Ontario Federation of Anglers and Hunters et al. v. Minister of Natural Resources and Forestry et al.

[Indexed as: Ontario Federation of Anglers and Hunters v. Ontario (Minister of Natural Resources and Forestry)]

Ontario Reports

Ontario Superior Court of Justice,

Divisional Court,

Sachs J.

May 2, 2016

131 O.R. (3d) 223 | 2016 ONSC 2806

Case Summary

Aboriginal peoples — Hunting and fishing rights — Applicants bringing application for judicial review of decision of Minister of Natural Resources to apply Interim Enforcement Policy (which permits aboriginal people to hunt and fish for good, social and ceremonial purposes) within geographical boundaries of 1923 Williams Treaties and to respondent First Nations — Application quashed — Exercise of prosecutorial discretion only reviewable in cases of flagrant impropriety or abuse of process — Ontario's application of Interim Enforcement Policy within geographical boundaries of 1923 Williams Treaties not amounting to abuse of process on basis that Supreme Court of Canada ruled in 1994 that respondent First Nations had surrendered their constitutional rights under s. 35 of Constitution Act, 1982 — Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 35.

Charter of Rights and Freedoms — Equality rights — Ontario's decision to apply Interim Enforcement Policy (which permits aboriginal people to hunt and fish for good, social and ceremonial purposes) within geographical boundaries of 1923 Williams Treaties and to respondent First Nations not violating non-aboriginal applicant's equality rights under s. 15 of Charter — Canadian Charter of Rights and Freedoms, s. 15. [page224]

The applicants brought an application for judicial review of the decision of the Minister of Natural Resources to apply the ministry's Interim Enforcement Policy (which permits aboriginal people to hunt and fish for good, social and ceremonial purposes) within the geographical boundaries of the 1923 Williams Treaties and to the respondent First Nations. They submitted that the decision was an unlawful dispensation of the law because it ignored the Supreme Court of Canada's 1994 decision in R. v. Howard that, by virtue of the 1923 Williams Treaties, the respondent First Nations had surrendered their constitutional rights under s. 35 of the Constitution Act, 1982. They also submitted that the decision violated the individual applicant L's rights under s. 15 of the Canadian Charter of Rights and Freedoms. The minister brought a motion to quash the application.

Held, the motion should be granted.

It was plain and obvious that the applicants sought to have the court rule on the exercise of prosecutorial discretion, which is not reviewable by the courts in the absence of flagrant impropriety or abuse of process. The continuing process of defining and searching for the intended purposes of the Williams Treaties had led the Attorneys General of Canada and Ontario to take the position, and to argue in another case which was currently before the courts, that not all pre-existing treaty harvesting rights of the respondent First Nations were extinguished by the Williams Treaties. Those were clearly matters for the Attorneys General to address and were matters that involved the honour of the Crown. It was plain and obvious that the impugned decision did not constitute an abuse of process that would justify the court's encroaching on the exercise of prosecutorial discretion.

Neither the Interim Enforcement Policy nor the minister's decision to apply it within the geographical boundaries of the Williams Treaties altered L's rights, imposed any burden on him, required him to do or refrain from doing anything or exposed him to legal consequences. It was plain and obvious that the claim under s. 15(1) of the Charter could not succeed. It was also plain and obvious that the application of the Interim Enforcement Policy is an ameliorative program or activity under s. 15(2) of the Charter.

Cases referred to

Alderville Indian Band v. Canada, [2014] F.C.J. No. 857, 2014 FC 155; Carter v. Canada (Attorney General), [2015] 1 S.C.R. 331, [2015] S.C.J. No. 5, 2015 SCC 5, 17 C.R. (7th) 1, 327 C.R.R. (2d) 334, 66 B.C.LR. (5th) 215, [2015] 3 W.W.R. 425, 320 C.C.C. (3d) 1, 366 B.C.A.C. 1, 468 N.R. 1, 384 D.L.R. (4th) 14, 2015EXP-471, J.E. 2015-245, EYB 2015-247729, 120 W.C.B. (2d) 561, 252 A.C.W.S. (3d) 74; R. v. Catagas, [1977] M.J. No. 73, 81 D.L.R. (3d) 396, [1978] 1 W.W.R. 282, 38 C.C.C. (2d) 296, 9 C.N.L.C. 476, 2 C.R. (3d) 328, 2 W.C.B. 48 (C.A.); R. v. Howard, [1994] 2 S.C.R. 299, [1994] S.C.J. No. 43, 115 D.L.R. (4th) 312, 166 N.R. 282, J.E. 94-800, 71 O.A.C. 278, 90 C.C.C. (3d) 131, [1994] 3 C.N.L.R. 146, 23 W.C.B. (2d) 322; R. v. Sparrow, [1990] 1 S.C.R. 1075, [1990] S.C.J. No. 49, 70 D.L.R. (4th) 385, 111 N.R. 241, [1990] 4 W.W.R. 410, J.E. 90-851, 46 B.C.L.R. (2d) 1, 56 C.C.C. (3d) 263, [1990] 3 C.N.L.R. 160, 10 W.C.B. (2d) 194, consd

Other cases referred to

Canada (Attorney General) v. Bedford, [2013] 3 S.C.R. 1101, [2013] S.C.J. No. 72, 2013 SCC 72, 366 D.L.R. (4th) 237, 452 N.R. 1, 312 O.A.C. 53, 2014EXP-30, J.E. 2014-21, 303 C.C.C. (3d) 146, 7 C.R. (7th) 1, 297 C.R.R. (2d) 334, 110 W.C.B. (2d) 753; Dolan v. Ontario (Civilian Commission on Police Services), [2011] O.J. No. 1028, 2011 ONSC 1376, 277 O.A.C. 109, 24 Admin. L.R. (5th) 284, 199 A.C.W.S. (3d) 985 (Div. Ct.); Kahkewistahaw First Nation v. Taypotat, [2015] 2 S.C.R. 548, [2015] S.C.J. No. 30, 2015 SCC 30, 471 N.R. 173, 336 C.R.R. (2d) 127, 2015EXP-1674, 384 D.L.R. (4th) 1, 88 Admin. L.R. (5th) 1, [2015] 3 C.N.L.R. 96, J.E. 2015-923, EYB 2015-252534, 252 A.C.W.S. (3d) 696; [page225] Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372, [2002] S.C.J. No. 45, 2002 SCC 65, 217 D.L.R. (4th) 513, 293 N.R. 201, [2003] 1 W.W.R. 193, J.E. 2002-1884, 7 Alta. L.R. (4th) 1, 312 A.R. 275, 43 Admin. L.R. (3d) 167, 168 C.C.C. (3d) 97, 4 C.R. (6th) 255, 117 A.C.W.S. (3d) 166, 54 W.C.B. (2d) 603; Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623, [2013] S.C.J. No. 14, 2013 SCC 14, 291 Man. R. (2d) 1, 441 N.R. 209, 2013EXP-799, J.E. 2013-429, [2013] 2 C.N.L.R. 281, 27 R.P.R. (5th) 1, [2013] 4 W.W.R. 665, 355 D.L.R. (4th) 577, 223 A.C.W.S. (3d) 941; Ontario Federation of Anglers and Hunters v. Alderville Indian Band, [2014] F.C.J. No. 606, 2014 FCA 145, 461 N.R. 327 [Leave to appeal to S.C.C. refused [2014] S.C.C.A. No. 344]; Perry v. Ontario (1997), 33 O.R. (3d) 705, [1997] O.J. No. 2314, 148 D.L.R. (4th) 96, 100 O.A.C. 370, [1998] 2 C.N.L.R. 79, 44 C.R.R. (2d) 73, 71 A.C.W.S. (3d) 811 (C.A.); R. v. Anderson, [2014] 2 S.C.R. 167, [2014] S.C.J. No. 41, 2014 SCC 41, 2014EXP-1824, J.E. 2014-1034, EYB 2014-238146, 350 Nfld. & P.E.I.R. 289, 60 M.V.R. (6th) 1, 310 C.R.R. (2d) 197, 311 C.C.C. (3d) 1, 11 C.R. (7th) 1, 373 D.L.R. (4th) 577, [2014] 3 C.N.L.R. 267, 458 N.R. 1, 114 W.C.B. (2d) 278; R. v. Donio, [2001] O.J. No. 1371, [2001] O.T.C. 252, 49 W.C.B. (2d) 473 (S.C.J.); R. v. Kapp, [2008] 2 S.C.R. 483, [2008] S.C.J. No. 42, 2008 SCC 41, 175 C.R.R. (2d) 185, EYB 2008-135098, J.E. 2008-1323, [2008] 8 W.W.R. 1, 294 D.L.R. (4th) 1, 232 C.C.C. (3d) 349, [2008] 3 C.N.L.R. 347, 376 N.R. 1, 256 B.C.A.C. 75, 37 C.E.L.R. (3d) 1, 58 C.R. (6th) 1, 78 W.C.B. (2d) 343; R. v. Power, [1994] 1 S.C.R. 601, [1994] S.C.J. No. 29, 165 N.R. 241, J.E. 94-649, 117 Nfld. & P.E.I.R. 269, 89 C.C.C. (3d) 1, 29 C.R. (4th) 1, 2 M.V.R. (3d) 161, 23 W.C.B. (2d) 194; Zhang v. Canada (Attorney General), [2007] F.C.J. No. 736, 2007 FCA 201, 365 N.R. 277, 61 Admin. L.R. (4th) 99, 155 C.R.R. (2d) 332, 65 Imm. L.R. (3d) 1, 158 A.C.W.S. (3d) 587 [Leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 411]

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 15, (1), (2), 24

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, Part II, s. 35, (1)

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 138

Fisheries Act, R.S.C. 1970, c. F-14

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(1) (b)

MOTION to quash an application for judicial review.

Timothy S.B. Danson and Marjan Delavar, for applicants Ontario Federation of Anglers and Hunters and Angelo Lombardo.

Sara Blake, Kristina Gill and Padraic Ryan, for respondent Minister of Natural Resources and Forestry.

William Henderson and Ceyda Turan, for respondents Williams Treaties First Nations.

SACHS J.: —

Introduction

[1] The Minister of Natural Resources (the "minister") brings this motion to quash the Ontario Federation of Anglers and [page226] Hunters' ("OFAH") application for judicial review. In its application for judicial review, OFAH seeks a number of declarations as against the minister. These declarations are aimed at ensuring that, pending a decision by a competent court of jurisdiction reversing the decision of the Supreme Court of Canada in R. v. Howard, [1994] 2 S.C.R. 299, [1994] S.C.J. No. 43, the minister should not be able to apply its Interim Enforcement Policy ("IEP") to the geographical boundaries of the 1923 Williams Treaties and the signatories to the Williams Treaties.

[2] In Howard, the Supreme Court of Canada found that, by virtue of the 1923 Williams Treaties, the respondent First Nations (i.e., the William Treaties First Nations, hereafter the "WTFN") had surrendered their constitutional rights under s. 35 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. The WTFN have brought an action in the Federal Court of Canada (the "Alderville action") relating to the negotiation of the Williams Treaties. Both the federal and the provincial Crowns are parties to that action, which is in the midst of being tried. Both the federal and the provincial Crowns have taken the position in the Alderville action that the Williams Treaties of 1923 did not include a surrender of the pre-existing treaty rights of the WTFN to hunt and fish for food, social and ceremonial purposes in their traditional territories covered by these treaties.

[3] After taking this position, the minister advised its enforcement officers that the IEP was to apply to the area covered by the 1923 Williams Treaties. The minister implemented the IEP in response to the decision of the Supreme Court of Canada in R. v. Sparrow, [1990] 1 S.C.R. 1075, [1990] S.C.J. No. 49. In Sparrow, the Supreme Court of Canada recognized that, pursuant to s. 35 of the Constitution Act, Aboriginal people generally retain rights to hunt and fish for food, social and ceremonial purposes in their traditional territories.

[4] OFAH's position in this application for judicial review is that, in deciding to apply the IEP to the area covered by the 1923 Williams Treaties, the minister is ignoring the decision of the Supreme Court in Howard. This, in turn, is an unlawful dispensation of the law (i.e., a concept developed to curb the arbitrary decisions of the Crown to dispense with the law). OFAH also asserts that in applying the IEP to the Williams Treaties lands, the minister is violating the s. 15 Canadian Charter of Rights and Freedoms rights of its members. To this end, Angelo Lombardo, OFAH's executive director, has been added as an applicant to its application on consent (since only individuals can pursue s. 15 claims). [page227]

[5] The minister and the WTFN assert that none of the positions advanced by the applicants on their application for judicial review is sustainable and that it is plain and obvious that that application should be quashed.

[6] First, they argue that the IEP is not a dispensation; it is a policy relating to the exercise of prosecutorial discretion. Exercises of prosecutorial discretion are immune from suit.

[7] They also argue that the applicants have no standing to bring the application for judicial review or to assert any rights under s. 15.

[8] Finally, they submit that, if the applicants do have standing to assert a claim under s. 15, it is plain and obvious that the IEP is a government activity designed to remedy Aboriginal disadvantages and, as such, is constitutionally permissible under s. 15(2) of the Charter.

[9] For the reasons that follow, I would allow the motion and quash the applicants' application for judicial review.

Background

Section 35(1) of the Constitution Act

[10] In 1982, the rights of Aboriginal peoples were enshrined in the Constitution Act, 1982. Section 35(1), which is found in Part II of that Act, entitled, "Rights of Aboriginal Peoples of Canada", provides as follows:

35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

The Sparrow decision

[11] In Sparrow, the appellant was charged in 1984 under the Fisheries Act, R.S.C. 1970, c. F-14 with fishing with a drift net longer than permitted by the terms of his band's Indian food fishing licence. He admitted the facts necessary to constitute the offence, but defended the charge on the basis that he was exercising an existing Aboriginal right to fish and that the net length restriction was inconsistent with s. 35(1) and therefore invalid.

[12] In convicting the appellant, the trial judge found that an Aboriginal right could not come under s. 35(1), unless it was supported by a special treaty. Therefore, in Mr. Sparrow's case, s. 35(1) had no application.

[13] The Supreme Court of Canada confirmed that s. 35(1) applies to all Aboriginal rights in existence in 1982 (when the Constitution Act came into effect), as the phrase "existing aboriginal rights" incorporates pre-treaty rights such as the right to fish for food and ceremonial purposes. Unless the Crown proves [page228] that a right has been extinguished, it continues to exist. Aboriginal rights can be restricted by the Crown, but only if that restriction can be justified using the two-part test now known as the Sparrow test.

The IEP

[14] In response to Sparrow (which was decided in 1990), the minister implemented the IEP. It has been in place in various versions since 1991. By its terms, the IEP applies

. . . to an aboriginal person harvesting wildlife or fish for personal consumption or social or ceremonial purposes in the area which was the subject of the treaty under which he or she is entitled to benefits. In addition, where First Nations have a tradition of harvest beyond the boundaries of such treaty areas or where treaties do not explicitly recognize traditional harvesting rights, this policy will apply within areas in which they have a tradition of such harvest.

[15] The current form of the IEP, which has been in place since February 2010, directs that the persons to which it applies shall not be subject to enforcement procedures, except as set out in the policy. This policy of non-enforcement is not applicable in the following circumstances:

(a) If the aboriginal person is hunting in an unsafe manner . . .

(b) Where wildlife or fish are taken for commercial purposes . . .

(c) Where wildlife or fish are taken in a manner that will put conservation objectives at risk . . .

(d) Where hunting or fishing occur on privately owned or occupied land . . . without the express permission of the owner or occupier.

The Howard decision

[16] In Howard, the appellant, a status Indian and a member of the WTFN, was convicted of unlawfully fishing during a prohibited period. During his trial, he raised s. 35(1) as a defence to the charge against him. The trial judge found that the 1923 Williams Treaties had extinguished the fishing rights held by the band in the area where the offence occurred. This finding was sustained by the Supreme Court of Canada. The following passage, at p. 307 S.C.R. of the decision, is central to the Supreme Court's conclusion:

In the absence of palpable and overriding error which affected the trial judge's assessment of the facts, an appellate court should not reverse the conclusions of the lower court. After carefully reviewing the factual record, I am of the view that there is no basis for overturning the result reached by the courts below. By the clear terms of the 1923 Treaty, the Hiawatha Band surrendered any remaining special rights to hunt and fish in the Otonabee River area.

(Emphasis added) [page229]

[17] OFAH was granted status to intervene at the Supreme Court in Howard.

The Alderville action in the Federal Court

[18] On January 24, 1992, the Alderville First Nations -- as part of the WTFN -- brought a civil suit against Her Majesty the Queen, who, in turn, third partied Her Majesty the Queen in Right of Ontario, seeking relief in relation to the Williams Treaties.

[19] The Alderville action came on for trial 20 years later, in May 2012.

[20] In a letter, dated October 30, 2012, the minister informed OFAH that Canada and Ontario were taking the position in the Alderville action that not all pre-existing treaty harvesting rights of the WTFN had been extinguished by the Williams Treaties. OFAH was also advised that, until that issue was decided by the Federal Court, the IEP would be applied in the Treaty area.

[21] After receiving this letter, OFAH sought leave to intervene in the Alderville action in order to bring a motion that the court stay or dismiss the entire action as res judicata, a collateral attack on Howard or an abuse of process. In a decision, issued on February 18, 2014 [Alderville Indian Band v. Canada, [2014] F.C.J. No. 857, 2014 FC 155], Mandamin J. denied OFAH's intervention request.

[22] In his reasons, Mandamin J. notes, at para. 5, as follows:

This action is a complex proceeding involving the historical evidence concerning the seven First Nations, the government of Canada and the government of Ontario. The historical and ethno-historical evidence relates to events and developments spanning almost two centuries. In addition to the evidence of the Plaintiff First Nations' community witnesses, evidence is to be tendered through 23 expert witnesses who have provided some 44 reports and replies, totalling over 4,300 pages, citing 7,500 documents from an archival database exceeding 20,000 productions. The trial was originally scheduled for 168 days.

[23] Further, at para. 9 of his decision, Mandamin J. makes the following comment about the WTFN's position regarding Howard:

Lastly, counsel for the Plaintiffs [in their opening statements at the commencement of the trial] alluded to the Supreme Court of Canada judgment in Howard, stating that the Supreme Court lacked the necessary ethno-historical evidence to properly pronounce on the 1923 Treaties. Counsel contrasted this with the increasingly fulsome historical records placed before the Courts, and growing understanding of First Nations circumstances and rights, as demonstrated by the jurisprudence. [page230]

[24] Justice Mandamin denied OFAH's intervention request for a number of reasons, including the fact that he did not find that OFAH and its members would be directly affected by the outcome of the litigation; OFAH was seeking to introduce a new issue into the litigation (namely, the issues of res judicata and abuse of process); the Federal Court had no jurisdiction to address decisions by Ontario about its enforcement policies on hunting and fishing in treaty areas; the issue of the fiduciary breach by the federal Crown in treaty making is being fully defended by the federal Crown and Ontario; OFAH did not file its motion to intervene until over a year after the trial had commenced; the motion would cause substantial prejudice to the WTFN "which have long strived to have the issues they have raised addressed by this Court" (para. 88) and the court was in a position to decide the case on its merits without OFAH.

[25] In this regard, Mandamin J. recognized [at para. 92] that "[a]t the heart of OFAH's motion to intervene is its interpretation of Howard" and its position that the Howard decision conclusively decided all of the matters at issue in the Alderville action. Justice Mandamin found that he did not need an intervenor to explain a Supreme Court of Canada decision, given that courts regularly interpret these decisions and he had the assistance of three able legal teams.

[26] OFAH brought a motion to extend the time for appealing Mandamin J.'s decision, which was opposed by WTFN who moved to strike OFAH's notice of appeal. In Ontario Federation of Anglers and Hunters v. Alderville Indian Band, 2014 FCA 145, [2014] F.C.J. No. 606, [2014] FCA 145, the Federal Court of Appeal denied OFAH's motion to extend and struck its notice of appeal. Leave to appeal this decision was denied by the Supreme Court of Canada in [2014] S.C.C.A. No. 344.

Is the minister estopped from raising some of the issues it is raising on its motion to strike because of an agreement with OFAH?

[27] When OFAH brought its motion to intervene in the Alderville action, counsel for Ontario advised OFAH of its position that the Federal Court had no jurisdiction over Ontario in relation to the IEP; only the Superior Court did. Thus, if OFAH chose to bring an application for judicial review in the Divisional Court, Ontario would not contest the jurisdiction of that court.

[28] OFAH maintains that this agreement precludes any argument based on jurisdiction in this motion to strike. I disagree. Reading the correspondence between counsel as a whole, it is clear that the only thing Ontario agreed to do was to not [page231] challenge the jurisdiction of the Divisional Court (as opposed to the Federal Court) to issue relief in the form of injunctive relief against the Provincial Crown, if and only if it was appropriate to do so.

The test on a motion to quash

[29] A single judge of the Divisional Court may quash or dismiss an application for judicial review if it is devoid of merit. The test on such a motion is the same as the test on a motion to dismiss an action under rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194 -- namely, is it plain and obvious that the application is devoid of merit and cannot succeed: see Dolan v. Ontario (Civilian Commission on Police Services), [2011] O.J. No. 1028, 2011 ONSC 1376, 277 O.A.C. 109 (Div. Ct.).

Is it plain and obvious that OFAH's application for judicial review is devoid of merit?

[30] OFAH's application for judicial review seeks the following relief:

(a) A declaration that the decision of the (minister) to apply the ministry's Interim Enforcement Policy, as it applies to the geographical boundaries of the 1923 Williams Treaties and the signatories to the Williams Treaties, constitutes an impermissible exercise of dispensing power by the Crown and as such the dispensation is void and of no effect.

(b) In the alternative, a declaration that the decision of the respondent minister to apply the ministry's IEP as it applies to the geographical boundaries of the 1923 Williams Treaties and the signatories to the 1923 Williams Treaties, is invalid and of no force and effect.

(c) A declaration that until such time that the Supreme Court of Canada reverses its decision in R. v. Howard, supra . . . or that Howard is set aside by a court of competent jurisdiction in accordance with the decisions of the Supreme Court of Canada in Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, [2015] S.C.J. No. 5 and Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, [2013] S.C.J. No. 72, the court's finding in Howard that the signatories to the 1923 Williams Treaties surrendered all of their s. 35 constitutional and treaty rights to land, and rights to hunt and fish in the Province of Ontario is affirmed, thereby rendering the impugned decision of the minister null and void and of no force and effect. [page232]

(d) A declaration that the Minister of Natural Resources and Forestry has a legal duty and responsibility to respect the ruling of the Supreme Court of Canada in Howard, and in accordance with the doctrine of stare decisis and the rule of law, instruct his enforcement officers . . . to enforce all fishing and hunting laws equally within the geographical boundaries of the 1923 Williams Treaties to all persons in Ontario without discrimination, differential treatment or priority and without any consideration of the IEP.

(e) An order granting (OFAH) public interest standing to challenge the IEP, including to challenge the IEP on the basis that it is contrary to s. 15 of the Charter.

(f) A declaration that the IEP is contrary to s. 15 of the Charter entitling the applicant to a remedy under s. 24 thereof.

[31] Thus, as part of its relief, OFAH seeks declarations concerning the validity of an enforcement policy of the Crown.

[32] In Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372, [2002] S.C.J. No. 45, 2002 SCC 65, at para. 3, the Supreme Court of Canada confirmed that the exercise of prosecutorial discretion is only reviewable by the courts in cases of flagrant impropriety or abuse of process:

It is a constitutional principle that the Attorneys General of this country must act independently of partisan concerns when exercising their delegated sovereign authority to initiate, continue or terminate prosecutions. So long as they are made honestly and in good faith, prosecutorial decisions related to this authority are protected by the doctrine of prosecutorial discretion.

[33] As explained by the court, this doctrine stems from a respect for the separation of powers. Courts are not to become supervising prosecutors; they must remain independent of prosecutorial decisions. That is, under this doctrine, criminal prosecutions are the "domain of the executive" (para. 31, quoting R. v. Power, [1994] 1 S.C.R. 601, [1994] S.C.J. No. 29, p. 621 S.C.R.).

[34] Further, as set out in para. 32:

The court's acknowledgment of the Attorney General's independence from judicial review in the sphere of prosecutorial discretion has its strongest source in the fundamental principle of the rule of law under our Constitution. Subject to the abuse of process doctrine, supervising one litigant's decision-making process -- rather than the conduct of the litigants before the court -- is beyond the reach of the court. In Re Hoem and Law Society of British Columbia (1985), 20 C.C.C. (3d) 239 (B.C.C.A.), Esson J.A. for the court observed, at p. 254, that:

The independence of the Attorney-General, in deciding fairly who should be prosecuted, is also a hallmark of a free society. Just as the [page233] independence of the bar within its proper sphere must be respected, so must the independence of the Attorney-General.

We agree with these comments. The quasi-judicial function of the Attorney-General cannot be subject to interference from parties who are not competent to consider the various factors involved in making a decision to prosecute. To subject such decisions to political interference, or to judicial supervision, could erode the integrity of our system of prosecution. Clearly drawn constitutional lines are necessary in areas subject to such grave potential conflict.

(Emphasis added)

[35] In Perry v. Ontario (1997), 33 O.R. (3d) 705, [1997] O.J. No. 2314 (C.A.), the Court of Appeal for Ontario considered the nature of a previous version of the IEP and determined, at p. 722 O.R.,

. . . that the IEP is no more than a ministerial guideline directed to conservation officers and other officials in the Ministry of Natural Resources, advising them of the ministry's interpretation of s. 35(1) of the Constitution Act, 1982. We agree with the submission of Ontario that the IEP was not a law or determination of the legal rights of any person in relation to hunting and fishing. In our view, it was no more than much needed advice to those responsible for law enforcement on the existence of some aboriginal rights to the extent that they had been determined as of that date.

[36] In R. v. Donio, [2001] O.J. No. 1371, [2001] O.T.C. 252 (S.C.J.), the Superior Court of Justice considered the application of a Crown protocol for prosecuting offences against Aboriginal peoples and noted that the protocol was "a pre-charge matter wholly within the discretion of the prosecutor . . ." and should therefore not be interfered by the court (para. 9).

[37] The protection of prosecutorial discretion applies equally to the decision to initiate or to refrain from proceeding with a prosecution: see Zhang v. Canada (Attorney General), [2007] F.C.J. No. 736, 2007 FCA 201, 61 Admin. L.R. (4th) 99, leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 411.

[38] In essence, OFAH's position on this application for judicial review is that in choosing to apply the IEP to the lands covered by the 1923 Williams Treaties in the face of the Howard decision, the ministry is abusing its prosecutorial discretion by choosing to ignore the law of the land. According to OFAH, the minister is not free to ignore the rulings of the Supreme Court of Canada just because they may believe the foundations of that ruling are invalid. To allow them to do so would lead to anarchy in the form of a total disregard of the rule of law.

[39] In support of their position, OFAH relies on two cases -- Carter v. Canada (Attorney General), supra, and R. v. Catagas, [1977] M.J. No. 73, 81 D.L.R. (3d) 396 (C.A.). [page234]

[40] In Carter, the Supreme Court of Canada considered the question of whether lower courts must be bound by prior decisions of the Supreme Court of Canada when the adjudicative facts before them are similar to those before the Supreme Court. The court acknowledged, at para. 44, that "[t]he doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system". However, it went on to find

. . . stare decisis is not a straightjacket that condemns the law to stasis. Trial courts may reconsider settled ruling of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that "fundamentally shifts the parameters of the debate"[.]

[41] Carter is a decision that the Federal Court may have to consider in the Alderville action. It has no application to the exercise of the minister's prosecutorial discretion to apply the IEP to the land that is the subject of the Alderville action. Carter may inform the exercise of that discretion in that Carter acknowledges that the settled rulings of higher courts may change in the face of new issues and evidence that [at para. 44] "fundamentally shifts the parameters of the debate". In the Alderville action, the Federal Court will be considering issues that were not raised in Howard and hearing evidence that was never considered in Howard. In Howard, the Supreme Court was clear that its decision was informed by the factual record before the trial judge.

[42] Furthermore, unlike in Howard, the parties to the Alderville action are the very parties who negotiated the 1923 Williams Treaties.

[43] The question becomes whether Ontario, as one of the parties to the Alderville action, may adopt a position that may conflict with Howard, if it decides on the basis of the evidence that it has reviewed for that action that this is the appropriate position at law? Furthermore, once it does so, is it allowed to exercise its prosecutorial discretion in a manner that is consistent with its revised appreciation of the issues?

[44] According to OFAH, Ontario has no choice but to act consistently with Howard until a court decides that Howard is no longer good law. To do otherwise would constitute the kind of dispensing power that the Manitoba Court of Appeal refused to tolerate in Catagas.

[45] In Catagas, the Manitoba Court of Appeal discussed the fact that the Crown has no right to suspend laws or the execution of laws without the consent of the legislature and, if they do so, those dispensations are void and of no force and effect. The principle emerges from a much earlier period where, as part of [page235] its Royal prerogative, the Crown (in the form of the King or Queen) would suspend some laws and dispense with obedience to others on its own initiative. This, in turn, led to a struggle between the Crown and Parliament, a struggle which, as the Manitoba Court of Appeal noted, Parliament ultimately won.

[46] The situation before the Court in Catagas was one where, a few weeks after the Supreme Court of Canada reached a decision that had the effect of finding that Aboriginal people had no right to hunt and capture game birds out of season, a senior official at the Department of Mines and Natural Resources for Manitoba announced to field staff that he was adopting a policy "whose avowed object was to overcome and negate" the Supreme Court of Canada's decision (para. 9). As a result, the policy ordered that Aboriginal people who were hunting for ducks and geese at certain times and in certain circumstances would have no charges laid against them.

[47] When an Aboriginal person (Mr. Catagas) was charged with behaviour that fell within the policy, he invoked the policy as a defence. The Manitoba Court of Appeal found that the enactment of the policy in favour of a group, such as treaty Indians, was an unlawful exercise of the Crown's dispensing power and, therefore, void. As a result, the accused's defence did not succeed and he was found guilty.

[48] In reaching the decision they did, the Manitoba Court of Appeal said the following, at para. 14:

The other point is that nothing here stated is intended to curtail or affect the matter of prosecutorial discretion . . . But in all these instances the prosecutorial discretion is exercised in relation to a specific case. It is the particular facts of a given case that call the discretion into play. But that is a far different thing from the granting of a blanket dispensation in favour of a particular group or race. Today the dispensing power may be exercised in favour of Indians. Tomorrow it may be exercised in favour of Protestants, and the next day in favour of Jews. Our laws can not be so treated. The Crown may not by executive action dispense with laws.

[49] From this quote, it is clear that a driving concern of the court in Catagas was the use of the executive power to make exceptions for groups of people based on their race, religion or ethnicity. It is important to note that Catagas was decided before the enactment of the Charter and, in particular, s. 15 thereof. Section 15(2) specifically contemplates government programs and activities that may favour one racial or ethnic group over another, provided that the program or activity "has as its object the amelioration of conditions of disadvantaged individuals or groups". There can be no argument that the persons to whom the IEP is directed are members of a disadvantaged group and that the policy acts to ameliorate that disadvantage. [page236]

[50] In Catagas, the court was also offended by what it perceived to be an administrative effort by the executive to resist applying a recent decision of the Supreme Court of Canada. In this case, the IEP was implemented for the express purpose of responding to the decision of the Supreme Court in Sparrow. Unlike the policy in Catagas, the IEP does not instruct conservation officers to dispense with the law when dealing with Aboriginal persons. As put by the Ontario Court of Appeal in Perry, it is a ministerial guideline that provides enforcement officers with "much-needed advice" on how to deal with Aboriginal rights.

[51] Finally, it is important to note that the Manitoba Court of Appeal made it clear that nothing in its decision was meant to "curtail or affect the matter of prosecutorial discretion" (para. 14). In fact, the effect of the Catagas decision was to uphold the exercise of the discretion of the prosecutor who decided to charge and proceed against the accused in that case.

[52] For these reasons, I find that it is plain and obvious that OFAH's application for judicial review seeks to have the court rule on the exercise of prosecutorial discretion, something that is not judiciable.

[53] To the extent that OFAH's application seeks to challenge the exercise of that prosecutorial discretion on the basis that it somehow constitutes an abuse of process, it is also plain and obvious that that challenge cannot succeed. In R. v. Anderson, [2014] 2 S.C.R. 167, [2014] S.C.J. No. 41, 2014 SCC 41, the Supreme Court of Canada addressed the threshold that must be reached in order for a court to encroach on the exercise of prosecutorial discretion. In doing so, the court cited terms such as "flagrant impropriety" that "undermines the integrity of the judicial process" (para. 49), and, at para. 50, stated:

Regardless of the precise language used, the key point is this: abuse of process refers to Crown conduct that is egregious and seriously compromises trial fairness and/or the integrity of the justice system. Crown decision motivated by prejudice against Aboriginal persons would certainly meet this standard.

[54] Howard was a case that involved treaty interpretation. According to the Supreme Court in Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, [2013] S.C.J. No. 14, at para. 73: "[t]he honour of the Crown requires the Crown to act in a way that accomplishes the intended purposes of treaty and statutory grants to Aboriginal peoples . . .".

[55] The continuing process of defining and searching for the intended purposes of the Williams Treaties has led the Attorneys General of Canada and Ontario to take the position, and to plead, that the clause at issue in Howard (the so-called "basket [page237] clause") was not intended to extinguish all pre-existing treaty harvesting rights of the WTFN, particularly in the Treaty 20 area where the IEP has been applied. These are clearly matters for the Attorneys General to address; they are matters that involve the Honour of the Crown; they are not decisions that are within the purview of the court.

[56] The minister's decision to extend the IEP in accordance with the Attorney General's advice, and pleadings in the Federal Court action, is a decision that cannot be seen as "egregious" or as seriously compromising the integrity of the justice system. Thus, it is plain and obvious that the minister's decision does not constitute the type of abuse of process that would justify the court's encroaching on the exercise of its prosecutorial discretion.

[57] One of the declarations that OFAH seeks is a declaration that requires the Divisional Court to pronounce on the effect of the decision in Howard. This is clearly a matter that is being adjudicated in the Federal Court. When OFAH asked to intervene in that action on the basis that it could assist the court in interpreting Howard, the Federal Court was quite clear that it did not require that assistance. OFAH is now indirectly seeking the relief that the Federal Court said it did not require, but this time it seeks to do it through the involvement of the Divisional Court. It is plain and obvious that this raises the spectre of inconsistent findings, one of the driving policy reasons behind s. 138 of the Courts of Justice Act, R.S.O. 1990, c. C.43, which stipulates that "[a]s far as possible, multiplicity of proceedings shall be avoided".

[58] The last set of declarations that the applicants and, in particular, Mr. Lombardo, seek are declarations based on the allegation that the IEP constitutes race-based discrimination contrary to s. 15(1) of the Charter.

[59] As the Supreme Court of Canada stated in Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548, [2015] S.C.J. No. 30, at para. 18:

The focus of s. 15 is therefor on laws that draw discriminatory distinctions -- that is, distinctions that have the effect of perpetuating arbitrary disadvantage based on an individual's membership in an enumerated or analogous group. The s. 15(1) analysis is accordingly concerned with the social and economic context in which a claim of inequality arises, and with the effect of the challenged law or action on the claimant group.

(Cites omitted; emphasis in original)

[60] As the analysis under s. 15(1) turns on the effects of the challenged law or action, it is plain and obvious that neither the IEP, nor the minister's decision to apply it to the WTFN, has any effect on Mr. Lombardo at all. It does not alter his rights, impose [page238] any burden on him, require him to do or refrain from doing anything, or expose him to any legal consequences. If there is a benefit to the WTFN, who are Aboriginal people, that is not a denial to anyone who could never be entitled to the benefit in the first place.

[61] In Perry, the Ontario Court of Appeal overturned a Superior Court decision finding that the IEP, as it existed in 1997, was discriminatory contrary to s. 15.

[62] Thus, it is plain and obvious that Mr. Lombardo's claim to the protection of s. 15(1) cannot succeed.

[63] As already alluded to, it is also plain and obvious that the application of the IEP in Treaty 20 is a "program or activity" that would meet the test under s. 15(2) of the Charter. Section 15(2) provides:

15(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[64] In R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, [2008] S.C.J. No. 42, the Supreme Court dealt with a challenge to a federal program designed to foster Aboriginal participation in commercial fishing by granting exclusive access to a salmon fishery for 24 hours to only those individuals designated by Aboriginal organizations. The program was not required by s. 35 of the Constitution Act, 1982, as no Aboriginal right to commercial fishing had been recognized. Non-Aboriginal commercial fishers who fished during the prohibited time were prosecuted and argued that the preferential access to Aboriginal fishers was racial discrimination contrary to s. 15(1).

[65] The court dismissed the s. 15(1) claim on the basis that the preferential fishing rights were an ameliorative program, as contemplated by s. 15(2) of the Charter. It was found to have an ameliorative or remedial purpose and to be targeted at a disadvantaged group. It is plain and obvious that the same reasoning applies to the application of the IEP in Treaty 20.

Conclusion

[66] For these reasons, the application for judicial review is quashed. There is no need to deal with the other arguments raised by the parties in support of the motion to quash. As agreed by the parties, OFAH shall pay costs to the minister and the WTFN, each in the amount of $10,000, for a total costs award of $20,000.

Motion granted.

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