Cheryl J. Tobias

This appeal addressed public interest standing in a broad constitutional challenge to prostitution-related Criminal Code provisions.

The Court reaffirmed that standing is determined by a flexible, purposive weighing of three factors: serious justiciable issue, genuine interest, and whether the proceeding is a reasonable and effective means to bring the claims forward.

It held that parallel or potential litigation does not automatically defeat standing and that practical barriers affecting directly impacted persons are relevant to the analysis.

In the circumstances, the respondents met the test and were granted public interest standing.

The Lax Kw'alaams Indian Band claimed an Aboriginal right to the commercial harvesting and sale of all species of fish within their traditional waters, arguing this right evolved from their pre-contact practices.

The trial judge found that while the pre-contact society relied heavily on fishing for sustenance, their only significant trade was in eulachon grease, and trade in other fish was not integral to their distinctive culture.

The Supreme Court of Canada dismissed the appeal, holding that a modern commercial fishery in all species lacked sufficient continuity and proportionality with the pre-contact trade in eulachon grease.

The Court also affirmed that Aboriginal rights claims must be characterized based on the pleadings, rejecting a 'commission of inquiry' approach to determining pre-contact practices.

The appellant, a bookstore catering to the gay and lesbian community, sought advance costs to fund litigation against Customs regarding the detention of four books and a systemic review of Customs' practices.

The Supreme Court of Canada dismissed the appeal, holding that the case did not meet the strict requirements for an advance costs award established in Okanagan.

The Court found that the four books appeal was too narrow to constitute special circumstances of public importance, and the systemic review was an unnecessary expansion of the litigation.

The federal government approved the construction of a winter road through Wood Buffalo National Park, which would traverse the traditional hunting and trapping grounds of the Mikisew Cree First Nation.

The Mikisew argued this infringed their rights under Treaty 8.

The Supreme Court of Canada held that while the Crown has a treaty right to 'take up' lands for purposes such as transportation, this right is subject to the honour of the Crown and the duty to consult.

The Court found that the Crown failed to adequately consult the Mikisew before approving the road, thereby breaching its duty.

The appeal was allowed and the Minister's approval was quashed.

During a murder investigation, police used a 'crime boss' undercover scenario to elicit a confession from the accused.

At the voir dire, the trial judge granted a publication ban on the identity of the undercover officers and the investigative techniques used.

The appellant newspaper appealed the ban directly to the Supreme Court of Canada.

The Court allowed the appeal, applying the Dagenais/Mentuck test.

It held that a ban on the investigative techniques was not necessary and its deleterious effects on freedom of expression outweighed its salutary effects.

However, a ban on the officers' identities was necessary to protect ongoing operations, but was limited to a period of one year.

The appellant challenged a conviction for selling salmon caught under an Indian food fish licence, arguing that the prohibition on sale infringed an aboriginal right protected by s. 35(1) of the Constitution Act, 1982.

The majority held that aboriginal rights are identified by asking whether the claimed activity is an element of a practice, custom or tradition integral to the distinctive culture of the specific aboriginal group prior to contact with Europeans.

Applying that framework, the Court held that exchange of fish for money or other goods was incidental rather than integral to the Sto:lo’s distinctive culture and therefore not constitutionally protected.

The appeal was dismissed, with important dissents proposing broader approaches grounded in livelihood, continuity, and historical use of resources.

The appellants were convicted of attempting to sell herring spawn on kelp without the required licence and argued that the prohibition infringed an aboriginal right protected by s. 35(1) of the Constitution Act, 1982.

The majority held that the conduct amounted to an attempt to sell and that the Heiltsuk had established an aboriginal right to trade herring spawn on kelp on a commercial basis, grounded in pre-contact practices integral to their distinctive culture.

The majority further held that the right had not been extinguished and that the regulatory scheme prima facie infringed it.

However, the evidentiary record was insufficient to determine whether the infringement was justified, so a new trial was ordered on guilt or innocence and on justification.

A dissent would have found either no applicable aboriginal right in the circumstances or that any such right had been extinguished.

The appellant, a food processing company, was convicted of purchasing and selling salmon caught by members of the Sheshaht and Opetchesaht bands under Indian food fish licences, contrary to the British Columbia Fishery (General) Regulations.

The appellant argued that the regulations infringed the aboriginal rights of the bands to sell fish, protected under s. 35(1) of the Constitution Act, 1982.

The Supreme Court of Canada dismissed the appeal, holding that the exchange of fish for money or other goods was not an integral part of the distinctive cultures of the Sheshaht and Opetchesaht prior to contact with Europeans.

Therefore, no aboriginal right to sell fish was established, and the regulations were validly applied.

The appellant, a Wet'suwet'en Indian, was charged with fishing without a licence contrary to the British Columbia Fishery (General) Regulations.

He argued that the licensing scheme infringed his aboriginal rights under s. 35(1) of the Constitution Act, 1982, and that a band by-law applied to the river.

The Supreme Court of Canada held that the river was not part of the reserve, so the band by-law did not apply.

While the mere requirement of a licence did not infringe the appellant's aboriginal rights, the mandatory conditions attached to the licence did constitute a prima facie infringement that the government failed to justify.

Because the unconstitutional conditions were integral to the licence and not severable, the licence itself was invalid.

The appeal was allowed and the appellant's acquittal was restored.

The appellants, members of the Squamish Indian Band, were charged with contravening the British Columbia Fishery (General) Regulations for net fishing on the Squamish River adjacent to their reserve.

They argued that a band by-law, passed pursuant to s. 81(1)(o) of the Indian Act, authorized their fishing and superseded the federal regulations.

The Supreme Court of Canada held that the fishery was not part of the reserve, the ad medium filum aquae presumption did not apply to navigable rivers to extend the reserve boundary, and the phrase 'on the reserve' in the Indian Act meant strictly within the reserve boundaries.

Consequently, the band by-law did not apply extra-territorially to the river, and the convictions were upheld.

The United States sought the extradition of the respondent for conspiracy to export high-technology equipment to the U.S.S.R. and for a scheme to defraud a computer corporation.

The extradition judges committed the respondent, but the British Columbia Court of Appeal granted habeas corpus, holding that the offences must be listed in the extradition treaty according to both Canadian and U.S. law.

The Supreme Court of Canada allowed the appeals, holding that the extradition judge's role is limited to determining whether a prima facie case exists that the conduct constitutes an extradition crime according to Canadian law, and does not require proof of foreign law.