Court File and Parties
CITATION: Grandmothers of the Algonquins of Pikwakanagan and Nipissing First Nation v. Ontario (Natural Resources), 2010 ONCA 439
DATE: 20100615
DOCKET: C51211
COURT OF APPEAL FOR ONTARIO
Doherty, Moldaver and Sharpe JJ.A.
BETWEEN
Merv Sarazin, Thomas Kohoko, Bruce Meness, Daniel Srazin, Joseph Chartrand, Robert Lavalley, and Vincent Lavalee and Mdaaswi Shi Nswi Nnookoomisag (Thirteen Alconquin/Nipissing Grandmothers)
Appellants
and
Ministry of Natural Resources and Her Majesty The Queen
Respondents
Counsel: Michael Swinwood and Liza K. Swale for the appellants Brian Wilkie, for the respondents
Heard & released orally: June 10, 2010
On appeal from the judgment of Justice L. Brennan of the Superior Court of Justice dated September 30, 2009.
ENDORSEMENT
[1] This appeal arises from the appellants’ application for prohibition in relation to charges pending before the Ontario Court of Justice pursuant to the Fish and Wildlife Conservation Act. The application judge granted the application prohibiting a named justice of the peace from conducting the trial in these proceedings but otherwise dismissed the application and returned the matter to the Ontario Court of Justice for trial.
[2] While the notice of appeal raises a wide range of issues, some of which fall outside the ambit of the jurisdiction of any court, the arguments advanced in the factum and in oral argument are somewhat more focussed and may be summarized as follows:
The writ of prohibition should be granted on the grounds that
the Fish and Wildlife Conservation Act is ultra vires the provincial legislature with respect to certain territory claimed as being subject to aboriginal sovereignty;
the aboriginal claims sought to be advanced arise as a matter of federal common law;
the prosecution is precluded by virtue of the doctrine of inter-jurisdictional immunity;
to ensure the proper application of the rule of law; and
institutional bias and discrimination precludes the Ontario Court of Justice as a whole from dealing with the prosecution.
[3] In our view, application judge did not err in refusing the writ of prohibition on these grounds and there is no merit to this appeal.
[4] It is well-established in Canadian law that where an accused person raises constitutional issues, claims of aboriginal right; inter-jurisdictional immunity or rule of law issues by way of defence to a charge, the proper place to advance those defences is in the court having jurisdiction to entertain the charges. If there is any merit to grounds 1 to 4, they are matters properly raised by way of defence to the charges against the appellants in the court having jurisdiction to entertain those charges, namely, the Ontario Court of Justice. If the appellants are dissatisfied with the result in the Ontario Court of Justice, they may have recourse to any statutory rights of appeal afforded from conviction.
[5] With respect to ground 5, we agree with the application judge when he said at para. 45:
I see no merit in the argument that Provincial Offences Court is not an appropriate tribunal to deal with these charges. Neither do I see merit in the argument that that court is prevented from dealing fairly with these charges by reason of institutional or operational bias. Another justice of the peace, aware of the admissions made by the prosecution, will be able to adjudicate.
[6] Accordingly the appeal is dismissed.
“D.H. Doherty J.A.”
“M. Moldaver J.A.”
“Robert J. Sharpe J.A.”