COURT FILE NOS.: CR-19-16 (Parry Sound); CR-19-020 (Parry Sound); CR-21-08 (Parry Sound); CR-19-1190 (Peterborough); CR-20-1353 (Peterborough); CR-20-8332 (Sault Ste. Marie); CR-21-1202 (Sudbury); CR-21-1203 (Sudbury); CR-22-12570MO (Sudbury) DATE: 2022-03-31 CORRECTION DATE: April 7, 2022

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Applicant – and – David Brennan, Sarah McQuabbie, Harley Hill, Clayton Hill, Chadwick McGregor, Michael Nolan, Dennis Wigmore, Derek Roque, Noble Boucher & Luke Klink Accused/Respondents

Counsel: J. Plamondon / B. Bencze / A. Francis / A. Hauk, for the Crown/Applicant M. Swinwood, for the Accused/Respondents

HEARD via Zoom: February 24, 2022

CORRECTED DECISION ON APPLICATION

Correction to Decision: Counsel for Applicant corrected on first page.

BOUCHER J.

Introduction

[1] The respondents, all of whom are Indigenous, are charged with various cannabis offences. Although their cases started in different communities and judicial regions, they have been combined into this proceeding. I am scheduled to preside over the 3-week trial of this matter starting in June of this year.

[2] As part of this proceeding, the respondents filed a Notice of Constitutional Question and an Addendum to the NCQ (the “NCQs”).

[3] On February 24, 2022, I heard submissions on the Crown’s application for summary dismissal of the respondents’ NCQs. [^1]

Background

[4] Except for Sarah McQuabbie, the respondents are alleged to be the owners or employees of unlicensed cannabis dispensaries. Agreed Statements of Fact (ASF) with respect to each indictment have been signed by counsel for the applicant and counsel for the respondents and filed with the court. The ASF establish the case for the Crown on each indictment, subject to determination of the NCQs.

[5] The respondents claim to be members of a First Nation – the Amikwa – that is not recognized. They argue they are not subject to cannabis laws because they have not ceded their territory to Canada and because they have a traditional right to use and trade cannabis and hemp.

[6] This proceeding has been extensively case-managed by Ellies RSJ over the past two years. Part of that work resulted in a narrowing of the NCQs to five questions for the court’s determination, which are as follows:

Under ss. 25 and 27 of the Charter

1. Whether the laws under which the charges have been brought do not apply because the lands on which the offences occurred are not part of Canada.

Under s. 35 of the Charter

2. Whether the laws under which the charges have been brought do not apply because they infringe the accused persons’ traditional use and trade of cannabis and hemp.

Under s. 7 of the Charter

3. Whether the laws under which the charges have been brought do not apply because they interfere with the accused persons’ economic well-being in relation to the trade of cannabis and hemp.

4. Whether the laws under which the charges have been brought do not apply because they are part of an effort at genocide and apartheid.

Under the Duty to Consult

5. Whether the prosecution(s) should be stayed because the accused persons have asserted a declaration of Indigenous title to the land on which the offences occurred, and the Crown has failed since then to fulfil its duty to consult.

[7] The case management also dealt with the establishment of timelines regarding the respondents’ delivery of expert reports.

[8] Briefly stated, due to heath issues in his family, there were unexpected delays with respect to the preparation of Dr. Harring’s report (regarding the existence of the Amikwa Nation). It was provided on April 15, 2021, some 17 months after the Crown raised the issue of the report.

[9] Around the same time, counsel for the respondents first raised the issue of retaining experts in relation to the historical use of cannabis. Names of these experts were shared with the applicant.

[10] In May 2021, in different proceedings Lainevool J. declined to qualify Dr. Harring as an expert in relation to the existence of the Amikwa Nation. At the May 19, 2021, judicial pretrial with Ellies RSJ, counsel for the respondents advised they wished to retain a new expert in relation to the history of the Amikwa Nation. On July 30, 2021, counsel for the respondents advised the new report would be available by November 15, 2021. At the time of the hearing of this application the report was not available, though the respondents believe it will be ready by April 15, 2022. Neither a report nor a timeline has been provided with respect to the expert report concerning the use and trade in cannabis.

Issues

[11] The Crown’s application raises the following issues to be determined:

a. When is summary dismissal appropriate? and b. Should any of the NCQs be summarily dismissed?

When is summary dismissal appropriate?

[12] Rule 34.02 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) provides as follows:

The presiding judge may conduct a preliminary assessment of the merits of any pre-trial or other application on the basis of the materials filed, and, if satisfied that there is no reasonable prospect that the application could succeed, may dismiss the application without further hearing or inquiry.

[13] In R. v. Cody, 2017 SCC 31 the Supreme Court of Canada highlighted the critical role trial judges play in preventing unnecessary delay. The court reasoned that trial judges should screen applications and summarily dismiss those that have no reasonable prospect of success or that are frivolous (para 38). The court also encouraged counsel to bring this screening function to the court’s attention where appropriate (para 39).

[14] In R. v. Greer, 2020 ONCA 795 at paras 107-108 the Ontario Court of Appeal confirmed the trial management power of judges to summarily dismiss Charter applications when defence counsel have failed to comply with notice requirements and/or when there is a patent lack of merit to the application.

[15] In R. v. Kazman, 2020 ONCA 22 the Ontario Court of Appeal commented on this trial management power in the context of constitutional challenges. At paras 15 and 16 the court held:

[15] The power to dismiss motions summarily, especially motions involving constitutional claims, must be exercised cautiously. Motions that advance constitutional claims should be addressed on their merits unless the broader interests of justice clearly demand otherwise: R. v. Loveman (1992), 8 O.R. (3d) 51, at pp. 55-56 (C.A.). In deciding whether to dismiss a motion summarily, the trial judge must have regard to the interests of the accused. The trial judge’s focus cannot, however, be limited to the narrow specifics of the particular case. The trial judge must consider broader administration of justice concerns, including the need to conduct all litigation, including criminal litigation, in a fair, orderly, and efficient manner. It falls to trial judges to decide where the interests of justice lie in each specific case.

[16] The broader administration of justice concerns were placed front and centre in the powerful reasons of the majority in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at paras. 137-141. Speaking specifically about the constitutional right to a trial within a reasonable time and the litigation that claims based on that right have spawned, Moldaver J. for the majority stressed that all participants in criminal litigation have a joint obligation to work co-operatively to effectively use limited available resources in order to bring cases to completion within a reasonable time: see also R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 1. No one, including self-represented accused, can be allowed to ignore court orders and deadlines while the constitutional clock runs down and valuable court resources are consumed. After Jordan, trial judges must engage in proactive case management of criminal trials. Litigants must cooperate in those case management efforts. Appellate courts must support those proactive steps by showing strong deference to case management decisions: Jordan, at paras. 138-139.

[16] In Beaver v. Hill, 2018 ONCA 816 the Court of Appeal addressed the propriety of using the court’s summary dismissal power on claims of alleged Aboriginal or treaty rights protected by s. 35 of the Constitution Act, 1982. In that case, Mr. Hill sought to have his family law dispute resolved through “Haudenosaunee governance processes and protocols and according to Haudenosaunee laws” (para 2). His claim was dismissed by the motions judge. Lauwers J.A. set out the following principles starting at para 28:

[28] I pick out five relevant principles from the jurisprudence. First, courts have been instructed to keep in mind the basic purpose of s. 35(1) of the Constitution Act, 1982, which is “the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown”: per Lamer C.J. in R. v. Van der Peet, [1996] 2 S.C.R. 507 at para. 31, see also Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, at para. 186, and Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 17. Proceedings in this area call for “a measure of flexibility not always present” in ordinary litigation: Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56, [2011] 3 S.C.R. 535, at para. 46.

[29] Second, because we are still feeling our way in this delicate area, courts should avoid making definitive pronouncements where a case is in the early stages and where the applicable law is yet in the early stage of development: Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227, at paras. 32 and 35.

[30] Such caution is consistent with the decision in Lax Kw’alaams Indian Band. Binnie J. noted, at para. 11, that Aboriginal and treaty claims are complex. They are best suited to civil actions for declaratory relief, where there are pleadings, pre-trial discovery and “procedural advantages afforded by the civil rules of practice to facilitate a full hearing of all relevant issues.” He added an important caution:

Such potential advantages are dissipated, however, if the ordinary rules governing civil litigation, including the rules of pleading, are not respected. It would not be in the public interest to permit a civil trial to lapse into a sort of free-ranging general inquiry into the practices and customs of pre-contact Aboriginal peoples from which, at the end of the day, the trial judge would be expected to put together a report on what Aboriginal rights might, if properly raised in the pleadings, have been established.

The pleadings play an important role in defining the issues.

[31] Third, Binnie J. concluded his observations in Lax Kw’alaams Indian Band with a clear direction, at para. 12: “The existence and scope of Aboriginal rights protected as they are under s. 35(1) of the Constitution Act, 1982, must be determined after a full hearing that is fair to all the stakeholders.” This direction should give courts some pause before employing summary processes such as pleadings motions to dismiss claims involving Aboriginal and treaty rights.

[32] Fourth, the four-stage structure for analyzing s. 35(1) claims was set out by the Supreme Court in Lax Kw’alaams Indian Band, at para. 46. The decision built on the framework initiated in R. v. Sparrow, [1990] 1 S.C.R. 1075 and developed further in Van der Peet. This structure would apply with necessary modifications to Mr. Hill:

First, at the characterization stage, identify the precise nature of the First Nation's claim to an Aboriginal right based on the pleadings. If necessary, in light of the evidence, refine the characterization of the right claimed on terms that are fair to all parties.

Second, determine whether the First Nation has proved, based on the evidence adduced at trial:

(a) the existence of the pre-contact practice, tradition or custom advanced in the pleadings as supporting the claimed right; and

(b) that this practice was integral to the distinctive pre-contact Aboriginal society.

Third, determine whether the claimed modern right has a reasonable degree of continuity with the "integral" pre-contact practice. In other words, is the claimed modern right demonstrably connected to, and reasonably regarded as a continuation of, the pre-contact practice? At this step, the court should take a generous though realistic approach to matching pre-contact practices to the claimed modern right. As will be discussed, the pre-contact practices must engage the essential elements of the modern right, though of course the two need not be exactly the same.

[33] The fourth stage is to consider whether any infringement of the right established on the evidence could be justified.

[34] Finally, how the individual and collective aspects of Aboriginal and treaty rights are to be reconciled practically in live litigation like this case is an unresolved issue.

[17] Lauwers J.A. found that the evidentiary record before the motions judge was insufficient to allow a proper determination of whether the s.35 Constitution Act, 1982 claim should be dismissed. He accordingly set aside the dismissal. He noted the issue could be determined when the “pleadings have been improved and the evidence has been adequately developed” (at para 69).

Should any of the following NCQs be summarily dismissed?

I. Whether the laws under which the charges have been brought do not apply because the lands on which the offences occurred are not part of Canada.

Analysis

[18] This question relates to the interpretation of ss. 25 and 27 of the Charter which read as follows:

25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including:

a. any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and

b. any rights or freedoms that now exist by way of land claims agreements or may be so acquired.

27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

[19] The Crown submits this argument is not justiciable for several reasons.

[20] First, in R. v. Sparrow, [1990] 1 SCR 1075 at para. 49 the Supreme Court held as follows:

It is worth recalling that while British policy towards the native population was based on respect for their right to occupy their traditional lands, a proposition to which the Royal Proclamation of 1763 bears witness, there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the Crown: see Johnson v. McIntosh (1823), 21 U.S. (8 Wheat.) 543 (S.C.); see also the Royal Proclamation itself (R.S.C. 1985, App. II, No. 1, pp. 4-6); Calder, supra, per Judson J. at p. 328, Hall J. at pp. 383, 402.

[21] This legislative authority and sovereignty are unaffected by the existence of treaties (see for example R. v. David 2000 CarswellOnt 540 (ONSC) at para 16).

[22] Second, courts do not have the authority to adjudicate upon challenges to Canadian sovereignty (see for example R. v. ri: wi: io v. Canada (Attorney General), 2007 ONCA 10; R. v. David at para 17; R. v. Francis 2007 CarswellOnt 1548 (ONSC) at paras 9-10).

[23] Third, the Crown argues s. 25 of the Charter does not exempt Aboriginal people from compliance with the law but rather acts to shield “the treaty and other rights of Aboriginal people from interference from other Charter provisions” (see R. v. David at para 11; R. v. Agawa 1988 CarswellOnt 799 (ONSC) at para 11).

[24] Fourth, the Crown submits these arguments have been unsuccessfully made by counsel for the respondents in several other cases in Canadian courts (see Yellowhorn v. Alberta, 2006 ABQB 307 at para 50; R. v. Francis at para 17). In R. v. Fournier 2006 CarswellOnt 3701 (ONCA) the Court of Appeal was asked to rule on the propriety of the trial judge’s funding order and order for costs against the Crown regarding the funding application. The accused in that case were charged with fraud for having issued status cards. They challenged the court’s jurisdiction to prosecute them due to their Aboriginal heritage. The court set aside the orders due to the accused’s failure to first seek coverage from Legal Aid Ontario. The court noted the following at para 10:

In making his funding order, the trial judge briefly assessed the underlying merits of the case. Although we have serious doubts as to whether the trial judge was correct in this assessment and we note that he did not carry out a detailed legal analysis of the issues as was done in the decision in R. v. Yellowhorn, [2006] A. J. No. 491, we need not deal with this aspect of his decision in light of the conclusion we have reached on the procedure that ought to have been followed.

[25] The respondents argue this question is not about sovereignty but rather jurisdiction. They submit their land was never set aside as reserve land and was in fact protected as their own in the Rowan Proclamation of 1854. They suggest their territory was never ceded to Canada, and they are not subject to Canadian law.

[26] Further, they argue that in Yellowhorn, Francis and Fournier the accused took the position that Canadian law was subject to international law. Since those cases were argued, Canada adopted the United Nations Declaration on the Rights of Indigenous Peoples (the United Nations Declaration on the Rights of Indigenous Peoples Act received Royal Assent on June 21, 2021). While the UNDRIP establishes human rights and promotes both Indigenous cultures and reconciliation, it does not remove Canada’s sovereign and legislative authority. Nor does the Rowan Proclamation. The Supreme Court’s ruling in Sparrow discussed above is unaltered and remains binding.

[27] I also reject the jurisdiction vs. sovereignty position taken by the respondents. It amounts to the same argument, which cannot be successful in light of Sparrow.

[28] Applying the principles discussed above, I find this question not only does not have a reasonable prospect of success – I would go as far as saying it cannot succeed. I also lack the jurisdiction to determine questions of Canadian sovereignty. Indeed, this very question has been unsuccessfully litigated by counsel for the respondents in several other cases. I am accordingly exercising my case management power to summarily dismiss this question.

II. Whether the laws under which the charges have been brought do not apply because they interfere with the accused persons’ economic well-being in relation to the trade of cannabis and hemp.

III. Whether the laws under which the charges have been brought do not apply because they are part of an effort at genocide and apartheid.

Analysis

[29] These questions are concerned with s. 7 of the Charter which provides as follows:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[30] With respect to genocide and apartheid, the Crown argues the respondents’ position is that Canada has lost its jurisdiction over them because it has been complicit in genocide against Indigenous peoples. The Crown submits these arguments are not justiciable and have unsuccessfully been argued by counsel for the respondents in the past.

[31] In R. v. Francis the court found that this argument “presents essentially non justiciable issues and calling evidence on those issues will be of no assistance to the court and will result in significant unnecessary cost and delay” (at para 12). In Yellowhorn the court noted this argument had been rejected in previous cases and was without merit (at para 26).

[32] The respondents argue that principles of international law apply to Canadian law. They submit the law has changed since these arguments were previously rejected by Canadian courts. They take the position that their Nations’ life, liberty and security of the person has been taken away by genocide and apartheid, resulting in economic depravation and poverty. In their factum they argue at para 37 that these “issues can only be explored through the exposure of the acts of genocide and apartheid.”

[33] They cite the Supreme Court of Canada decision in Nevsun Resources Ltd. v. Araya, 2020 SCC 5 as authority for the position that Canadian courts must adopt an international perspective on human rights. They further argue Canada’s adoption of the UNDRIP has solidified this position.

[34] Nevsun Resources dealt with a proceeding brought in British Columbia by three Eritrean workers who claimed they were conscripted by the military into forced labour in a Canadian-owned mine. The workers sought, among other things, damages for breaches of international customary law.

[35] The following portion of the headnote of the decision sets out the question that was before the Supreme Court:

Nevsun has not demonstrated that the Eritrean workers’ claim based on breaches of customary international law should be struck at this preliminary stage. The Court is not required to determine definitively whether the Eritrean workers should be awarded damages for the alleged breaches of customary international law. It is enough to conclude that the breaches of customary international law, or jus cogens, relied on by the Eritrean workers may well apply to Nevsun. Since the customary international law norms raised by the Eritrean workers form part of the Canadian common law, and since Nevsun is a company bound by Canadian law, the claims of the Eritrean workers for breaches of customary international law should be allowed to proceed.

[36] With respect, I do not find that Nevsun Resources speaks to the issue that has been raised by this question. That case dealt with whether the workers’ claims against a Canadian company for harms allegedly suffered in a foreign country should be allowed to proceed in Canada. The Supreme Court was not asked to determine if allegations of genocide committed by Canada could negative the applicability of Canadian law to the claimants. For reasons already discussed, I also do not find the adoption of the UNDRIP has changed the legal landscape on this question. I agree with the previous decisions that found this argument is without merit and does not have a reasonable chance of success. I accordingly summarily dismiss this question.

[37] With respect to the other question under this heading, the Crown argues s. 7 does not protect economic activity. In R. v. Edwards Books and Art Ltd., [1986] 2 SCR 713 the Supreme Court held that this section does not protect an individual’s “unconstrained right to transact business wherever one wishes” (at para 154). Further, in Siemens v. Manitoba (Attorney General), 2003 SCC 3, [2003] 1 SCR 6 the Supreme Court held that “The right to life, liberty and security of the person encompasses fundamental life choices, not pure economic interests” and “the ability to generate business revenue by one’s chosen means is not a right that is protected under s. 7 of the Charter” (at paras 45-46). Finally, in R. v. Malmo-Levine, 2003 SCC 74 the Supreme Court found that the selling of cannabis is not protected by s. 7 of the Charter (at paras 86 and 88).

[38] I was unable to find submissions specifically on point on this question in the respondents’ factum - it was only listed as one of the questions in their factum. It was not pursued in argument. I agree with the Crown’s submissions that the Supreme Court has held on several occasions that this section does not protect the economic interests advanced by the respondents. There being no reasonable prospect of success, I must accordingly summarily dismiss this question.

IV. Whether the prosecution(s) should be stayed because the accused persons have asserted a declaration of Indigenous title to the land on which the offences occurred, and the Crown has failed since then to fulfil its duty to consult.

Analysis

[39] The Supreme Court held in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 at para 35 that the duty to consult is engaged when the Crown “has knowledge, real or constructive, of the potential existence of the aboriginal right or title and contemplates conduct that might adversely affect it.” The court confirmed this principle in Behn v. Moulton Contracting Ltd., 2013 SCC 26 at para 29.

[40] The Crown submits the respondents do not have standing to raise this argument. In Behn the Supreme Court held at paras 30 and 31 that the duty to consult exists to protect the collective rights of Aboriginal peoples. An Aboriginal group can authorize individuals or an organization to advance the rights of the group. In the present case, the Crown argues there is no evidence this has happened, or for that matter that the Amikwa Nation exists. In fact, with respect to Boucher and Brennan, the Band Councils with jurisdiction over the lands where the offences are alleged to have occurred opposed the operation of the dispensaries and made this known to the respondents.

[41] The Crown also suggests the duty to consult does not extend to the enactment of legislation, and thus cannot apply to a criminal prosecution pursuant to that legislation. The Supreme Court recently clarified that the exercise of legislative authority (not executive authority) in and of itself does not trigger the duty to consult (Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40 at para 50).

[42] Finally, the Crown argues that even if there was a breach of the duty to consult, the remedy of a stay of proceedings is not available to the respondents. In Rio Tinto v. Carrier Sekani Tribal Council, 2010 SCC 43 the Supreme Court held as follows at para 37:

The remedy for a breach of the duty to consult also varies with the situation. The Crown’s failure to consult can lead to a number of remedies ranging from injunctive relief against the threatening activity altogether, to damages, to an order to carry out the consultation prior to proceeding further with the proposed government conduct: Haida Nation, at paras. 13-14.

[43] The respondents argue the question cannot simply be answered by asserting the duty to consult does not apply to criminal prosecutions. They suggest it is deeper than that and is triggered by the unilateral imposition on them of the common law. The issue at hand is concerned with the territory and the people within it. The Supreme Court of Canada held in Guerin v. R, [1984] 2 SCR 335 at para 80 “The conclusions that the Crown is a fiduciary depends upon the further proposition that the Indian interest in the land is inalienable except upon surrender to the Crown.”

[44] The problem with this argument is that the ratio in Guerin does not answer the first two arguments made by the Crown. I am bound by the Supreme Court decisions that deal with standing and the legislative process. These respondents do not have the authority to advance the duty to consult argument on behalf of the Amikwa Nation. The only evidence with respect to this issue is in fact the opposite in the cases of Boucher and Brennan. In addition, the duty to consult does not extend to the enactment of the subject legislation that criminalizes their conduct. They are unable to advance the duty to consult argument based on the exercise of legislative authority alone. Finally, I agree with the Crown’s submission that there is no jurisprudence that supports the requested relief; namely, a stay of criminal proceedings. Accordingly, I must summarily dismiss this question.

V. Whether the laws under which the charges have been brought do not apply because they infringe the accused persons’ traditional use and trade of cannabis and hemp.

Analysis

[45] The Crown concedes this argument could be justiciable but submits that in the context of the present prosecutions, it does not have a reasonable prospect of success and must be dismissed.

[46] Section 35 of The Constitution Act provides as follows:

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

(2) In this Act, aboriginal peoples of Canada includes the Indian, Inuit and Métis peoples of Canada.

(3) For greater certainty, in subsection (1) treaty rights includes rights that now exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

[47] The Crown argues that the respondents have failed despite active judicial intervention to deliver the evidence required to advance their argument regarding the existence of the Amikwa Nation and their traditions regarding the trade in cannabis and hemp. The Crown submits that based on this record it is clear the evidence will not be forthcoming, if at all, in the timely fashion required to allow adjudication of these criminal charges.

[48] William James Newbigging, a professor at Laurentian University, swore a six-paragraph affidavit dated February 12, 2022. He notes that he began discussions with Elders Without Boarders in May 2021, but that due to his work schedule and retainer arrangements he could not begin his work on the report until October 2021.

[49] He attached to his affidavit his progress report dated January 25, 2022, though it was not contained in the affidavit that was filed. It was provided as a stand-alone document in CaseLines, is four pages and does not contain any references to source material.

[50] He noted in his affidavit that he has had difficulty accessing archives and libraries in Toronto and Quebec because many of them have been closed due to the pandemic. He states that the second expert, Konstantia Koutouki, has experienced similar difficulties and they expect to have their expert reports available by April 15, 2022.

[51] The Crown notes that with three weeks of trial set in June of this year, this late delivery of the expert reports may necessitate a delay in the trial to accommodate reply reports. The Crown submits the court must be mindful of the delays incurred to date and the guidance from appellate courts regarding summary dismissal. Some of the charges date back to 2018 and the NCQs themselves were served over two years ago. There needs to be finality to these criminal proceedings and the impacted communities require a resolution.

[52] The respondents submit the Crown’s position on this question does not accord with the recent guidance provided by the Supreme Court when considering s. 35 claims. In R. v. Desautel, 2021 SCC 17 the court explained the issue as follows:

[19] Whether a group is an Aboriginal people of Canada is, analytically speaking, a different question from whether the group has an Aboriginal right. This Court’s decision in Van der Peet was about the latter question. It set out a test for having an Aboriginal right, not for being an Aboriginal people of Canada. The Van der Peet test by itself is not, therefore, dispositive of this appeal. That said, evidence that is relevant to the question whether a group has an Aboriginal right may also be relevant to the question whether the group is an Aboriginal people of Canada.

[20] Whether a group is an Aboriginal people of Canada is a threshold question, in the sense that if a group is not an Aboriginal people of Canada, there is no need to proceed to the Van der Peet test. But this threshold question does not arise in every case. In most cases there is no doubt that the claimant belongs to an Aboriginal people of Canada, so there is no need to address the threshold question. The threshold question is likely to arise only where there is some ground for doubt, such as where the group is located outside of Canada. It should not be construed as an additional burden on rights claimants that has to be satisfied in every case.

[21] No previous decision of this Court interprets the scope of the words “aboriginal peoples of Canada” in s. 35(1). That is our task here. As this Court has often recognized, s. 35(1) must be interpreted in a purposive way (R. v. Sparrow, [1990] 1 S.C.R. 1075, at p. 1106; Van der Peet, at paras. 21-22; Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at para. 76).

[22] For the reasons that follow, I am of the view that a consistent development of this Court’s s. 35(1) jurisprudence requires that groups located outside Canada can be Aboriginal peoples of Canada. As I will explain, the two purposes of s. 35(1) are to recognize the prior occupation of Canada by organized, autonomous societies and to reconcile their modern-day existence with the Crown’s assertion of sovereignty over them. These purposes are reflected in the structure of Aboriginal rights and title doctrine, which first looks back to the practices of groups that occupied Canadian territory prior to European contact, sovereignty or effective control, and then expresses those practices as constitutional rights held by modern-day successor groups within the Canadian legal order. The same purposes are reflected in the principle of the honour of the Crown, under which the Crown’s historic assertion of sovereignty over Aboriginal societies gives rise to continuing obligations to their successors as part of an ongoing process of reconciliation.

[31] As this review of the jurisprudence shows, s. 35(1) serves to recognize the prior occupation of Canada by Aboriginal societies and to reconcile their contemporary existence with Crown sovereignty. These purposes are expressed in the doctrinal structure of Aboriginal law, which gives effect to rights and relationships that arise from the prior occupation of Canada by Aboriginal societies. Implicit in this doctrinal structure, and the purposes that underlie it, is the answer to our question. The Aboriginal peoples of Canada under s. 35(1) are the modern successors of those Aboriginal societies that occupied Canadian territory at the time of European contact. This may include Aboriginal groups that are now outside Canada.

[53] An evidentiary record is evidently required, the respondents argue, for the court to engage in the above-noted analysis; namely, to determine if the Amikwa Nation existed at the time of contact, and second, to determine their customs or rights, including whether that included the trade in cannabis and hemp. The Court of Appeal’s direction in Beaver v. Hill requires the court in the appropriate circumstances to provide the respondents with the opportunity to establish that record.

[54] In Beaver v. Hill, the proceedings were still in their early stages when the motions court judge dismissed Mr. Hill’s s. 36 claims. The court set aside the dismissal to afford him the time to marshal that evidence. An important difference between that case and the present case, is that the court allowed Ms. Beaver to obtain interim relief in accordance with Canadian and Ontario law. Although a final determination of the s. 35 claims on their merits was delayed, the court specifically noted this delay could not work to the disadvantage of Ms. Beaver.

[55] In the present case, the dispute involves the prosecution of serious criminal allegations. No interim relief can be granted in these proceedings while time is permitted in order to curate the required evidence. The impacted communities and society at large are asked to wait. Some of the charges are four years old. The NCQs have been outstanding over two years. The administration of justice may be brought into disrepute if these charges cannot be determined on their merits in a timely fashion having regard to the circumstances of this case.

[56] As well, unlike in Beaver v. Hill, much time has already been invested by the court and the parties in managing this case. To the credit of the respondents, they have all agreed that but for their NCQs, the cases for the Crown have been made out. This has saved the Crown the time required to prove each element of the offences beyond a reasonable doubt. They also focussed their NCQs, unlike the disorganized state of the pleadings before the motions judge and the Court of Appeal in Beaver v. Hill.

[57] A review of the case management efforts in this case is helpful:

• November 14, 2019, after the NCQs were raised, the Crown wrote to counsel for the respondents suggesting these questions were not justiciable, but keeping in mind Beaver v. Hill, they agreed to wait for the expert report
• Counsel for the respondents advised of illness in Dr. Harring's family and that he could not start his report until April 2020
• The pandemic impacted the operation of the courts in the Spring of 2020
• The Crown wrote to counsel for the respondents in April 2020 asking if he canvassed any other experts due to delay
• July 09, 2020, counsel for the respondents advised the report would be ready in November 2020 and he only expected Dr. Harring’s report.
• November 20, 2020, counsel for the respondents said he would provide the name of another expert but offered no details.
• At the next JPT he said in fact Dr. Harring could provide it; however, he missed the deadline of the end of March, and it was received in April 2021
• May 13, 2021 – in separate proceedings Lainevool J ruled that Dr. Harring was not qualified as an expert at the threshold admissibility stage.
• May 19, 2021, JPT – Counsel for the respondents said he wanted to hire a new expert and Ellies RSJ agreed to give him some time - the Crown raised the issue of a summary dismissal application.
• At the next JPT Ellies RSJ gave a deadline of November 15, 2021 - summary dismissal was to be argued after the expert report was provided and the date would be set for the hearing.
• The report was not received and at the November 18, 2021, JPT counsel for the respondents said it would be available mid to late January 2022.
• January 26, 2022, JPT – counsel for the respondents said he expected it mid-April 2022. Ellies RSJ ordered he provide affidavits explaining the delay in getting the reports.
• Cannabis expert report:
  • First raised in January 2020
  • July 09, 2020, counsel for the respondents said he was calling only Dr. Harring.
  • March 09, 2021, counsel for the respondents expressed having trouble finding a cannabis expert.
  • April 12, 2021, The Crown expressed concern at the JPT and said this would cause more delay.
  • May 07, 2021 – the name of the expert was provided.
  • June 21, 2021- the expert’s CV was provided by counsel for the respondents.
  • July 30, 2021, the date of Nov 15, 2021, was set for this report but it was not received.
  • Counsel for the respondents explained it would be ready by the end of Jan 2022, though it wasn’t received, and no details were provided other than to say it is expected by April 15, 2022.

[58] I am mindful of the direction from the appellate courts regarding delay as well as the need to determine s.35 arguments on their merits. This necessarily involves a delicate balancing of the interest in seeing these prosecutions completed and the rights that are being asserted by the respondents. Despite active case management, the reports remain unavailable. As I have already noted, the case management has been productive in other respects.

[59] Further progress has been made. This application has resulted in a narrowing of the issues - four of the NCQs have been dismissed. I cannot ignore the recent progress and affidavit evidence which suggests the reports may be ready in a few weeks. I appreciate the argument that public health measures resulting from the pandemic made access to research institutions difficult. I find that in the present circumstances the proper course of action for me as the trial judge is to continue with further case management. The application for summary dismissal of this question is accordingly dismissed, without prejudice. The Crown may bring this application back on ten days’ notice.

[60] I respectfully request that the trial coordinator in North Bay (where I understand the trial is scheduled to take place) schedule before me a case management conference on the record toward the end of April 2022. If the reports are not ready by then, the respondents will need to file affidavit evidence from both proposed experts explaining the reason for the delay, the status of the reports and setting out a realistic timeframe within which they can be delivered.

[61] If the reports are ready, I will set the schedule for the delivery of reply reports and the start of the voir dire on the admissibility of the proposed expert evidence.

[62] I wish to thank counsel for their cooperation in the case management efforts to date as well as for their able assistance on this application.

[63] A copy of this decision shall be placed in each of the follow court files:

a. CR-19-16 (Parry Sound); b. CR-19-020 (Parry Sound); c. CR-21-08 (Parry Sound); d. CR-19-11900 (Peterborough); e. CR-20-1353 (Peterborough); f. CR-20-8332 (Sault Ste. Marie); g. CR-21-1202 (Sudbury); h. CR-21-1203 (Sudbury); and i. CR-22-1257-MO (Sudbury)

The Honourable Mr. Justice P.J. Boucher Released: March 31, 2022 Correction Released: April 7, 2022

Footnotes

[^1]: When I started preparing these reasons, I noticed for the first time that the Crown’s application record did not contain a Notice of Application. My assistant corresponded with counsel on this issue and the Crown was under the impression the necessity of a Notice of Application may have been waived by Ellies RSJ. I received no response from counsel for the respondents. It is clear to me the parties were aware of the issues to be argued on this application and they had in fact participated in the setting of dates for delivery of materials and the argument of the application, with which they complied. In an abundance of caution, I am therefore waiving the need to deliver a Notice of Application pursuant to Rule 6.01(2) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) (the “Rules”).