Her Majesty the Queen v. Blackbird et al. [Indexed as: R. v. Blackbird]
74 O.R. (3d) 241
[2005] O.J. No. 273
Court of Appeal for Ontario,
Catzman, Laskin and Feldman JJ.A.
January 31, 2005
Environmental law -- Offences -- Defendants being charged with offences under Migratory Birds Convention Act as result of activities on Indian reserve -- Defendants applying to quash information on ground that by-law passed by Band Council under authority of Indian Act governed migratory bird hunting on reserve -- Application judge erring in granting application on basis that by-law constituted comprehensive regulatory scheme that covered field exclusively and ousted jurisdiction of Migratory Birds Convention Act -- Act and by-law not conflicting in sense that one compels what other forbids -- By- law not ousting application of Act -- Defendants could be charged under either Act or by-law -- Indian Act, R.S.C. 1985, c. I-5 -- Migratory Birds Convention Act, 1994, S.C. 1994, c. 22.
The defendants were charged with offences under the Migratory Birds Convention Act, 1994 (the "MBCA"). All of the offences were alleged to have taken place on the Walpole Island Indian Reserve. The defendants applied to quash the information on the ground that a by-law passed by the Walpole Island Band Council in 1955 under the authority of the Indian Act governed migratory bird hunting on the reserve. The application judge granted the application, holding that the by-law was a comprehensive regulatory scheme that displayed a sufficient intent to cover the field exclusively and oust the jurisdiction of the MBCA. The Summary Conviction Appeal Court judge allowed the Crown's appeal, holding that the by-law did not oust the application of the MBCA and that both regulatory schemes could co-exist because no operational conflict existed between them. Thus, charges could be laid either under the by-law or under the MBCA. The defendants appealed.
Held, the appeal should be dismissed.
The defendants acknowledged on this appeal that the MBCA does not conflict with the by-law in the sense that compliance with one regulatory regime requires a breach of the other. That admission was fatal to their case. Wherever two regulatory regimes bear on the same subject matter, and the court must assess whether one or both regimes can regulate an activity, the proper question is not whether one is a "comprehensive code" occupying the field and ousting the application of the other, but whether compliance with one requires breach of the other. Unless compliance with both is impossible, then the two regimes can live together. In this case, as the defendants acknowledged, the MBCA and the by-law do not conflict. Neither compels what the other forbids. The regimes are overlapping, not conflicting. The defendants could have been charged under either the MBCA or the by-law. Even if it were the case that one regime can amount to a code sufficiently comprehensive to oust the applic ation of the other regime in the absence of an operational conflict, the by-law is not such a comprehensive code. Nothing in the language or the context of the by-law suggests that it was intended to be comprehensive or that it was intended to preclude the MBCA's application on the reserve. [page242]
APPEAL from the order of Brockenshire J., sitting as a summary conviction appeal judge, reported at (2003), 2003 64308 (ON SC), 68 O.R. (3d) 763, [2003] O.J. No. 5245 (S.C.J.), setting aside the order of Hornblower J. quashing an information, reported at (2003), 2003 72340 (ON SC), 64 O.R. (3d) 385, [2003] O.J. No. 1102 (C.J.).
R. v. Lewis, 1996 243 (SCC), [1996] 1 S.C.R. 921, [1996] S.C.J. No. 46, 19 B.C.L.R. (3d) 244, 133 D.L.R. (4th) 700, 196 N.R. 165, [1996] 5 W.W.R. 348, 105 C.C.C. (3d) 523, consd Other cases referred to 114957 Canada Ltée (Spraytech, Société d'arossage) v. Hudson (Town), [2001] 2 S.C.R. 241, [2001] S.C.J. No. 42, 200 D.L.R. (4th) 419, 171 N.R. 201, 19 M.P.L.R. (3d) 1, 2001 SCC 40; R. v. Jimmy, 1987 2600 (BC CA), [1987] B.C.J. No. 1516, 15 B.C.L.R. (2d) 145, [1987] 5 W.W.R. 755 (C.A.); Toronto (City) v. Goldlist Properties Inc. (2003), 2003 50084 (ON CA), 67 O.R. (3d) 441, [2003] O.J. No. 3931, 232 D.L.R. (4th) 298, 44 M.P.L.R. (3d) 1 (C.A.) Statutes referred to Indian Act, R.S.C. 1985, c. I-5, ss. 81 [as am.], 82(2) Interpretation Act, R.S.C. 1985, c. I-21, ss. 40(2), 44(h) Migratory Birds Convention Act, 1994, S.C. 1994, c. 22, s. 13 Rules and regulations referred to Migratory Birds Regulations, C.R.C., c. 1035 Treaties and conventions referred to Migratory Birds Convention; 16 August 1916; U.K.T.S. 1917 No. 7, Preamble Protocol Amending the Migratory Birds Convention, 14 December 1995, Can. T.S. 1999 No. 34, Preamble
Russell M. Raikes and John C. Peters, for appellants. Croft Michaelson and Tom Andreopoulos, for respondent.
The judgment of the court was delivered by
LASKIN J.A.:--
A. Introduction
1The appellants were charged with 53 counts of illegal hunting practices on the Walpole Island Indian Reserve contrary to the Migratory Birds Convention Act, 1994, S.C. 1994, c. 22 ("MBCA"). They applied to quash the information on the ground that a by-law passed by the Walpole Island Band Council in 1955 governed migratory bird hunting on the reserve. Hornblower J. granted the application. However, Brockenshire J. allowed a Crown appeal and remitted the charges to the Ontario Court of Justice.
2The appellants appeal to this court. The issue on the appeal is whether the MBCA and its regulations apply on the reserve. The appellants submit that they do not. They contend that the [page243] 1955 Band Council by-law is a "comprehensive code" that regulates the hunting of migratory birds on the reserve and, therefore, ousts the application of the MBCA. I would not give effect to this submission, substantially for the reasons of Brockenshire J. I would therefore dismiss the appeal.
B. The Two Regulatory Regimes
a. The MBCA
3The first Migratory Birds Convention Act was enacted in 1917. The statute implemented this country's obligations under the Migratory Birds Convention, Canada and United States, 16 August 1916, U.K.T.S. 1917 No. 7. The Convention aimed to slow the decline of migratory birds, a decline largely caused by a lack of uniform enforcement of game laws. The Convention's objective was to prohibit, both in Canada and the United States, the taking and killing of birds during their nesting season or during their migration to and from their breeding grounds. To achieve this objective, the two countries adopted a "uniform system of protection" based on trans-border consultation and co-operation (the Convention, supra, Preamble). Regulations were passed annually, before the beginning of the fall hunting season.
4In 1994, Parliament repealed the Migratory Birds Convention Act and replaced it with the MBCA, an updated version of the 1917 statute. New detailed regulations -- the Migratory Birds Regulations, C.R.C., c. 1035 -- were passed. Also, Canada and the United States entered into the Protocol Amending the Migratory Birds Convention, 14 December 1995, Can. T.S. 1999 No. 34. The Protocol reaffirmed the two countries' commitment "to the long-term conservation of ... migratory birds ... through a more comprehensive international framework that involves working together to cooperatively manage their populations" (Preamble).
5The MBCA contains additional conservation measures and much stiffer penalties than its predecessor for a breach of the Act or a regulation under it. For a first summary conviction offence under the MBCA, an individual may receive a fine of $50,000 or up to six months' imprisonment or both (s. 13(1)(a)(ii)); for a first indictable offence, the penalties increase to a maximum fine of $100,000 or up to five years' imprisonment or both (s. 13(1)(b)(ii)). These fines may be doubled for subsequent offences (s. 13(2)). Also, an individual may be required to pay an additional fine equivalent to the monetary benefits gained by contravening the MBCA (s. 13(5)). Corporations that breach the MBCA may receive even greater fines than individuals. [page244]
b. The 1955 Walpole Island by-law
6Section 81(1)(o) of the Indian Act, R.S.C. 1985, c. I-5 and its predecessor s. 80(o), permits a band council to pass a by-law for "the preservation, protection and management of fur- bearing animals, fish and other game on the reserve". Acting under this provision, in 1955, the Walpole Island Band Council passed By-law No. 5"a by-law to provide for the preservation, protection and management of fish and game in the Walpole Island Indian Reserve" (Walpole Island Indian Reserve, By-law No. 5 (7 February 1955), Preamble).
7The by-law contains 14 sections: ss. 1-7 address fishing; ss. 8-13 address hunting; and s. 14 is the penalty provision. Section 8 requires non-Band members to obtain a permit from the Band Council to hunt on the reserve. Section 11, the provision relevant to this appeal, incorporates the regulations under the Migratory Birds Convention Act for the hunting of ducks and the regulations under the "Ontario Game Act" (intended to be The Game and Fisheries Act) for the hunting of other game. Section 11 states:
Open season, bag limits, possession limits and all other matters not provided for in this by-law shall be, with respect to ducks, as set out in regulations for the Province of Ontario made under authority of the Migratory Birds Convention Act and, with respect to other game, as provided in the regulations made under the Ontario Game Act for the contiguous provincial lands.
Section 14 prescribes that any person who violates a provision of By-law No. 5 shall be guilty of a summary conviction offence and liable to a maximum fine of $100 or to imprisonment for up to 30 days or to both fine and imprisonment.
8Under s. 82(2) of the Indian Act, a by-law made under s. 81 comes into force 40 days after a copy is sent to the Minister of Indian Affairs, unless the Minister disallows it within that time. The Minister did not disallow Walpole Island By-law No. 5. Therefore, the by-law became a statutory instrument equivalent to a federal regulation. See R. v. Jimmy, 1987 2600 (BC CA), [1987] B.C.J. No. 1516, 15 B.C.L.R. (2d) 145 (C.A.).
9In 1974, the Walpole Island Band Council passed another by-law -- By-law No. 23 -- which the appellants claim is relevant to their position on the appeal. By-law No. 23 was passed under the authority of s. 81(1)(c) of the Indian Act -- by-laws for "the observance of law and order" -- and established a police department on the Reserve to enforce the Council's by-laws as well as federal and provincial legislation (Walpole Island Indian Reserve, By-law No. 23 (3 December 1974), Title).
C. The Charges
10In October 2000, the Canadian Wildlife Service carried out an undercover investigation on the Walpole Island Indian [page245] Reserve. This investigation led to the charges against the appellants. Each appellant was an outfitter or guide for hunting excursions on the reserve. Each was charged with numerous offences under the MBCA and its regulations. All of the offences were alleged to have taken place on the reserve. The charges included hunting out of season, hunting before and after the daily permissible times, illegal baiting, exceeding possession limits for ducks, selling ducks, improper transport of ducks, using improper shotguns and shots, hunting from a powerboat and hunting within 400 metres of a bait deposit. Of the 53 charges, 12 related to ducks, seven to geese and the rest to migratory birds generally.
D. The Decisions of the Ontario Court of Justice and the Summary Conviction Appeal Court
a. The Ontario Court of Justice (Hornblower J.)
11In November 2002, the appellants applied to quash the information under which they were charged. They claimed that the 1955 by-law was a comprehensive code regulating hunting and fishing on the reserve, which precluded the application of the MBCA and regulations on the reserve.
12Hornblower J. granted the application. He did so on the basis of two key holdings. First, he held that s. 11 of the by- law incorporated only the regulations under the Migratory Birds Convention Act existing at the time the by-law was passed, that is, in 1955. In his words"The adoption by reference of ... the regulations under the Migratory Birds Convention Act for ducks, was static as opposed to ambulatory ... Subsequent revisions ... were not adopted into the by-lawö (at p. 388 O.R., pp. 5-6 QL). Second, he held that the 1955 by-law was a "comprehensive regulatory scheme" that "displays a sufficient intent to cover the field exclusively and oust the jurisdiction of the [MBCA]" (at p. 389 O.R., pp. 7, 9 QL).
b. The Summary Conviction Appeal Court (Brockenshire J.)
13In the Summary Conviction Appeal Court, Brockenshire J. allowed the Crown's appeal. He concluded that the trial judge erred in his interpretation of s. 11 of the by-law. In Brockenshire J.'s opinion, s. 11 of the by-law incorporated by reference, not just the Migratory Birds Convention Act and regulations in effect for ducks in 1955, but all subsequent revisions to the Act and regulations. This conclusion was dictated by ss. 40(2) and 44(h) of the Interpretation Act, R.S.C. 1985, c. I-21, which state that a reference to an enactment is deemed to be a reference to the enactment as amended, and that when one enactment has been [page246] repealed and another substituted for it, a reference to the repealed enactment must be read as a reference to the provisions of the new enactment relating to the same subject matter.
14Second, Brockenshire J. concluded that the 1955 by-law did not oust the application of the MBCA and its regulations. Instead, relying on the Supreme Court of Canada's decision in 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241, [2001] S.C.J. No. 42, he held that both regulatory regimes could coexist because no operational conflict existed between them. Thus, charges could be laid either under the by-law or under the MBCA and its regulations.
E. Discussion
15In this court, the appellants acknowledged that Brockenshire J. was correct in concluding that s. 11 of the by- law incorporated by reference all amendments to the MBCA and its regulations. They also acknowledged that the MBCA and its regulations do not conflict with By-law No. 5 in the sense that compliance with one regulatory regime requires a breach of the other. Nonetheless, the appellants maintain their submission that By-law No. 5 is a comprehensive regulatory scheme, which leaves no room for the operation of the MBCA and its regulations on the reserve. They contend that the charges against them had to be laid under the by-law, not under the MBCA. The practical advantage of this submission for the appellants is obvious: penalties under the by-law are much lighter than those under the MBCA.
16In support of their submission, the appellants point to Parliament's purpose in enacting s. 81(1) of the Indian Act: to give band councils authority to manage and regulate a list of activities, including hunting and fishing, on reserves. They also point to Iacobucci J.'s observation in R. v. Lewis, 1996 243 (SCC), [1996] 1 S.C.R. 921, [1996] S.C.J. No. 46, at p. 957 S.C.R., that a band council by-law passed under s. 81(1)(o) of the Indian Act did not provide a defence to a charge under the British Columbia Fishery (General) Regulation because the activity in question did not take place on the reserve and a s. 81(1)(o) by-law does not have extraterritorial effect. The implication of Iacobucci J.'s observation, the appellants argue, is that for alleged infractions incurring on the reserve -- which is the case here -- the s. 81(1)(o) by-law takes precedence over any general regulation, federal or provincial.
17I do not agree with the appellants' submission. It seems to me the appellants' acknowledgment that the MBCA and the 1955 by-law do not conflict -- in the sense that one compels what the other forbids -- is fatal to their appeal. See Spraytech, supra, at [page247] pp. 270-72 S.C.R.; Toronto (City) v. Goldlist Properties Inc. (2003), 2003 50084 (ON CA), 67 O.R. (3d) 441, [2003] O.J. No. 3931 (C.A.), at para. 67. This "impossibility of dual compliance" principle drawn from the development of our paramountcy jurisprudence in division of powers cases now has widespread application. It applies wherever two regulatory regimes bear on the same subject matter. It is a salutary principle of co-operative government in a federal system. Thus, where the court must assess whether one or both regimes can regulate an activity, the proper question is not whether one is a "comprehensive code" occupying the field and ousting the application of the other, but whether compliance with one requires breach of the other. Unless compliance with both is impossible, then the two regimes can live together.
18The hypothetical situation in Lewis -- if the challenged activity took place on the reserve -- may be a case where compliance with one regime (the band council by-law) would nonetheless be a breach of the other regime (the Provincial Fishery Regulation).
19In the case before us, however, the two regimes -- the MBCA and the 1955 by-law -- do not conflict. Neither compels what the other forbids. The regimes are overlapping, but not conflicting. That they have different penalties for the same offence does not meet the impossibility of dual compliance principle now well-established in the case law. Therefore, Brockenshire J. was correct in finding no conflict between the MBCA and By-law No. 5, and in concluding that the appellants could have been charged under either.
20The premise of the appellants' submission is that even absent an operational conflict, one regime can amount to a code sufficiently comprehensive to oust the application of the other regime. Even if I were to accept the premise, I cannot accept the submission that By-law No. 5 is such a comprehensive code. Nothing in the language or the context of this by-law suggests that it was intended to be "comprehensive" or that it was intended to preclude the MBCA's application on the reserve, either for ducks or for any other game.
21The language of the by-law itself does not exhibit such an intent. It is a short document with only one brief section devoted to the illegal hunting of ducks and game. It contains no wording showing that it was meant to be an exclusive regime for the regulation of hunting of migratory birds on the reserve.
22The context in which the by-law was passed is also significant. When it was passed, the regulatory regime under the Migratory Birds Convention Act had been in existence for nearly 40 years. That regime, derived from a Convention and a Protocol, was designed to redress a serious environmental concern in [page248] North America. I do not think that a local by-law could oust this international regime unless, at a minimum, the by-law contained clear language expressing this ouster, language that would permit the Minister to realistically exercise the power of disallowance under s. 81 of the Indian Act.
23I would dismiss the appeal.
Appeal dismissed.