ochapowace Band to the SWA on June 29, 2005:
Please
find attached a copy of the Ochapowace
First Nation above mentioned By-law which came into force May 16, 2005, as
advised by Christine Aubin, A/Director Band Governance of Indian and Northern
Affairs Canada on May 15, 2005 letter attached.
This
letter serves as a "Notice of Violation" to which your corporation,
namely the Saskatchewan Watershed Authority, by increase of waters upon the
Ochapowace First Nation, constitutes a trespass pursuant to, noted By-law. If
diversions of water levels by Qu'Appelle Dam and associated water management
structures, which increase water above natural levels, are not unilaterally
terminated, enforcement action will follow and involve further enforcement to
be implemented as per the Chief and Council's direction for the protection of
our Ochapowace First Nation membership and Ochapowace First Nation lands.
Yours truly,
Ochapowace
First Nation Chief and Council
[Exhibit CU2 to the Affidavit of Ross
Allary, A.B., at p. 2482.]
[14]
Letters
containing exactly the same terms were forwarded to the PFRA on the same date (Exhibit
CU2 to the Affidavit of Ross Allary, A.B., at p. 2478). The Piapot First Nation forwarded
a letter on the same terms (except as to the effective date of the by-law and
the references to the First Nation) to the PFRA on May 3, 2005 (Exhibit
CU2 to the Affidavit of Ross Allary, A.B., at
p. 2480).
[15]
On
April 13, 2006, Mr. Peigan, a representative of QVIDA attended at the Regina
Commercial Crime section of the RCMP, and provided a statement to an
investigator regarding allegations of trespass on reserve land by
representatives of the PFRA and the SWA (Exhibit CV3 to the
Affidavit of Ross Allary, A.B., at p. 2554).
On April 18, 2006, Sergeant Richard Ré,
the non-commissioned officer in charge of the Regina Commercial Crime Section,
wrote to the QVIDA to advise it that the RCMP would not lay charges in respect
of the alleged trespass by PFRA or SWA or their representatives. The material
portions of the letter are reproduced below:
… 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 in 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 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 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 RCMP cannot proceed with charges in the matter.
[Exhibit CV3 to the Affidavit of Ross
Allary, A.B., at p. 2554-2555.]
[16]
Following
receipt of this letter, members of the affected First Nations met with
representatives of the RCMP to discuss their response to the First Nations'
complaints. At that meeting, counsel for the First Nations asked the RCMP to
release the Department of Justice opinion on which they were relying. The RCMP
undertook to inquire of the Department of Justice as to whether it would
authorize the release of its opinion. Subsequently, on May 8, 2006, counsel for
the First Nations wrote to the RCMP to renew his clients' demand for production
of the Department of Justice's opinion. That letter summarized the First
Nations' concerns as follows:
In our
opinion, the three paragraphs of legal
response provided in your correspondence of April 19, 2006 are not an
honourable response and follow a period of prolonged inactivity by the RCMP on
these investigations which disclose the appearance of possible interference by
the Crown to prevent lack of accountability pursuant to the Rule of Law,
Inherent Rights, and Treaty Rights of proper and effective assistance by the
RCMP to the affected First Nations.
[Exhibit CX1 to the Affidavit of Ross
Allary, A.B., at p. 2564.]
[17]
On
May 17, 2006, the RCMP responded to further inquiries on this issue in a letter
to counsel for the First Nations, the relevant portions of which provide as
follows:
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 to Statutes of Canada,
Province of Saskatchewan or the By-laws 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 matter relating to statute
offences. This does not preclude you or your organization from pursuing this
matter on a civil basis.
[Exhibit CY1 to the Affidavit of Ross
Allary, A.B., at p. 2566.]
[18]
The
fact of having consulted Mr. Lafleur is one of the grounds upon which judicial
review of the RCMP's decision not to proceed with charges was sought. Mr.
Lafleur attended a meeting of the various parties involved in this dispute on
January 19, 2006. The appellants believe that
Mr. Lafleur attended the meeting as counsel to the
PFRA: see para. 113 of the Affidavit of Ross Allary, A.B., at p. 83. The PFRA
denies that Mr. Lafleur provided it with legal advice at any time, and asserts that
he was present at the meeting in his capacity as counsel for INAC: see paras.
15-16 of the Affidavit of Ron Woodvine, A.B., at p. 2571-2572.
PROCEDURAL HISTORY
[19]
On
June 15, 2006, the appellants launched an application for judicial review in
the Federal Court of the "final decision made by the Royal Canadian
Mounted Police not to lay trespass or charges with respect to certain
complaints of the Applicants about the actions of the Prairie Farm
Rehabilitation Authority (PFRA) and the Saskatchewan Watershed Authority (SWA)
leading to the flooding of land of the applicants, on the basis of the
investigation of Sergeant Richard Ré…" (A.B., at p. 40).
[20]
The
application, as amended, sets out six grounds of review which may be broadly
summarized as follows. The failure of the RCMP to lay charges is a breach of
Treaty 4, which promises the assistance of the "redcoats" to keep
order in the event of a breach of the Treaty or the criminal law. The failure
of the RCMP to take into account the inherent and treaty rights of the First
Nations is a breach of the Crown's fiduciary obligations and is a failure to
maintain the honour of the Crown. The RCMP failed to properly consider the
Crown's admission of certain acts when refusing to exercise its prosecutorial
discretion. The RCMP failed to properly exercise its discretion and
demonstrated actual bias against the appellants when it sought legal advice
from Mr. Lafleur who, it is alleged, also provided legal advice to one of the
potential defendants, the PFRA. Finally, the RCMP disregarded the treaty
context and failed to uphold the honour of the Crown when it acted as it did in
this matter.
[21]
The
application was dismissed. That decision was appealed on October 15, 2007. The
notice of appeal lists twelve grounds of appeal, some of which deal with
evidentiary and procedural matters, while others deal with the grounds alleged in
the notice of application.
ANALYSIS
[22]
In
my view, the application judge correctly stated the law and applied it properly
to the many questions the parties put before him. I would adopt his reasons
and would add to them only in relation to the issue of police and prosecutorial
discretion and the appeal to the honour of the Crown.
[23]
I
have set out the facts in considerable detail in order to make it clear that
the argument with respect to the honour of the Crown is being made in a very
particular context. It will be recalled that the structures that give rise to
the flooding in question were constructed in the 1940s. It will also be
recalled that Canada has accepted that the flooding, which resulted from the
construction of those structures, was not authorized, and that the affected
First Nations are entitled to compensation. Negotiations with respect to
compensation have begun, but, for whatever reason, these appellants have not
been in a position to conclude an agreement with Canada. It is in this context
that the appellants argue that the honour of the Crown is engaged in the RCMP's
exercise of its discretion to lay charges against an agency of the Crown in
relation to the flooding, which is the subject of these negotiations.
[24]
It
is apparent from the facts that there has been an ongoing collaboration between
the appellants and the RCMP with respect to the issue of trespass on the
reserve. There were a number of meetings on the subject as well as attempts to
respond to the appellants' concerns. The disagreement underlying the present
appeal arises from the RCMP's decision not to lay charges under the by-laws
passed by the Piapot and Ochapowace First Nations.
[25]
While
the application judge recognized a distinction between police and prosecutorial
discretion, his analysis essentially treated them as aspects of a single
discretionary power. I believe it is preferable to recognize that both the
police and the Attorney General (usually acting through his agents) have an
independent discretion to exercise. This distinction was affirmed in R. v.
Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, as follows:
62.
The appellant contends that a bright line must be drawn at the stage where
charges are laid, in order to keep the functions of the police separate from
those of the prosecutors. This separation, he argues, is the only way to
maintain the Crown's crucial objectivity when reviewing the appropriateness of
charges…
…
67.
…The distinct line appears to be that police, not the Crown, have the ultimate
responsibility for deciding which charges should be laid. This can still be
true after the Crown has made its own pre-charge assessment, and when the two
arms of the criminal justice system disagree on whether to lay charges.
[26]
The
rationale for that discretion was set out recently in the Supreme Court’s
decision in R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190 (Beaudry),
where the following appears:
37 Nevertheless, it should not be
concluded automatically, or without distinction, that this duty is applicable
in every situation. Applying the letter of the law to the practical, real-life
situations faced by police officers in performing their everyday duties
requires that certain adjustments be made. Although these adjustments may
sometimes appear to deviate from the letter of the law, they are crucial and
are part of the very essence of the proper administration of the criminal
justice system, or to use the words of s. 139(2), are perfectly consistent with
the "course of justice". The ability - indeed the duty - to use one's
judgment to adapt the process of law enforcement to individual circumstances
and to the real-life demands of justice is in fact the basis of police discretion. What La Forest J.
said in R. v. Beare, [1998] 2 S.C.R. 387, at p. 410, is directly on
point here:
Discretion is an
essential feature of the criminal justice system. A system that attempted to
eliminate discretion would be unworkably complex and rigid.
Thus, a police
officer who has reasonable grounds to believe that an offence has been
committed, or that a more thorough investigation might produce evidence that
could form the basis of a criminal charge, may exercise his or her discretion
to decide not to engage the judicial process. But this discretion is not
absolute. Far from having carte blanche, police officers must justify
their decisions rationally.
[27]
In
Beaudry, the Supreme Court went on to say that the exercise of police
discretion, when challenged, must be justified both subjectively and
objectively. Subjectively, the discretion must have been exercised honestly,
transparently and on the basis of valid and reasonable grounds. Objectively,
the exercise of the discretion must be assessed in light of the material
circumstances: see paras. 38-39.
[28]
The
application judge considered Beaudry, but concluded that it did not
materially affect the test to be applied. In his view, there was little
difference between reviewing the exercise of discretion on the basis of
rational justification or on the basis of flagrant impropriety, which is the
language used to describe the basis on which the exercise of prosecutorial
discretion is to be reviewed.
[29]
I
agree with the application judge that courts should not embark upon a review of
either police or prosecutorial discretion except in the clearest cases of abuse.
But I am not persuaded that the same test applies in both cases, largely
because of the different roles that the police and the prosecution play in the
administration of justice. This is not a question that I need to answer
because the exercise of police discretion passes muster in this case regardless
of which test is applied.
[30]
The
facts, as set out earlier in these reasons, amply justify the conclusion that
both the subjective and objective elements of the test were satisfied in this
case. The RCMP’s decision was made honestly and transparently and for a legitimate
reason, namely the evidence did not support the charges. In light of all the
material circumstances, including the state of the negotiations for
compensation and the legal advice received, the RCMP’s decision was objectively
justifiable.
[31]
I
agree with the application judge that the appellants have not established
“flagrant impropriety” in the RCMP’s exercise of discretion not to lay charges.
[32]
That
said, does the appellants’ appeal to the honour of the Crown change anything?
The theory of the honour of the Crown as a constraint on the Crown's exercise
of its rights and powers in circumstances where First Nation interests are at
stake was given full expression in Haida Nation v. British Columbia
(Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511 (Haida Nation).
In that case, the issue was the provincial Crown's right to issue logging
permits with respect to lands over which the Haida Nation claimed Aboriginal rights.
The question was the extent to which the Crown could take action that might
adversely affect First Nation interests prior to a determination as to the
nature and extent of those interests.
[33]
The
Supreme Court held that "the government's duty to consult with Aboriginal
peoples and accommodate their interests is grounded in the honour of the
Crown": see Haida Nation, at para. 16. The heart of the doctrine,
in the context of treaty making, is found at paragraph 25 of the Court's
decision, where it says:
Put simply, Canada's Aboriginal
peoples were here when Europeans came, and were never conquered. Many bands
reconciled their claims with the sovereignty of the Crown through negotiated
treaties. Others, notably in British Columbia, have yet to do so. The potential
rights embedded in these claims are protected by s. 35 of the Constitution
Act, 1982. The honour of the Crown requires that these rights be
determined, recognized and respected. This, in turn, requires the Crown, acting
honourably, to participate in processes of negotiation. While this process
continues, the honour of the Crown may require it to consult and, where
indicated, accommodate Aboriginal interests.
[34]
The
obligations imposed by the honour of the Crown are not exhausted by the
conclusion of a treaty. As the Court pointed out at paragraph 32 of its
reasons:
The jurisprudence of this Court
supports the view that the duty to consult and accommodate is part of a process
of fair dealing and reconciliation that begins with the assertion of
sovereignty and continues beyond formal claims resolution.
[35]
Finally,
the Supreme Court recognized the mutuality of the obligations that the Crown
and the First Nations owe each other:
42. At all stages, good faith
on both sides is required. The common thread on the Crown's part must be
"the intention of substantially addressing [Aboriginal] concerns" as
they are raised [citation omitted], through a meaningful process of
consultation. Sharp dealing is not permitted. However, there is no duty to
agree; rather, the commitment is to a meaningful process of consultation. As
for Aboriginal claimants, they must not frustrate the Crown's reasonable good
faith attempts, nor should they take unreasonable positions to thwart
government from making decisions or acting in cases where, despite meaningful consultation,
agreement is not reached [citations omitted]. Mere hard bargaining, however,
will not offend an Aboriginal people's right to be consulted.
[36]
In
the present case, negotiation and treaty making have concluded. The issues
between the appellants and the Crown relate to the Crown's failure to respect
those treaties, and the compensation owing to the affected First Nations as a
result. It is clear that the honour of the Crown is engaged in those
negotiations, but it is not the course of the negotiations that is the subject
of the appellants' appeal to the honour of the Crown. If the honour of the
Crown is engaged by the exercise of the discretion as to whether or not to lay
charges, I would find that the Crown's duty to consult and accommodate has been
satisfied by the course of dealings between the parties.
[37]
However,
in my view the honour of the Crown is not engaged at all on these facts. The
exercise of police discretion exists in a different legal context from the
obligations of the Crown with respect to Aboriginal peoples. The framework
within which the police and the Attorney General (and his agents) exercise
their discretion does not overlap the framework within which Canada seeks to achieve a just and equitable resolution of the claims of its Aboriginal
peoples. The concepts of consultation and accommodation, in the sense required
by the doctrine of the honour of the Crown, cannot coexist with the independent
exercise of police and prosecutorial discretion.
[38]
For
these reasons, as well as those given by the application judge, I would dismiss
the appeal.
“J.D. Denis Pelletier”
“I
agree.
John M. Evans J.A.”
“I
agree.
C. Michael
Ryer J.A.”
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