Michael Swinwood

The applicants, who were charged with various provincial hunting and fishing offences, brought an application in the Superior Court for a writ of prohibition to stay the proceedings in the Ontario Court of Justice and for an order of mandamus to compel the Crown to consult and accommodate their asserted aboriginal title.

The Superior Court dismissed the applications, holding that constitutional and aboriginal rights defences must be raised in the court having jurisdiction over the charges (the Ontario Court of Justice).

The court also found no basis for mandamus as no demand had been refused.

The appellants were charged with a hunting offence under the Provincial Offences Act for allegedly harvesting a moose out of season.

At trial, they brought a Charter application alleging a violation of section 15 of the Canadian Charter of Rights and Freedoms and seeking advanced funding for defence witnesses and counsel fees under section 24(1).

The trial court dismissed the Charter application.

The appellants appealed the dismissal.

The appeal court dismissed the appeal for lack of jurisdiction, finding that the dismissal of a pre-trial Charter motion is not a final order appealable under section 116 of the Provincial Offences Act, and that advanced funding does not constitute "costs" within the meaning of section 116(1)(e).

The appellants sought a writ of prohibition to prevent the Ontario Court of Justice from hearing charges against them under the Fish and Wildlife Conservation Act, arguing that the Act was ultra vires, that their claims arose under federal common law, that the prosecution was precluded by inter-jurisdictional immunity, and that the court was institutionally biased.

The application judge dismissed the application, save for prohibiting a specific justice of the peace from conducting the trial.

The Court of Appeal dismissed the appeal, affirming that constitutional and aboriginal rights claims must be raised as defences in the court having jurisdiction over the charges, and that there was no merit to the claim of institutional bias.

The respondents were charged with fraud related to the issuance of alleged native status cards.

They applied for state-funded counsel to raise a constitutional challenge based on their aboriginal heritage, without first applying to Legal Aid.

The trial judge ordered the Crown to fund the defence and pay costs of the application.

The Crown appealed.

The Court of Appeal allowed the appeal and set aside the funding and costs orders, holding that under R. v. Rowbotham, defendants must apply to Legal Aid or demonstrate futility before seeking a funding order.