CITATION: R. v. Baker, 2008 ONCA 29
DATE: 20080117
DOCKET: M35558
COURT OF APPEAL FOR ONTARIO
LASKIN J.A. (in chambers)
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
LESLIE R. BAKER
Applicant
Donald R. Colborne for the applicant
Brian Wilkie for the respondent
Heard: October 18, 2007
On motion for an order under s. 131 of the Provincial Offences Act for leave to appeal the judgments of Justice A. Thomas McKay of the Ontario Court of Justice dated September 25, 2006 and August 23, 2007.
LASKIN J.A. (in chambers):
OVERVIEW
[1] The applicant, Leslie Baker, seeks leave to appeal two convictions under the Public Lands Act, R.S.O. 1990, c. P.43. Mr. Baker is a status Indian and a member of Couchiching First Nation, a signatory to Treaty Three. In the spring of 2001, Mr. Baker built a cabin on Trout Lake, not far from his home in Fort Frances. He was charged with doing so without a work permit under the Public Lands Act and contrary to a stop work order issued under the act. At his trial before Clysdale-Cornell J.P., Mr. Baker contended that he did not need a permit because his cabin was a communal Sundown cabin built in furtherance of his treaty right to hunt and fish.
[2] The justice of the peace held that Mr. Baker’s building of a cabin was reasonably incidental to his treaty rights. Nonetheless, she still convicted him of the two charges because she found that Trout Lake was outside Couchiching First Nation’s traditional territory.
[3] On appeal McKay J. upheld both convictions. But in doing so he reversed two key findings of the justice of the peace. First, the appeal court judge found that Trout Lake was within Couchiching First Nation’s traditional territory and that the justice of the peace’s contrary finding was not supported by the evidence. Both parties had agreed that the justice of the peace had made a factual error. Second, the appeal court judge held that Mr. Baker did not build his cabin in furtherance of any treaty right.
[4] Mr. Baker now seeks leave to appeal to this court under s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P.33. The statute prescribes a high threshold for obtaining leave: to succeed Mr. Baker must show that it is essential in the public interest or for the due administration of justice that leave be granted. Mr. Baker endeavours to meet this test by raising three grounds of appeal:
the appeal court judge erred by improperly overturning the justice of the peace’s finding that Mr. Baker was exercising a treaty right when he built his cabin;
the appeal court judge erred by failing to permit Mr. Baker to challenge the constitutionality of the Public Lands Act, regardless of whether he was exercising a treaty right; and
the appeal court judge erred by failing to set aside the convictions because of the reasonable apprehension of bias arising from the justice of the peace’s relationship with the district manager of the Ministry of Natural Resources, the ministry responsible for enforcing the Public Lands Act.
[5] For the brief reasons that follow, I do not consider it essential in the public interest or for the due administration of justice that leave be granted on any of the three grounds of appeal. Thus, I dismiss the motion.
1) Whether Mr. Baker was exercising a treaty right when he built his cabin
[6] Mr. Baker argues that the appeal court judge improperly overturned a finding of fact made by the justice of the peace. He contends that the question whether a person has an Aboriginal or treaty right is a question of fact, not a question of law. He argues that under s. 120 of the Provincial Offences Act, an appeal court judge is entitled to review a factual finding only if it is unreasonable or unsupported by the evidence, which is not the case here.
[7] I do not accept this argument. The question whether a person possesses an Aboriginal or treaty right is a question of law, not a question of fact: see R. v. Van der Peet, 1996 CanLII 216 (SCC), [1996] 2 S.C.R. 507 at para. 82. As the determination of Mr. Baker’s treaty rights is a question of law, under s. 120(1)(b)(iii) of the Provincial Offences Act the appeal court judge was entitled to review that determination.
[8] Moreover, it seems to me that the appeal court judge was correct in holding that Mr. Baker had not put forward an adequate evidentiary record to establish that he built his cabin in furtherance of a treaty right. Mr. Baker bore the burden to establish that the construction of his cabin was reasonably incidental to his treaty right to hunt and fish: see R. v. Sundown, 1999 CanLII 673 (SCC), [1999] 1 S.C.R. 393. In Sundown at para. 30, the Supreme Court of Canada elaborated on this burden:
In order to determine what is reasonably incidental to the treaty right to hunt, the reasonable person must examine the historical and contemporary practice of that specific treaty right by the aboriginal group in question to see how the treaty right has been and continues to be exercised.… The question is whether the activity asserted as being reasonably incidental is in fact incidental to an actually practiced right to hunt.
[9] The record in this case contains little evidence to connect Mr. Baker’s construction of his cabin either to the historical or contemporary practice of the Couchiching First Nation. In short, he did not show that he built a communal Sundown cabin. Instead, as the appeal court judge held, he seems to have built a summer cottage for personal use. Further, as the cabin is less than an hour from his home, he could exercise his treaty right to hunt and fish without the cabin.
[10] This ground of appeal does not warrant granting leave.
2) Whether Mr. Baker can challenge the constitutionality of the Public Lands Act
[11] Mr. Baker also argues that he should have been acquitted because the Public Lands Act is constitutionally invalid and that he should be permitted to mount this constitutional challenge even if he has not established an Aboriginal or treaty right. This court’s recent judgment in R. v. Shipman (2007), 2007 ONCA 338, 85 O.R. (3d) 585 answers Mr. Baker’s argument. There, at para. 21, LaForme J.A. held that a person who has not established an Aboriginal or treaty right cannot attack the underlying regulatory regime. Alternatively, even if the court has discretion to allow Mr. Baker to challenge the constitutionality of the statute, in the absence of an adequate evidentiary record, this is not an appropriate case to assess the validity of the regulatory regime. Thus, this ground of appeal also does not warrant granting leave.
3) Whether a reasonable apprehension of bias exists
[12] Mr. Baker contends that the relationship between the justice of the peace and the district manager of the Ministry of Natural Resources gives rise to a reasonable apprehension of bias on the part of the justice of the peace that warrants setting aside his convictions. The justice of the peace and the district manager are sister-in-law and brother-in-law; the district manager’s elk are transported to market by the farm operated by the justice of the peace; the two live across the road from each other in a small rural area and apparently their children play together. The appeal court judge rejected Mr. Baker’s contention that this relationship gave rise to a reasonable apprehension of bias. Mr. Baker submits this issue alone is sufficiently important that leave ought to be granted. I disagree.
[13] Obviously, as the Crown acknowledges, it is essential in the public interest and for the due administration of justice that our judicial system be free of any taint of bias. The test for reasonable apprehension of bias is set out by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at 394. That test, which has been endorsed consistently by the Supreme Court, is whether an informed person, viewing the matter realistically and practically would think it more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly.
[14] Although the facts of this case do raise a legitimate concern, the threshold for establishing disqualifying bias is high and I do not think it has been met in this case: see R. v. R.D.S., 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 at para. 113. Moreover, in deciding whether to grant leave, I must look at “the particular circumstances of the case”: see s. 131 of the Provincial Offences Act. And here, in my view, the particular circumstances of this case do not justify granting leave. Indeed, several considerations weigh against granting leave.
[15] Often in small rural communities in this province, the resident judge or justice of the peace will previously have had contact with or knowledge of one or more of the parties or witnesses before the court. By itself, that should not cause a reasonably informed person to have an apprehension of bias. Admittedly, here, the relations between the district manager and the justice of the peace go beyond mere previous contact.
[16] However, in this case, I see no other facts that might lend support to the bias allegation. For example, the record does not show that the district manager played any role in the investigation or the laying of charges against Mr. Baker. The district manager did not appear as a witness at the trial. And there is no hint of bias in the trial record.
[17] Moreover, Mr. Baker does not dispute that he built his cabin in breach of a stop work order and without obtaining a permit under the statute. His argument was purely a question of law that did not turn on any serious factual dispute or on the credibility of any witnesses. These considerations do not make this a desirable case in which to deal with the question of bias Mr. Baker raises. Thus, I deny leave on this last ground of appeal.
[18] The motion for leave to appeal is therefore dismissed.
“John Laskin J.A.”