CITATION: Brantford (City) v. Doolittle, 2024 ONCJ 498

DATE: September 30, 2024

IN THE MATTER OF

The Highway Traffic Act, R.S.O. 1990, c. H.8

Between

The Corporation of the City of Brantford

prosecutor (respondent)

and

Benjamin Doolittle

and

Tammy Duboy

defendants (applicants)

Ontario Court of Justice

Brantford, Ontario

Quon J.P.

Reasons for ruling on jurisdiction and 17 other pre-trial motions

Pre-trial Motions argued on: July 5, 2024 and August 9, 2024.

Rulings on pre-trial motions: September 30, 2024.

Charges: for the defendant Benjamin Doolittle - ss. 32(1) and 130(1) of H.T.A. – “drive motor vehicle – no licence” and “careless driving”

for the defendant Tammy Duboy- s. 32(10) of H.T.A. – “permit unlicenced person to drive motor vehicle”

Counsel:

Walsh, A., municipal prosecutor

Benjamin Doolittle and Tammy Duboy, defendants (self-represented)

Cases Considered or Referred To:

Haldimand Proclamation of 1784 cases

9646035 Canada Ltd. v. Hill, [2017] O.J. No. 4894, 2017 ONSC 5453 (Ont. S.C.J.), Harper J.

Brantford (City) v. Montour, 2013 ONSC 1219, [2013] O.J. No. 1016, 013 ONSC 1219 (Ont. S.C.J.), Arrell J.

Brantford (City) v. Michael Monture (August 28, 2003), Brantford 999-66297951 (Ont. C.J.), Edward J.

Doe ex dem. Jackson v. Wilkes, [1835] O.J. No. 33 (Upper Canada Court of King's Bench), Robinson C.J., Sherwood and Macauley JJ.

Isaac et al. v. Davey et al, (1975), 1974 40 (ON CA), 5 O.R. (2d) 610 (Ont. C.A.), Schroeder, Jessup and Arnup, JJ.A.

Isaac v. Davey, [1977] S.C.J. No. 34 (S.C.C.).

John Voortman & Associates Ltd. v. Haudenosaunee Confederacy Chiefs Council, 2009 14797 (ON SC), [2009] 3 C.N.L.R. 117 (Ont. S.C.J.), Henderson J.

Logan v. Styres, [1959] O.J. No. 329, [1959] O.J. No. 329 (Ont. Supreme Ct. – H.C.J.), King J.

R. v. David, [2000] O.J. No. 561 (Ont. S.C.J.), Rutherford J.

R. v. Francis, [2007] O.J. No. 966 (Ont. S.C.J.), Hackland J.

R. v. Gibson, [2007] O.J. No. 3948 (Ont. S.C.J.), Whitten J.

R. v. Jamieson, [2013] O.J. No. 5473 (Ont. C.J.), Harris J.

Six Nations of the Grand River Band of Indians v. The Attorney General of Canada and His Majesty the King in Right of Ontario, 2023 ONSC 3604, (Ont. S.C.J.), Akbarali J.

Six Nations of the Grand River Bands of Indians and The Attorney General of Canada and His Majesty the King in the Right of Ontario (defendants) and Mississauga's of the Credit First Nation, Court File Number: cv-18-00594281-0000 and Toronto Court File No. cv-18-594281-0000 (Originally Brantford Court File No. 406/95).

Thahoketoteh of Kanekota v. Canada, [2013] F.C.J. No. 386 (F.C.), Snider J.

Other cases mentioned or considered:

Baker v. Canada, 1999 699 (SCC), [1999] 2 S.C.R. 817 (S.C.C.).

Beswick v Beswick, [1966] 1 Ch. 538, [1966] 3 All E.R. 1 (C.A.).

Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 (S.C.C.).

British Columbia v. Imperial Tobacco Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473 (S.C.C.).

Cambie Surgeries Corporation v. British Columbia (Attorney General), 2017 BCSC 860 (B.C. S.C.).

Cardinal v. Director of Kent Institution, 1985 23 (SCC), [1985] 2 S.C.R. 643 (S.C.C.).

Dick v. The Queen, 1985 80 (SCC), [1985] 2 S.C.R. 309 (S.C.C.).

Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9, [2009] S.C.J. No. 9 (S.C.C.).

Ewert v. Canada, [2018] 2 S.C.R. 165, 2018 SCC 30 (S.C.C.).

Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73 (S.C.C.).

Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (S.C.C.).

Kane v. Bd. of Governors of U.B.C., 1980 10 (SCC), [1980] 1 S.C.R. 1105 (S.C.C.).

Krieger v Law Society (Alberta), 2002 SCC 65, [2002] 3 S.C.R. 372 (S.C.C.).

McAteer v. Canada (Attorney General), [2014] 121 O.R. (3d) 1, 2014 ONCA 57 (Ont. C.A.), Weiler, Lauwers and Pardu JJ.A.

Meads v. Meads, 2012 ABQB 571 (Alta. Q.B.).

Miller v. The King, 1949 59 (SCC), [1950] S.C.R. 168 (S.C.C.).

Mills v. The Queen, 1986 17 (SCC), [1986] 1 S.C.R. 863 (S.C.C.).

Morguard Investments Ltd. v. De Savoye, 1990 29 (SCC), [1990] 3 S.C.R. 1077 (S.C.C.).

Paul v. New York, No. 13-CV-5047 SJF AKT, 2013 WL 5973138 (E.D.N.Y. Nov. 5, 2013) (New York Distr. Ct).

Pettkus v. Becker, 1980 22 (SCC), [1980] 2 S.C.R. 834 (S.C.C.).

Post Office v. Estuary Radio, [1968] 2 Q.B. 740 (Court of Appeal (Civil Division)).

R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, 2001 SCC 81 (S.C.C.).

R. v. Askov, 1990 45 (SCC), [1990] 2 S.C.R. 1199 (S.C.C.).

R. v. Chowdrury, 2014 ONSC 2635 (Ont. S.C.J.), Nordheimer J.

R. v. Clark, [2005] 1 S.C.R. 6, 2005 SCC 2 (S.C.C.).

R. v. Crown Zellerbach Canada Ltd., 1988 63 (SCC), [1988] 1 S.C.R. 401 (S.C.C.).

R. v. Felderhof, [2002] O.J. No. 4103 , Campbell J.

R. v. Felderhof, 2003 37346 (ON CA), [2003] O.J. No 4819 (Ont. C.A.), Carthy, Doherty and Rosenberg, JJ.A.

R. v. Francis, 1988 31 (SCC), [1988] 1 S.C.R. 1025 (S.C.C.).

R. v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32 (S.C.C.).

R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520 (S.C.C.).

R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688 (S.C.C.).

R. v. Grant, [2009] 2 S.C.R. 353, 2009 SCC 32 (S.C.C.).

R. v. Gray, 1991 7130 (ON SC), [1991] O.J. No. 2013, 6 O.R. (3d) 73 (Ont. Crt. (Gen. Div.)),

Watt J.

R. v. Jordan, [2016] 1 S.C.R. 631, 2016 SCC 27 (S.C.C.).

R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66 (S.C.C.).

R. v. Mentuck, [2001] 3 S.C.R. 442, 2001 SCC 76 (S.C.C.).

R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103 (S.C.C.).

R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411 (S.C.C.).

R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 (S.C.C.).

R. v. Sparrow, 1990 104 (SCC), [1990] 1 S.C.R. 1075 (S.C.C.).

R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458 (S.C.C.).

R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326 (S.C.C.).

R. v. T. (V.), 1992 88 (SCC), [1992] 1 S.C.R. 749 (S.C.C.).

R. v. Taillefer; R. v. Duguay, [2003] 3 S.C.R. 307, 2003 SCC 70 (S.C.C.).

R. v. Tran, 1994 56 (SCC), [1994] 2 S.C.R. 951 (S.C.C.).

R. v. Van der Peet, 1996 216 (SCC), [1996] 2 S.C.R. 507 (S.C.C.).

R. v. Williams, 1998 782 (SCC), [1998] 1 S.C.R. 1128 (S.C.C.).

Reference re Judicature Act, 1988 5677, [1988] 46 C.C.C. (3d) 203 (N.B. C.A.)

Reference re Secession of Quebec, 1998 793 (SCC), [1998] 2 S.C.R. 217 (S.C.C.).

Region of York v. McGuigan, 2017 ONSC 436 (Ont. S.C.J.), Healy J.

RJR – MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311 (S.C.C.).

RJR – MacDonald Inc. v. Canada (Attorney General), 1995 64 (SCC), [1995] 3 S.C.R. 199 (S.C.C.).

Shot Both Sides v. Canada, 2024 SCC 12 (S.C.C.).

Sobhuza II v. Miller, [1926] A.C. 518

St. Catharines Milling and Lumber Co. v. The Queen (1887), 1887 3 (SCC), 13 S.C.R. 577 (S.C.C.).

The Queen and The Secretary of State for Foreign and Commonwealth Affairs, Ex Parte: the Indian Association of Alberta, Union of New Brunswick Indians, Union of Nova Scotian Indians, [1982] 2 All E.R. 118 (C.A.).

Vajesingji Joravarsingji Nayak vs. Secretary Of State For India, [1924] L.R. 51 1.8. 357 (J.C.P.C.)

Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245, 2002 SCC 79 (S.C.C.).

Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259 (S.C.C.)

Windsor (City) v. Canadian Transit Co. [2016] 2 S.C.R. 617, 2016 SCC 54 (S.C.C.).

Statutes, Regulations, Rules, and By-Laws cited:

An Act to amend the Citizenship Act (Truth and Reconciliation Commission of Canada’s call to action number 94), S.C. 2021, c. 13.

Canada Evidence Act, R.S.C. 1985, ss. 17 and 18.

Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, R.S.C. 1985, App. II, s. 24(2) and 25.

Citizenship Act, R.S.C., 1985, c. C-29, Schedule.

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, R.S.C. 1985, App. II, ss. 35, 35(1), and 52(1).

Constitution Act, 1867, 30 & 31 Victoria, C. 3 (U.K.), ss. 91(24), 96, and 109.

Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 38(2), 39, 96(3), 97, 108(2), and 148.

Evidence Act, R.S.O. 1990, c. E.23, s. 36(1).

Highway Traffic Act, R.S.O. 1990, C. H.8, ss. 32(1), 32(10), 128, and 130(1).

Indian Act, R.S.C., 1985, c. I-5, ss. 1, 81(1), and 88.

Oaths And Affirmations Regulation (Public Service of Ontario Act, 2006), O. Reg. 373/07, ss. 2(2) and 3(1).

Provincial Offences Act, R.S.O. 1990, c. P.33, ss. 2(1), 29, 29(1), 29(4), 29(4)(a), 29(4(b), 38(2), 39, 39(2), and 140(1).

Public Service of Ontario Act, 2006, S.O. 2006, c. 35, Sched. A, s. 5(1).

Royal Proclamation of 1763, R.S.C., 1985, App. II, No. 1, s. 25.

Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194, rules 19.08, 59.06, and 59.06(2).

Traffic By-Law Of The Six Nations Of The Grand River (Indian Act), online: Six Nations Council website << Six Nations of the Grand River Traffic By-law - Gazette des premières nations (fng.ca)>> or

<< Six Nations of the Grand River Traffic By-law (fng.ca)>>, s. 1.

Universal Declaration of Human Rights, G.A. Res. 217A (III), UN General Assembly Official Records, 3rd Sess., Supp. No. 13, UN Doc. A/810 (1948) 71, Article 15.

United Nations Declaration on the Rights of Indigenous Peoples Act, S.C. 2021, c. 14.

Reference Material Considered:

Beaton, Ryan, “De facto and de jure Crown Sovereignty: Reconciliation and Legitimation at the Supreme Court of Canada”, (2024), vol. 32April, Constitutional Forum constitutionnel journal, 25-34, online: Constitutional Forum constitutionnel journal website <<https://journals.library.ualberta.ca/constitutional_forum/index.php/constitutional_forum/article/view/29371/21370>>.

Collie, James, “Unsettling The Royal Proclamation Of 1763: A Substantive Analysis Of Section 25 Of The Charter”, (2024), vol. 61, no. 3, Alta. L.R., 637, 2024 Docs 929.

Fagan, David N., “Achieving Restitution: The Potential Unjust Enrichment Claims Of Indigenous Peoples Against Multinational Corporations”, (2001), vol. 70, May, New York Univ. L.R., 626, online: New York University Law Review website <<Achieving Restitution: The Potential Unjust Enrichment Claims of Indigenous Peoples against Multinational Corporations (nyulawreview.org)>>.

Hagopian, John S., “Joseph Brant vs. Peter Russell: A Re-examination of the Six Nations’ Land Transactions in the Grand River Valley”, (1997), vol. 30, No. 60, November, Histoire sociale / Social History journal, 301-333, online: York University website <<Joseph Brant vs. Peter Russell: A Re-examination of the Six Nations' Land Transactions in the Grand River Valley | Histoire sociale / Social History (yorku.ca)>> or <https://hssh.journals.yorku.ca/index.php/hssh/article/view/4704>.

Hogg, Peter W. Constitutional Law of Canada, 5th Edition. Scarborough, ON: Thomson Carswell, 2007.

Hundal, Bally, “Judicial Review and Justiciability”, 2019 Docs 4050, online: website <<https://www.canlii.org/en/commentary/doc/2019CanLIIDocs4050#!fragment/zoupio-_Toc39135521/BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoAvbRABwEtsBaAfX2zgGYBOARg4FZ+AJh4BKADTJspQhACKiQrgCe0AORrxEQmFwIFS1Rq069IAMp5SAIVUAlAKIAZBwDUAggDkAwg-GkwACNoUnZRUSA >> or https://canlii.ca/t/ss68.

McNeil, Kent, “Sovereignty and Indigenous Peoples in North America”, (2016), Articles & Book Chapters, 2642, [Source Publication: 22:2 University of California Davis Journal of International Law and Policy 81], online: Osgoode Hall Law School of York University (Osgoode Digital Commons) website <<Sovereignty and Indigenous Peoples in North America (yorku.ca)>>

or <<https://digitalcommons.osgoode.yorku.ca/scholarly_works/2642>>.

McNeil, Kent, “Shared Indigenous and Crown Sovereignty: Modifying the State Model” (2020), Articles & Book Chapters, 2815, online: Osgoode Hall Law School of York University (Osgoode Digital Commons) website <<Shared Indigenous and Crown Sovereignty: Modifying the State Model (yorku.ca)>> or https://digitalcommons.osgoode.yorku.ca/scholarly_works/2815>>.

Filice, Michelle, "Haldimand Proclamation", The Canadian Encyclopedia, by Joseph Dipple, Indigenous Peoples ed., published online June 3, 2016, last Edited Nov.10, 2020, online: The Canadian Encyclopedia website<<https://www.thecanadianencyclopedia.ca/en/article/haldimand-proclamation#TheHaldimandGrant1784>>.

Rowe, Malcolm and Shnier, Diane, “The Limits of the Declaratory Judgment”, (2022), vol. 67, no. 3, McGill L.J. 295 — (2022) 67:3 RD McGill 295, online: McGill Law Journal website << The Limits of the Declaratory Judgment - McGill Law Journal>>.

Slattery, Brian, "Aboriginal Sovereignty and Imperial Claims", (1991), vol. 29, No. 4, Osgoode Hall L.J.,

681-703, DOI: https://doi.org/10.60082/2817-5069.1734 https://digitalcommons.osgoode.yorku.ca/ohlj/vol29/iss4/2

Slattery, Brian, "Aboriginal Rights and the Honour of the Crown", (2005), vol. 29, no. 1, The Supreme Court L.R.: Osgoode’s Annual Constitutional Cases Conference, 433-445, DOI: https://doi.org/10.60082/2563-8505.1086 or online: Osgoode Digital Commons website <<https://digitalcommons.osgoode.yorku.ca/sclr/vol29/iss1/20>>.

Stratas, David, “A Judiciary Cleaved: Superior Courts, Statutory Courts And The Illogic Of Difference”,

(2017) 58 U.N.B.L.J. 54. Available at SSRN: https://ssrn.com/abstract=3057037

or http://dx.doi.org/10.2139/ssrn.3057037.

Surtees, R.J. Indian Land Surrenders in Ontario 1763 - 1867, February 1984, online: Government of Canada Publications website << R5-350-1983-eng.pdf (publications.gc.ca)>>.

Spaulding, Richard, “Doctrines Of Dispossession: A Critical Analysis Of Four Rationales For The Denial Or Extinguishment Of Aboriginal Rights In Canada” (Prepared for the Royal Commission on Aboriginal Peoples, 1996), online: Government of Canada Publications website <<Z1-1991-1-41-151-eng.pdf (publications.gc.ca)>>.

Table of Contents

Paragraphs

1. INTRODUCTION

1-7

(A) Additional Background (from The Canadian Encyclopedia)

8-14

(i) The Haldimand Proclamation of 1784 (from The Canadian Encyclopedia)

15-17

(ii) Early Land Title Disputes (from The Canadian Encyclopedia)

18-20

(iii) Land Survey, 1791 (from The Canadian Encyclopedia)

21-23

(iv) The Haldimand Tract (from The Canadian Encyclopedia)

24

(v) Two Row Wampum belt was used by indigenous people to reflect their understanding of the “Treaty of Niagara of 1764” (from The Canadian Encyclopedia)

25-29

(vi) The Haldimand Pledge of 1779 (from The Canadian Encyclopedia)

30

(vii) The Dorchester Proclamation of 1789 (from The Canadian Encyclopedia)

31-32

(viii) The Simcoe Patent of 1793 (from The Canadian Encyclopedia)

33-36

(ix) Land Leases and Sales of the Haldimand Tract (from The Canadian Encyclopedia)

37-38

(x) The City of Brantford Was Incorporated 1877 (from The Canadian Encyclopedia)

39

(xi) Six Nations of the Grand River Reserve, 1847 (from The Canadian Encyclopedia)

40-41

(xii) Modern Land Claims by Six Nations (from The Canadian Encyclopedia)

42

2. ARGUMENT ON PRE-TRIAL MOTIONS

(A) THE DEFENDANTS’ SUBMISSIONS

43

(B) THE PROSECUTION’S SUBMISSIONS

44-59

3. ANALYSIS AND RULINGS ON THE PRE-TRIAL MOTIONS

60-61

PART 1

(A) Motion For Review Of Prosecutorial Conduct To Determine Negligence And Potential Harms Committed Against The Defendants And For The Removal Of The Prosecutor

62-65

(B) Motion For Sanctions Against The Prosecution Or Officials For Misconduct Or Violation Of Legal Procedure

77-80

PART 2

(A) Motion for Dismissal of Charges based on the court’s “lack of jurisdiction” over the Grand River Mohawk lands

81-84

(1) The Defendants Contend That Treaties Between The British Colonial Government With Aboriginal Peoples Before 1867 Are Governed By International Rather Than Municipal Law

85-96

(2) Everyone, Including Non-Citizens And Self-Declared Sovereign Citizens Who Are Present In Canada Have To Comply With Canadian Law

97-99

(3) The Sovereign Citizen Defence

100

(a) The Rule of Law

101-103

(4) Self-Declared Sovereign Citizens Are Subject To The Jurisdiction Of The Ontario Courts

104-105

(5) Six Nations Of The Grand River Proceeding Before The Superior Court of Justice in Toronto

106-109

(6) Jurisdiction over an offence is based on the “territoriality principle”

110-111

(7) Jurisdiction of a court to decide an issue

112-113

(8) Territorial Jurisdiction Over An Offence Is Established Under The Provincial Offences Act, R.S.O. 1990, c. P.33

114

(9) Jurisdiction Over Provincial Offences Have Been Provided To The Ontario Court Of Justice Under The Courts Of Justice Act, R.S.O. 1990, c. C.43

115-117

(10) Do provincial traffic laws apply to First Nations’ people?

118-121

(11) The Supreme Court Of Canada’s View On Sovereignty In Respect To Aboriginal Title

122

(12) Do Provincial Laws Apply To First Nations’ People?

123

(13) S. 88 Of The Indian Act, R.S.C. 1985, c. I-5

124-125

(14) Do Ontario’s Traffic Laws Apply To The Six Nations Of The Grand River Reserve?

126-130

(15) Stare Decisis and Precedential Rulings in Respect to the “Haldimand Proclamation of 1784

131-141

(16) The Same Jurisdictional And Sovereignty Issue Was Raised As A Defence In The Criminal Case Of R. v. Jamieson, [2013] O.J. No. 5473 (Ont. C.J.)

142

(17) The Crown’s Statement of Defence in Six Nations of the Grand River Band of Indians v. The Attorney General of Canada and His Majesty the King in Right of Ontario (COURT FILE NO.: CV-18-594281-0000)

143-152

(18) De Facto Sovereignty Versus De Jure Sovereignty

153

(19) Reconciling The Concept Of Canadian Crown Sovereignty And First Nations’ Sovereignty

154-159

(20) United Nations Declaration on the Rights of Indigenous Peoples Act, S.C. 2021, c. 14

160-161

(21) The “Act of State Doctrine” Does Not Permit The Provincial Offences Court To Question The Claim Of Crown Sovereignty

162-167

(22) The Royal Proclamation of 1763

168-169

(23) The Supreme Court Of Canada In R. v. Sparrow Made A Legal Determination Of Sovereignty In Respect To The Royal Proclamation of 1763

170

(24) The Legal Duty By The Crown To Consult And Accommodate

171-175

(25) The Provincial Duty To Consult

176

(26) The Crown In Its Dealings With First Nations and Indigenous and Aboriginal Peoples Must Act Honourably

177

(27) The Royal Proclamation Of 1763 Is Constitutionalized Under s. 25 of the Charter of Rights and Freedoms

178

(28) The British Colonial Government’s View Of The “Haldimand Proclamation Of 1784”

179

(a) The Haldimand Proclamation of 1784 only conveyed a “right of occupation” to the Six Nations Confederacy

180

(b) Under the Royal Proclamation of 1763 only a beneficial interest in land had been granted by the British Crown to the Indigenous Peoples

181-182

(c) The Six Nations Confederacy may not have been treated honourably by the British Crown in respect to the Haldimand Tract

183

(d) British and colonial officials instituted an elaborate scheme of espionage and conspiracy to undermine Joseph Brant’s authority and effectiveness

184-186

(29) The Does The Provincial Offences Court Have Jurisdiction Over the Defendants and Their Highway Traffic Act Charges?

187-188

PART 3

189

(A) The Justiciability Principle

190-196

(1) The Appropriateness Of A Political Solution In Respect To The Haldimand Tract

197

(2) Change Of Attitude By Governments And Courts On Aboriginal Peoples’ Sovereignty

198-201

(B) Motion For Change Of Venue To The Federal Court Or To An Alternative Court Location Outside The Disputed Territory To Ensure Impartiality And Fairness

202-203

(1) Jurisdiction Of The Federal Court

204-205

(2) An Action In Respect To The “Haldimand Tract” Is Presently Being Litigated In The Superior Court of Ontario in Toronto

206-210

(3) The Special Claims Tribunal

211

(4) The Change Of Venue Provisions Under The Provincial Offences Act, R.S.O. 1990, c. P.33

212-219

(C) Motion For Recusal Of Officials And Court Members Who Possess Or Occupy Lands Within The Grand River Mohawk Lands To Avoid Conflict Of Interest

220-225

(D) Constitutional Challenge Of The Assertion By The Court And Prosecutors That They Are Not Obligated To Observe The “Haldimand Proclamation” And To Ensure The Officials’ Actions Comply With Their Constitutional Obligations

226-229

(1) The Provincial Offences Court Is A Statutory Court

230-239

(E) Motion For Investigation Of Unjust Enrichment

240-252

(F) Motion For Enforcement Of Legal Duties And Mandate That The Enforcement Of The “Haldimand Proclamation” As A Duty Imposed By Law And To Ensure That Officials Adhere To Their Oaths Of Office And Constitutional Obligations

253-261

(G) Motion For Verification Of Oaths Of Office Taken By All Judges, Prosecutors, Peace Officers And Other Officials Involved In The Defendants’ Case

262-267

(H) Motion For Discovery Of Documents And Evidence Related To The Defendants’ Case

268-278

(I) Motion For Injunctive Relief To Prevent Encroachment Or Actions By Officials On The Grand River Mohawk Lands To Ensure Exclusive Use And Enjoyment Of Rights

279-287

(J) Motion To Quash Indictment On The Grounds That It Is Based On A Misapplication Of Law Or Lacks Sufficient Evidence

288-294

(K) Motion For An Order Of Specific Performance Of The Treaty Obligations Under The “Haldimand Proclamation”

295-305

(L) Motion For Protection Order To Safeguard Defendants And Other Mohawk Residents From Further Legal Or Administrative Actions By Provincial Authorities

306-316

(M) Motion For Exclusion Of Evidence Obtained In Violation Of The Defendants’ Rights Or Through The Misapplication Of Law

317-328

(N) Motion For Judicial Notice Of Historical And Legal Facts Supporting The Defendants’ Claims

329-333

(1) Statutory provisions dealing with Judicial Notice

334-338

(O) Motion For Relief from Judgment in regards to prior judgments made without considering the specific legal and treaty rights of the Mohawk nation

339-345

(P) Motion For the Court To Provide Any Other Relief Deemed Just And Proper

346-353

4. DISPOSITION ON PRE-TRIAL MOTIONS

354-358

1. INTRODUCTION

[1] When you drive from the City of Toronto to the City of Brantford, which are two cities located geographically in the Province of Ontario, you may choose to travel first on the Queen Elizabeth Way until you reach the Town of Oakville and Highway 403 West. You then continue on Highway 403 West, which is a highway that goes towards the City of Hamilton. After travelling on Highway 403 West for about 36 minutes you would then drive pass the City of Hamilton. After travelling for another 14 minutes on Highway 403 West you would then have to take Exit 38 at the Wayne Gretzky Parkway to get to downtown Brantford and the Provincial Offences courthouse in Brantford. And, if your GPS in your car or cellphone is working properly you will be given directions on which turns to take in Brantford and which streets to travel on so that you can arrive at the courthouse located at 102 Wellington Street. During this trip from the City of Toronto to the City of Brantford, which takes about one hour and 36 minutes, you do not have to travel outside the Province of Ontario, nor do you have to enter into another Canadian province or another country to complete the trip. You also do not have to travel through any border crossings or ports of entry nor do you have to show any passports or visas to any officials at any customs or immigration checkpoints because you have not left Canada nor the Province of Ontario.

[2] The reason for having to travel from the City of Toronto to the City of Brantford on July 5, 2024 and August 9, 2024, had been to attend and sit in the Provincial Offences Court to hear and consider the myriad of pre-trial applications brought by Benjamin Doolittle, UE and Tammy Duboy (“the defendants”), who have both been charged with committing provincial offences under Ontario’s Highway Traffic Act. The prosecution alleges that these provincial or regulatory offences had been committed at 3:42 p.m. on December 22, 2022, at the location of Ellis Road and Highway 24 South in the County of Brant, in the Province of Ontario, which is just outside the City of Brantford. Both defendants had been charged by OPP Officer Fitzpatrick with committing these provincial offences and were issued Part I Certificates of Offence which contained set fines. Benjamin Doolittle, UE, was charge with “careless driving” under s. 130(1) and “driving without a driver’s licence” under s. 32(1); while Tammy Duboy was charged with “permit unlicenced driver to drive motor” under s. 32(10).

[3] However, because the primary issue in these pre-trial motions in respect to the defendants’ Highway Traffic Act charges are related to a disputed sovereignty and land title claim over specific territory within the Province of Ontario, that has been brought by the Mohawk Nation of the Grand River against both the Government of Canada and the Government of Ontario, it is important to first acknowledge that the City of Brantford, with a population estimated at 108,544, and which is located in the Grand River valley, has been for a millennia the home of the Anishinaabe, Haudenosaunee, Huron-Wendat, and Neutral nations, who had shared these lands under the Dish with One Spoon wampum agreement. Today, their descendants - the Haudenosaunee and Mississauga nations – continue to reside in the Grand River region which is the traditional land of the Huron-Wendat, the Haudenosaunee, and the Mississauga of the Credit First Nations and this land is governed by the Dish with One Spoon covenant between the Haudenosaunee Confederacy (Six Nations Confederacy) and the Confederacy of Ojibway and Allied Nations. The City of Brantford is also located approximately 27 to 32 kilometers from the present Six Nations of the Grand River reserve, depending on which route is taken for travel. The Six Nations of the Grand River reserve presently encompasses approximately 46,500 acres.

[4] The defendants are both members of the Mohawk Nation of the Grand River and contest the jurisdiction of the Provincial Offences Court in the City of Brantford to hear their respective cases. They contend in their ”lack of jurisdiction” application that the alleged offences did not occur in the Province of Ontario but had occurred instead on the sovereign territory of the Mohawk Nation, which is based on territory in Ontario that had been set aside for the Mohawk Nation in a colonial government decree issued on October 25, 1784, by Sir Frederick Haldimand, who was the governor of the Province of Quebec (the British Colonial Government at that time in pre-Confederation Canada), known as the “Haldimand Proclamation of 1784”. The “Haldimand Proclamation of 1784” had designated a tract of land to be set aside in perpetuity for the exclusive use by the Haudenosaunee, also known as the Six Nations Confederacy, in compensation for their alliance with British forces during the American Revolution (1775–83) and as a result of the Haudenosaunee losing their land that had been located in the present New York state area. This tract of land, known as the “Haldimand Tract”, had been described and designated in Governor Haldimand’s decree to cover an area that was to be bounded by 6 miles on both sides of the Grand River (located in present-day southwestern Ontario), from the source of the Grand River to Lake Erie. This area bordering on both sides of the Grand River, as described by the Haldimand decree, had covered about 950,000 acres. To obtain legal title to this tract of land, the British colonial government had entered into an agreement to purchase that tract of land from the Mississauga Nation in May of 1784. However, throughout the late 1700s and 1800s, the Crown and the Haudenosaunee (Six Nations Confederacy) have disputed the rights to the land title over the Haldimand Tract and of that 950,000 acres that had been designated for the people of the Six Nations Confederacy in the “Haldimand Proclamation of 1784”. Presently only about 46,500 acres of the original Haldimand Tract remain under the control of the Six Nations of the Grand River. Moreover, negotiations about legal title to the Haldimand Tract still continue today between the Canadian government, the Ontario government and the Six Nations of the Grand River. Ergo, the observation of not passing through any immigration checkpoints when entering the City of Brantford would be a facile answer in respect to a complex issue on this First Nations’ claims of sovereignty over lands that had not been ceded or conquered by colonial powers and to which the British Crown had claimed or asserted sovereignty over most of North America that had been occupied by Aboriginal Peoples.

[5] Of important note in the defendants’ pre-trial motions is that the defendants have submitted that they are not making any aboriginal rights arguments and have narrowed the grounds of their “lack of jurisdiction” argument to be based on the location where the alleged Highway Traffic Act offences had occurred, contending that the alleged offences had occurred within the territory, which is land that had been originally described as the “Haldimand Tract” and which they contend is the rightful sovereign territory of the sovereign Mohawk Nation. And, as the alleged offences occurred on the supposedly sovereign territory of the Mohawk Nation then the Provincial Offences Court would not have the jurisdiction to try the defendants’ Highway Traffic Act offences. Moreover, the defendants also submit that the Indian Act, R.S.C., 1985, c. I-5, is not applicable to these proceedings or to them as members of the sovereign Mohawk Nation. But more significantly, there is presently ongoing litigation between the Six Nations Indian Band of the Grand River and the Canadian and Ontario governments for compensation and declaratory relief in respect to the disputed land described in the “Haldimand Proclamation of 1784” in an action being heard in the Superior Court of Justice in the City of Toronto.

[6] Alas, on this court’s journey through reading the myriad of journal articles, caselaw, as well as historical, political, and legal perspectives on the “Haldimand Proclamation of 1784”, and reconciling the issues raised in these pre-trial motions, it has come to have a greater appreciation of the sovereignty issue maintained by indigenous people over their lands that had not been ceded or conquered with the Crown’s assertion of sovereignty. And, even though this court is bound by the principle of stare decisis in regards to higher courts’ judgments and interpretation of the “Haldimand Proclamation of 1784” and what had been legally granted to the Six Nations’ Confederacy, it should be acknowledged that there has been a change in judicial attitude towards indigenous peoples’ claims of sovereignty and the principle of federalism in which there may eventually be a recognition of a new form of federalism where Indigenous nations would form a third order of government, alongside federal and provincial governments, that would require a genuine consent-based partnership and shared governance.

[7] In addition, besides the “lack of jurisdiction” pre-trial motion, the defendants have also brought in total 18 pre-trial motions that seek the following orders or remedies which are described succinctly by the following:

(1) Motion for Change of venue to the Federal Court or to an alternative court location outside the disputed territory to ensure impartiality and fairness (relying on R. v. Tran, 1994 56 (SCC), [1994] 2 S.C.R. 951 (S.C.C.)).

(2) Motion for Recusal of Officials and Court members who possess or occupy lands within the Grand River Mohawk lands to avoid conflict of interest (relying on Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245, 2002 SCC 79 (S.C.C.)).

(3) Constitutional Challenge of the assertion by the court and prosecutors that they are not obligated to observe the “Haldimand Proclamation of 1784” and to ensure the officials’ actions comply with their constitutional obligations (relying on Reference re Secession of Quebec, 1998 793 (SCC), [1998] 2 S.C.R. 217 (S.C.C.)).

(4) Motion for Investigation of Unjust Enrichment (relying on Pettkus v. Becker, 1980 22 (SCC), [1980] 2 S.C.R. 834 (S.C.C.)).

(5) Motion for Enforcement of Legal Duties and to mandate the enforcement of the “Haldimand Proclamation of 1784” as a duty imposed by law and to ensure that officials adhere to their oaths of office and constitutional obligations (relying on Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 (S.C.C.)).

(6) Motion for Review of Prosecutorial Conduct to determine negligence and potential harms committed against the defendants (relying on R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411 (S.C.C.) and R. v. Crown Zellerbach Canada Ltd., 1988 63 (SCC), [1988] 1 S.C.R. 401 (S.C.C.)).

(7) Motion for Verification of Oaths of Office taken by all judges, prosecutors, peace officers and other officials involved in the defendants’ case (relying on McAteer v. Canada (Attorney General), [2014] 121 O.R. (3d) 1, 2014 ONCA 57 (Ont. C.A.), Weiler, Lauwers and Pardu JJ.A.)).

(8) Motion for Dismissal of Charges based on the court’s lack of jurisdiction over the Grand River Mohawk lands (relying on R. v. Jordan, [2016] 1 S.C.R. 631, 2016 SCC 27 (S.C.C.) and R. v. Askov, 1990 45 (SCC), [1990] 2 S.C.R. 1199 (S.C.C.)).

(9) Motion for Discovery of documents and evidence related to the defendants’ case (relying on R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326 (S.C.C.)).

(10) Motion for Injunctive relief to prevent encroachment or actions by officials on the Grand River Mohawk lands to ensure exclusive use and enjoyment of rights (relying RJR – MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311 (S.C.C.)).

(11) Motion to Quash Indictment on the grounds that it is based on a misapplication of law or lacks sufficient evidence (relying on R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6 (S.C.C.)).

(12) Motion for an Order of Specific Performance of the treaty obligations under the “Haldimand Proclamation” (relying on Beswick v Beswick, [1966] 1 Ch. 538, [1966] 3 All E.R. 1 (C.A.).

(13) Motion for Protection Order to safeguard the defendants’ and other Mohawk residents from further legal or administrative actions by provincial authorities (relying on R. v. Mentuck, [2001] 3 S.C.R. 442, 2001 SCC 76 (S.C.C.).

(14) Motion for Exclusion of Evidence obtained in violation of the defendants’ rights or through the misapplication of law (relying on R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103 (S.C.C.) and R. v. Grant, [2009] 2 S.C.R. 353, 2009 SCC 32 (S.C.C.).

(15) Motion for Sanctions against the prosecution or officials for misconduct or violation of legal procedure (R. v. Felderhof, 2003 37346 (ON CA), [2003] O.J. No 4819 (Ont. C.A.), Carthy, Doherty and Rosenberg, JJ.A.).

(16) Motion for Judicial Notice of historical and legal facts supporting the defendants’ claims (R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863 (S.C.C.).

(17) Motion for Relief from Judgment in regards to prior judgments made without considering the specific legal and treaty rights of the Mohawk nation (R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520 (S.C.C.)).

(18) Motion to Provide any other relief deemed just and proper by the court.

(A) Additional Background (from The Canadian Encyclopedia)

[8] The County of Brant is where the defendants had allegedly committed their Highway Traffic Act offences on December 22, 2022. The county is named after Joseph Brant (Thayendanegea), who was a Mohawk leader, and was established in 1851. The City of Brantford separated from the County of Brant when it was incorporated as a city in 1877. On January 1, 1999, the Town of Paris and the townships of Brantford, Burford, Oakland, Onondaga, and South Dumfries amalgamated to form a new city with the official legal name of the “County of Brant”. The County of Brant is situated on part of the original Haldimand Tract, which had been part of the traditional territory of the Neutral, Mississauga, and Haudenosaunee peoples.

[9] In July of 1852, the Six Nations sold to the provisional County of Brant the land upon which the Brant County Court House now stands at 80 Wellington Square in the City of Brantford.

[10] The Six Nations (Haudenosaunee) have a unique relationship with the Crowns of Canada and Ontario based upon the original Two Row Wampum agreement of 1613.

[11] In 1664, the British had sought and secured to have the same agreement for Peace, Friendship and Respect as the Dutch had secured in 1613 with the Haudenosaunee. The 1613 treaty, which had been the first treaty between Indigenous peoples and Europeans, had been recorded by the Haudenosaunee in a wampum belt known as the Two Row Wampum. The pattern of the belt consists of two rows of purple wampum beads against a background of white beads. The purple beads signify the courses of two vessels -- an Indigenous canoe and a European ship -- traveling down the river of life together, parallel but never touching. The three white stripes denote peace, friendship, and respect. Hence, this wampum records the meaning of the agreement, which had declared peaceful coexistence between the Haudenosaunee and Europeans (Dutch settlers in the area).

[12] The Six Nations (Haudenosaunee) people had allied with the British during the American Revolutionary War (1775-83), particularly warriors from the Mohawk, Cayuga, Onondaga and Seneca nations. Some warriors of the Oneida and Tuscarora nations also allied with them. These indigenous nations had longstanding trade relations with the British and had hoped that the British might stop European-American encroachment on their territories.

[13] After the Americans were victorious in their conflict with the British, the British Crown ceded all of its territory in the American colonies to their new government under a peace treaty, including that belonging to the Six Nations without consulting the Six Nations or making them a party to treaty negotiations. The British Crown had also endeavoured to resettle native Loyalists in Canada and provide some compensation for lands lost in the new United States. The British Crown had also hoped to use these new settlers, both Native Americans and European Americans, to develop agriculture and towns in areas west of Quebec, in the territory later known as Upper Canada.

[14] After the American Revolutionary war, Mohawk leaders John Deseronto and Joseph Brant met with British commander Frederick Haldimand to discuss the loss of their lands in what is now New York state. Haldimand had promised to resettle the Mohawk people near the Bay of Quinte, on the northeast shore of Lake Ontario, in present-day Ontario, Canada. Haldimand had also arranged for the purchase of land from other First Nations on the Bay of Quinte, which he then granted to the Mohawk people. However, there have also been questions and issues about the First Nations’ understanding of what such purchase entailed legally under British colonial law. About 200 of the Mohawk nation settled with Deseronto at what is now called the Tyendinaga Mohawk Territory in Ontario. This group of Mohawk originally led by John Deseronto settled on the Bay of Quinte known as Tyendinaga. On the other hand, Joseph Brant decided that he preferred to settle on the Grand River north of Lake Erie. Mohawks and other Six Nations members joined him in settling on the Grand River. By the Haldimand Proclamation of October 25, 1784, the British colonial government had granted a tract of land to the Mohawk Nation and the other Six Nations’ bands in appreciation of their support for the British Crown during the American Revolution. The British Crown had purchased the lands known as the “Haldimand Tract” from the Mississauga Nation on May 22, 1784, as part of the “Between the Lakes Treaty”. Joseph Brant then led a large group of the Native Loyalists to settle in the “Haldimand Tract”.

(i) The Haldimand Proclamation of 1784 (from The Canadian Encyclopedia)

[15] The disputed land that the defendants refer to is known as the “Haldimand Tract”. It was land referred to in a decree signed on October 25, 1784, by Sir Frederick Haldimand, the governor of Québec, which granted a tract of land to the Haudenosaunee, also known as the Six Nations (Onoñda’gega’ (Onondaga), Onyota’a:ka (Oneida), Onödowága:’ (Seneca), Gayogohó:no’ (Cayuga), Kanien'kehá:ka (Mohawk) and Skarù∙ręʔ (Tuscarora)), for their alliance and loyalty with British forces during the American Revolutionary war.

[16] After the American Revolutionary war, the Haudenosaunee lost much of their ancestral homeland in what is now upper New York state, an area now formally recognized as American territory. Mohawk leader Joseph Brant and some representatives of the Six Nations Confederacy, reminded the British government of the Haudenosaunee’s loyalty during the American Revolution, and pressured the British Crown to provide them with a land grant in pre-Confederation Canada to replace the territory that they had lost as a result of the war. Joseph Brant selected the valley of the Grand River in present-day southwestern Ontario as a place of settlement and in 1784, the governor of the province of Quebec, Frederick Haldimand, agreed to Joseph Brant’s request and made arrangements for the land grant.

[17] On May 22, 1784, Haldimand had signed an accord with Mississauga chiefs to cede approximately 950,000 acres of land to the British Crown for £1,180. The largest portion of this tract went to the Haudenosaunee, who received a tract of land measuring 6 miles deep on either side of the Grand River, beginning at its source and ending at Lake Erie.

(ii) Early Land Title Disputes (from The Canadian Encyclopedia)

[18] From the start, the Haudenosaunee and the British Crown had disagreed over the meaning of the “Haldimand Proclamation of 1784” and who actually held title to the Haldimand Tract. The British Crown had understood that the Haldimand Proclamation of 1784 had prohibited the Six Nations from leasing or selling the land to anyone but the Crown. However, Joseph Brant had argued that Haldimand had promised the Six Nations freehold land tenure. Moreover, Joseph Brant had maintained that selling and leasing the land to white settlers was important to the economy of the Six Nations, which had been hampered by non-sustainable hunting in the Grand River area. Joseph Brant also argued that limited white settlement in the area would promote the establishment of model farms and foster modernized economic development.

[19] These disputes over land title can be seen as part of a larger debate about Six Nations sovereignty. Joseph Brant had wanted the Six Nations to be recognized as autonomous Crown allies rather than as British subjects and as an independent nation, so that Six Nations would be able to sell their land to whomever they wanted. The British Crown, however, did not see the Six Nations as political entities, but rather as a group that was to receive special consideration, but still under Crown control.

[20] In 1791, the dispute surrounding the Haldimand Tract was further complicated. In that year, the British colonial government created the province of Upper Canada, adding another bureaucratic layer of government with which the Six Nations would have to negotiate in order to gain the land title that they had sought.

(iii) Land Survey, 1791 (from The Canadian Encyclopedia)

[21] Upon review of the Haldimand Proclamation of 1784, politician and Indian Department official Sir John Johnson noted an error involving the location of the northern boundary of the tract. Haldimand had mistakenly assumed that the headwaters of the Grand River resided within the territory ceded by the Mississauga Nation in 1784. However, this was inaccurate, as it in fact laid outside of the land that the British Crown had purchased from the Mississauga Nation.

[22] In order to clarify the boundaries of the tract, the British Crown appointed surveyor Augustus Jones to complete a survey of the Haldimand Tract in 1791. In so doing, Jones redefined the borders of the Six Nations’ land parcel, limiting the Haldimand Tract along its northern borders by what is known today as the Jones’ Base Line. In addition, Jones established straight-lined boundaries, rather than sinuous boundaries following every curve in the river, which can still be seen in today’s municipal boundaries.

[23] Joseph Brant (Thayendanegea) and others expected that once the Crown purchased the remaining territory from the Mississauga Nation — which they did in December 1792 — the remaining section to the headwaters of the Grand River would be given to the Six Nations. However, the Crown maintained that the Haldimand Proclamation could only include what could be legally transferred at the time, not what was intended to be transferred. Consequently, the Crown did not transfer these lands purchased in 1792 to the Six Nations as Haldimand originally intended.

(iv) The Haldimand Tract (from The Canadian Encyclopedia)

[24] Both defendants, Benjamin Doolittle, UE and Tammy Duboy, have been charged with committing offences under Ontario’s Highway Traffic Act, R.S.O. 1990, c. H.8, on December 22, 2022, in the County of Brant. The County of Brant is within the original Haldimand Tract that was comprised of 950,000 acres (385,000 hectares). Moreover, the Ontario cities and towns of Brantford, Cambridge, Cayuga, Fergus, Kitchener, Paris, and Waterloo, are now located in that original Haldimand Tract of 950,000 acres. Originally, the land forming the Haldimand Tract that had been set aside for the exclusive use of the Six Nations had covered 950,000 acres, but today only approximately 46,500 acres of that original tract remain for the exclusive use of the Six Nations, which is where the Six Nations of the Grand River reserve is situated.

(v) Two Row Wampum belt was used by indigenous people to reflect their understanding of the “Treaty of Niagara of 1764” (from The Canadian Encyclopedia)

[25] With the conquest of New France in 1760, Britain needed to create a policy that would ensure peaceful settlement and relations with First Nations’ people. In 1763, some First Nations had continued the conflict with the British by taking multiple forts throughout the interior as well as besieging Fort Detroit and Fort Pitt. At the same time, the British government outlined its “Indian” policies in the Royal Proclamation of 1763. Sir William Johnson, the superintendent of Indian affairs for the northern colonies, had been instructed to establish peace with the interior or western First Nations’ people. Johnson began in late 1763, circulating copies of the Royal Proclamation accompanied by strings of wampum to the First Nations from Nova Scotia to Hudson Bay to the Gulf of Mexico and the Mississippi River using messengers from the Algonquin and Nipissing First Nations. Additionally, Johnson presented the Royal Proclamation and explained its clauses to the Six Nations Confederacy in December 1763. Johnson also called for a congress to be held at Niagara in the summer of 1764.

[26] By July 1764, approximately 2,000 people from roughly 24 First Nations had gathered in Niagara to meet with Johnson. These included representatives from the Haudenosaunee, Detroit Wyandot, Anishinaabeg, Menominee, as well as those from the Seven Nations of Canada and the Western Confederacy. The Detroit Odawa, Sandusky Wyandot, and Ohio Shawnee refused to attend the conference. Worried about British dishonesty, Pontiac, Odawa First Nations’ leader, who had been a leader of the renewed warfare also did not attend the discussions in 1764. However, Pontiac did sign a preliminary peace treaty in 1765 and a final treaty the year after.

[27] The Niagara agreement of 1764 was entered into the wampum. Approximately 84 wampum belts were exchanged during the treaty council representing negotiations between various First Nations. At the conclusion of the council, Johnson presented a Covenant Chain wampum belt to the Western Confederacy. The two figures holding hands on the belt symbolized friendship and alliance that would bind Indigenous nations and the Crown, while the hexagons represented council fires. Johnson presented the Twenty-Four Nations Wampum to the First Nations. It symbolically showed they were all in a relationship. A Two-Row Wampum belt was given to Johnson by the First Nations. It indicated Indigenous understandings of the treaty and the Royal Proclamation of 1763. Johnson also presented 24 medals dated 1764 to the First Nations present, which contained an image of an Indigenous person and a settler peacefully smoking under a tree. Together, the wampum belts and medals, as well as the accompanying presents, established a peace and alliance between all the parties at the council and the British Crown.

[28] The First Nations who had agreed to the Niagara Treaty of 1764 had fought as allies with the British in the American Revolution and the War of 1812. Indigenous involvement in both of these conflicts had ensured British North America’s survival.

[29] While Canada does not officially recognize the Treaty of Niagara of 1764, First Nations see it as foundational to their understanding of the Royal Proclamation of 1763, as well as establishing a nation-to-nation relationship with the British Crown. According to John Borrows, an Anishinaabe legal scholar and theorist, the Royal Proclamation of 1763 cannot be understood without the presence of the Treaty of Niagara of 1764. Simply, the Royal Proclamation by itself only represents the Crown’s understanding of the relationship. However, together both the Royal Proclamation of 1763 and the Treaty of Niagara of 1764 represent a more rounded understanding of the Indigenous-Crown relationship. In fact, Borrows notes that, taken together, the two documents mandate non-interference of the Crown in Indigenous governance and lands as well as recognizing Indigenous sovereignty. The Crown, however, disagrees with this view.

(vi) The Haldimand Pledge of 1779 (from The Canadian Encyclopedia)

[30] In 1779, with the American Revolutionary War still raging, the Six Nations sought confirmation from the new Governor General, Sir Fredrick Haldimand, that the Promise of 1775 made by Sir Guy Carleton would be honoured. Haldimand then issued the Haldimand Pledge on April 7, 1779 — naming three Mohawk villages that had been destroyed: Canojarharie, Ticonderago, and Aughugo (also known as the Canajoharie, Fort Hunter and Oquaga). The people from these villages had been left homeless and the Six Nations wanted to know that they would have somewhere to go after the war. Haldimand had ratified Carleton’s earlier promise and said that all villages destroyed by the rebels during the war would be restored at the expense of the British colonial government once the fighting was over.

(vii) The Dorchester Proclamation of 1789 (from The Canadian Encyclopedia)

[31] Realizing the importance of having some type of recognition for loyalists who fought on the side of the British against the Americans, Lord Dorchester, the governor of Quebec and Governor General of British North America, declared on November 9, 1789, "that it was his Wish to put the mark of Honour upon the Families who had adhered to the Unity of the Empire". As a result of Dorchester's statement, the printed militia rolls carried the notation:

Those Loyalists who have adhered to the Unity of the Empire, and joined the Royal Standard before the Treaty of Separation in the year 1783, and all their Children and their Descendants by either sex, are to be distinguished by the following Capitals, affixed to their names: UE or U.E. Alluding to their great principle The Unity of the Empire.

[32] Therefore, Loyalists of the British Empire are entitled to place the mark of honour of “UE” or “U.E” after their name. In the case at bar, defendant Benjamin Doolittle uses this mark of honour after his name.

(viii) The Simcoe Patent of 1793 (from The Canadian Encyclopedia)

[33] Frustrated by the reduction in territory of the Haldimand Tract, Joseph Brant petitioned John Graves Simcoe, the first lieutenant governor of Upper Canada, in 1792 for control over the Haldimand Tract. Once Simcoe understood the confusion surrounding the errors and the vagueness of the Haldimand Proclamation of 1784, Simcoe decided to clarify the situation and achieve some form of compromise between the British Crown and Six Nations.

[34] Simcoe issued in 1793 a limited deed, what is referred to as the “Simcoe Patent”, which has been contested on whether any of the land in the Haldimand Tract had been conveyed as a title in fee simple to Six Nations. The Simcoe Patent had confirmed the new boundaries as marked by the surveyor Augustus Jones; it had limited the Haldimand Tract to 274,287 acres (111,000 hectares) for the exclusive use of the Six Nations. This left the rest of the land available to be leased, surrendered or sold by the Six Nations to the Crown. The Simcoe patent also stipulated that all land transactions of the Six Nations had to be approved by the Crown. However, a clause in the document ensured that the Six Nations could sell portions of the territory to the British colonial government whenever it became absolutely necessary.

[35] Much to the dismay of the Six Nations, the Simcoe Patent did not address the issue of land title to the territories by the headwaters of the Grand River. This remains a source of dispute between the Six Nations of the Grand River and the Ontario government.

[36] To Joseph Brant, this patent only reinforced the Crown’s trusteeship interpretation of the title. Brant and the Six Nations of the Grand River chiefs rejected Simcoe’s Patent and claimed that it was not binding on them.

(ix) Land Leases and Sales of the Haldimand Tract (from The Canadian Encyclopedia)

[37] By 1796, the Six Nations began selling and leasing land of the Haldimand Tract to settlers, despite the Crown’s initial objections. Joseph Brant had reached a compromise agreement with Simcoe’s successor, Peter Russell, whereby Six Nations could sell and lease the land, so long as they offered it to the Crown first. Joseph Brant had sold approximately 350,000 acres of land to the Crown, who then distributed it to private owners, according to arrangements made by Brant with these private owners. On February 5, 1798, this land was parcelled out in six large blocks to specific purchasers. These later developed into towns that still exist today:

Block No 1 – Township of Dumfries

Block No 2 – Township, Waterloo County

Block No 3 – Pilkington Township in Wellington County, and Woolwich

Township in Waterloo County

Block No 4 – Nichol Township in Wellington County

Block No 5 – Moulton Township in Haldimand County

Block No 6 – Canborough Township in Haldimand County

[38] As settlers began to settle further up the Grand River, in an area known as “Brant’s Ford,” they named their village Brantford, after Joseph Brant.

(x) The City of Brantford Was Incorporated 1877 And The County of Brant Was Established 1851 (from The Canadian Encyclopedia)

[39] European settlers had begun arriving in 1805 to the Haldimand Tract area, and as the number of colonists grew, the Six Nations eventually surrendered the townsite for the future City of Brantford in 1830, which had been located on the Grand River. In 1825, the centre of the Haldimand Tract had been named Brant’s Ford after Mohawk leader Joseph Brant. The City of Brantford, Ontario, was incorporated as a city in 1877. Brantford is also the site of the oldest Protestant church in Ontario, known as Her Majesty’s Chapel of the Mohawks, built in 1785 with a grant from King George III. Joseph Brant and his son John Brant (Ahyonwaeghs) are buried in the churchyard. In addition, the County of Brant which was established in 1851 and is named after Joseph Brant. The County of Brant originally consisted of Brantford Township (Brantford, Paris, Mount Pleasant, Cainsville), Buford Township (Burford, Scotland), Oakland Township (Scotland, Oakland), Onondaga Township (Onondaga, Middleport), South Dumfries Township (Paris, St. George, Glen Morris) and Tuscarora Township (Six Nations Reserve, New Credit Reserve). On January 1, 1999, the Town of Paris and the townships of Brantford, Burford, Oakland, Onondaga, and South Dumfries amalgamated to form a new municipality with the official legal name of County of Brant. The Brant County Courthouse was built on land purchased from the Six Nations in July of 1852.

(xi) Six Nations of the Grand River Reserve, 1847 (from The Canadian Encyclopedia)

[40] By the mid-1800s, squatters had moved into the Grand River Valley and threatened the Six Nations’ control of their land. The Province of Canada, as it was known then, suggested that the Six Nations sell their remaining acres to the Crown, as a means of protection. In return, Six Nations would receive money from the land sales, and a reserve of approximately 47,000 acres (19,000 hectares). According to the Crown, the Six Nations agreed to these terms in 1841. However, the validity of this agreement has been disputed by Six Nations, who claim that the Six Nations never agreed to sell the land, only to lease it.

[41] By 1847, the Six Nations had occupied the land that is home to the current Grand River reserve. The Six Nations of the Grand River reserve accounts for approximately 4.8 per cent of the original Haldimand Tract. Six Nations of the Grand River reserve (Six Nations Indian Reserve No. 40) is the largest reserve in Canada by population, with almost 13,000 residents and 27,559 registered band members as of 2019. It is also the second largest reserve by area in Canada.

(xii) Modern Land Claims by Six Nations (from The Canadian Encyclopedia)

[42] Disputes over the rights to the Haldimand Tract continued into the 20th and 21st centuries. In 1974, the Six Nations created the Six Nations Land Claims Research Office to pursue the terms laid out in the “Haldimand Proclamation of 1784”. Since then, the Six Nations Land Claims Research Office has submitted 29 separate claims to the Specific Claims Branch of the federal government.

2. ARGUMENT ON PRE-TRIAL MOTIONS

(A) THE DEFENDANTS’ SUBMISSIONS

[43] The defendants’ arguments for the pre-trial motions are summarized and outlined with the following submissions:

1. Establishment of Standing

The defendant, Benjamin Doolittle, submits that as the Secretary-General for the Mohawk Nation of Grand River and as a direct descendant of Colonel Joseph Brant, he and the defendant Tammy Duboy represent the interests of the entire Mohawk Nation. He also submits that the defendants’ standing is firmly established through historical treaties and legal documents, affirming their roles as representatives of the Mohawk Nation. This position he submits grants the defendants the authority to bring forth this case and address the pressing issues at hand.

2. Jurisdictional Competency of the Court

The defendants submits that the jurisdiction of this court over matters related to the Haldimand Proclamation is under scrutiny. The Proclamation is an imperial instrument, establishing a sovereign agreement between the Crown and the Mohawk Nation of Grand River. As a third party, Canada cannot alter or disregard this agreement. Consequently, the court's authority to adjudicate issues related to the Proclamation may be questioned.

3. Revocation of Consent

The defendants also formally revoke any implied or explicit consent that this court may believe it has to adjudicate matters related to the Haldimand Proclamation. Our position is that the court, under its current jurisdiction, lacks the authority to make determinations regarding the Proclamation, which is an imperial instrument and sovereign agreement. This revocation underscores our contention that the court is not authorized to handle issues governed by the Haldimand Proclamation.

4. The Haldimand Proclamation as a Sovereign Agreement

The defendants submit that the Haldimand Proclamation and associated treaties are binding sovereign agreements between the Crown and the Mohawk Nation. These documents are independent of Canadian legislative frameworks and judicial review. This distinct status necessitates a careful review of the court's authority to adjudicate these matters.

5. Failure to Observe Legal Duties

The defendants also contest the argument that the Haldimand Proclamation falls outside the duties of the Justice of the Peace. Citing McAteer v. Canada, we assert that failing to observe legally imposed duties, particularly those impacting safety, constitutes a criminal breach. The court's neglect to uphold the Proclamation not only breaches legal duties but also undermines the judicial process.

6. Conflict of Interest

The defendants further submit that the court's location and the presence of Crown agents on lands acquired by treaty with the Mohawk Nation raise substantial concerns about impartiality. This situation presents a conflict of interest that impacts the court's ability to render a fair and unbiased judgment.

7. Distinct Status of the Mohawk Nation of Grand River

The defendants also submit that the Mohawk Nation of Grand River holds a unique legal status. Although recognized by Canada, we are not classified under the Indian Act or the Constitution Act. Our distinct relationship with the Crown must be recognized and respected in all legal proceedings.

8. Irrelevance of Aboriginal Tests

In addition, the defendants submit that the application of aboriginal tests is inappropriate and irrelevant to this case. The Mohawk Nation of Grand River predates the Indian Act and the Constitution Act. Our rights and status are secured by the Haldimand Proclamation and the Haldimand Treaty of 1779, which are independent of these frameworks. The case of Wilkes v. Jackson establishes that the Haldimand Proclamation is not a collective interest subject to aboriginal tests. The noted fatal flaw in these tests was rectified by subsequent proclamations, including the Dorchester Proclamation, which instituted the mark of honor, and the Simcoe Proclamation, which created a heritage registry.

9. Guarantee of Status Quo Ante Bellum

The defendants also submit that the Haldimand Proclamation and Treaty of 1779 guarantee our status as a continuous society from a pre-Columbian era. This guarantee affirms our sovereignty and legal continuity, and it is imperative that this recognition is upheld by the court and the Crown.

10. Distinct Legal Obligations and Frameworks

The defendants also submit that the Mohawk Nation is not subject to the Indian Act or recognized under the Constitution Act as First Nations, Inuit, or Métis. The Haldimand Proclamation imposes specific duties on the Crown that are distinct from other legal frameworks. The court must honor these obligations and avoid conflating them with other categories.

11. Challenge to the Oath of Allegiance

The defendants also assert that the Haldimand Proclamation should be incorporated into the oath of allegiance as a standalone duty of the Crown. The failure to recognize and uphold this obligation has resulted in significant harm and undermined the constitutional integrity of our relationship with the Crown.

12. Constitutional Integrity and Legal Precedents

The defendants submit that their case raises concerns about constitutional integrity. According to McAteer v. Canada, one cannot use part of the Constitution to undermine another. The court's failure to uphold the Haldimand Proclamation constitutes an attack on constitutional integrity, placing the Mohawk Nation in harm's way and undermining our rights.

13. Jurisdictional Determination of Court Location

The defendants also submit that they filed evidence showing that the court located at 102 William Street falls within the 6-mile boundary established by the Haldimand Proclamation. Our measurements indicate that the court is 0.522 miles from the Grand River, placing it within the jurisdiction of the Mohawk Nation of Grand River. This determination supports our claim that the court's jurisdiction over this matter is questionable, given the historical and legal context of the Proclamation.

14. Additional Submissions by the defendants

Moreover, there is no Mutual Legal Assistance Agreement (MLA) between the Mohawk Nation of Grand River and Canada. The prosecution's reliance on offices or authorities located outside the Mohawk Nation's boundaries demonstrates a profound misunderstanding of both the law and the geography of the Haldimand Tract. These boundaries, as established by the Haldimand Proclamation, clearly delineate that our land is for the exclusive use of the Mohawk people. The presence of Canadian government offices or the assertion of provincial or federal jurisdiction within these boundaries, constitutes encroachment and violates our rights to sovereignty. Canadian law, without a mutual agreement in place, cannot be arbitrarily extended over Mohawk lands.

(B) THE PROSECUTION’S SUBMISSIONS

[44] The prosecution submits that the defendants' are seeking relief that a Justice of the Peace does not have the authority to grant. In particular, the prosecution submits that the defendants are seeking a writ of mandamus to bar Canadian or Ontario jurisdiction over the Grand River Mohawk lands and acquired territory based on treaties and proclamations. The prosecution also submits that a writ of mandamus is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion. However, the prosecution submits that a mandamus order is a prerogative remedy that falls within the jurisdiction of the Superior Court of Ontario. Furthermore, the prosecution submits that s. 140(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, governs which level of court can grant prerogative remedies:

Mandamus, prohibition, certiorari

140(1) On application, the Superior Court of Justice may by order grant any relief in respect of matters arising under this Act that the applicant would be entitled to in an application for an order in the nature of mandamus, prohibition or certiorari

[45] Furthermore, the prosecution contends that the defendants are essentially seeking a remedy that would effectively declare that the Highway Traffic Act does not apply to the Mohawk Nation of the Grand River community. The prosecution submits that the defendants are relying upon the Haldimand Proclamation of 1784, the Treaty of 1779, and the Two Row Wampum agreement. Moreover, the prosecution contends that the defendants have indicated in their applications that they are questioning the jurisdiction of the court and objecting to the "presence and operation of this office on our lands until such time as the foundational legal question of jurisdiction, as informed by the Haldimand Proclamation and its role in Canadian Law, is satisfactorily resolved."

[46] The Prosecution further relies on s. 88 of the Indian Act, R.S.C., 1985, c. I-5, which provides that subject to the terms of any treaty and any other Act of Parliament, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province:

88. Subject to the terms of any treaty and any other Act of Parliament, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are inconsistent with this Act or the First Nations Fiscal Management Act, or with any order, rule, regulation or law of a band made under those Acts, and except to the extent that those provincial laws make provision for any matter for which provision is made by or under those Acts.

[47] Therefore, the prosecution submits that the Highway Traffic Act, which is a provincial law of general application, falls under s. 88 of the Indian Act, and as such, the defendants are required to abide by the rules of the road.

[48] The prosecution further submits that the Provincial Offences Court in the City of Brantford court does have jurisdiction to proceed forward with the prosecution of the defendants’ alleged charges and the following cases support the prosecution's position.

[49] In the case of R. v. Sparrow, 1990 104 (SCC), [1990] 1 S.C.R. 1075 (S.C.C.), the prosecution submits that the Supreme Court of Canada had set out the test for justification, which requires that a legislative objective must be attained in such a way as to uphold the honour of the Crown and be in keeping with the unique contemporary relationship, that is grounded in history and policy, between the Crown and Aboriginal peoples. Moreover, the prosecution submits that s. 35(1) of the Constitution Act, 1982 does not promise immunity from government regulation in contemporary society, but it does on the other hand hold the Crown to a substantive promise. Specifically, the prosecution submits that the government is required to bear the burden of justifying any legislation that has some negative effect on any aboriginal right protected under s. 35(1).

[50] Furthermore, in the unreported case of Brantford (City) v. Michael Monture (August 28, 2003), Brantford 999-66297951 (Ont. C.J.), the prosecution submits that the accused Monture had been convicted at trial of speeding 117 km/h in a posted 80 km/h zone. After the conviction submits the prosecution, Monture filed an appeal and at the appeal Monture admitted that the facts in the case constituted a contravention of s. 128 of the Highway Traffic Act, but Monture had argued that he had been exercising an existing aboriginal right to mobility under s. 35(1) of the Constitution Act, 1982, and therefore, s. 128 of the Highway Traffic Act was an interference of this right and should be invalid under s. 52(1) of the Constitution Act, 1982.

[51] The prosecution submits that Justice Edward in Brantford (City) v. Michael Monture had applied the test set out by the Supreme Court of Canada in R. v. Sparrow, 1990 104 (SCC), [1990] 1 S.C.R. 1075, to determine whether s. 128 of the Highway Traffic Act is inconsistent with s. 35(1) of the Constitution Act, 1982. Furthermore, the prosecution submits that Justice Edward found that the Aboriginal right of mobility was not infringed on, as no one was going to interfere with the appellant's desire to travel on the highway in question as long as he was not going in excess of the posted speed limit.

[52] Moreover, the prosecution submits that Justice Edward then proceeded onto the second test in the Sparrow case, namely if there was an interference with an aboriginal right, was there a valid legislative objective in interfering with that right? For that issue, the prosecution submits that Monture had conceded that there are laws that have been established to ensure the safety of public, who are both aboriginal and non- aboriginal, on our roads and highways.

[53] In applying the test set out in Sparrow to the case at bar, the prosecution submits that with respect to the defendant Doolittle, the defendant's mobility rights as an aboriginal person have not been infringed upon. The defendant Dolittle, submits the prosecution, was free to lawfully travel on the roadway, but it was the collision that had brought Doolittle’s actions to the police officer’s attention. In addition, the prosecution submits that part of the allegations before the court is that the defendant Doolittle does not hold a valid driver's licence, and as such, the prosecution takes the position that the defendant Doolittle was not lawfully travelling in a motor vehicle on the roadway. Moreover, the prosecution submits that the second test as outlined in Sparrow must fail as well, since the Highway Traffic Act does not have any negative effect on aboriginal rights, as it is a public welfare statute that regulates the rules of the road to keep motorists and other persons using the road safe.

[54] The prosecution also disputes the defendants’ comments that the prosecution is unilaterally imposing provincial jurisdiction over the Mohawk people without the benefit of a mutual legal assistant agreement or extradition treaty. In addition, the prosecution submits that there is a legal foundation to proceed forward with the prosecution of the charges against the defendants, as the defendants are before the court as a result of allegations under the Highway Traffic Act, which is public safety legislation that applies to all public roads within the Province of Ontario.

[55] And, with respect to the defendants' comments that prosecution has failed to prove jurisdiction, the prosecution respectfully submits that the onus is on the defendants to show that the defence motion should be granted. Furthermore, the prosecution submits that the Province of Ontario was formed on July 1, 1867, and the land that is referenced in the defence materials has been recognized as being part of the Province of Ontario since July 1, 1867. Moreover, the prosecution submits that the area in which the alleged incident took place falls within Brant County which was established as a County in 1851.

[56] Furthermore, in response to the defendants’ pre-trial motions, the prosecution submits that because there is an ongoing and active case in the Superior Court of Justice of Ontario in Toronto dealing with many of the issues brought by the defendants in their pre-trial motions, the prosecution urges the court to proceed with caution when making any determinations with respect to the Haldimand Proclamation of 1784.

[57] That Superior Court of Justice case submits the prosecution is styled, “Six Nations of the Grand River Bands of Indians (Plaintiff) and The Attorney General of Canada and His Majesty the King in the Right of Ontario (defendants) and Mississauga's of the Credit First Nation (intervenor), Court File Number: cv-18-00594281-0000 and Toronto Court File No. cv-18-594281-0000 (Originally Brantford Court File No. 406/95). This particular case, submits the prosecution, is relevant to this proceeding as one of the topics to be decided upon is the “Haldimand Proclamation of 1784”. Moreover, from the link to the pleadings: https://snqrlitigation.com/pleadings/As, it can been seen that the Plaintiff's amended statement of claim is looking for a declaration that the Haldimand Proclamation of 1784 had set apart or set aside lands in which legal title had been vested in the Crown extending for six miles from each side of the Grand River for the use and benefit of the Six Nations of the Grand River.

[58] Finally, the prosecution submits that in the Province of Ontario, driving is a privilege and not a right, and that the Highway Traffic Act applies to all roads within the Province of Ontario, including roads that fall within a reserve as noted in the Supreme Court of Canada case of R. v. Francis, 1988 31 (SCC), [1988] 1 S.C.R. 1025 (S.C.C.). Moreover, the prosecution submits that the location of the alleged offence does not fall within a reserve, however based on the arguments made by the defendant, should the court decide that the land where this alleged offence had taken place falls within the territory of a reserve, the Highway Traffic Act would still apply.

[59] Therefore, the prosecution submits that the defendants’ motions should be dismissed and the matters that are before the court should proceed to trial.

3. ANALYSIS AND RULINGS ON THE PRE-TRIAL MOTIONS

[60] The defendants have submitted 18 pre-trial motions for the court to consider in relation to their to their provincial offences charges laid under Ontario’s Highway Traffic Act. The 18 motions will be individually considered and determined as practically as possible in the order that they were brought by the defendants in their written arguments set out in their documents submitted as Exhibit #1.

[61] However, some of the pre-trial motions will have to be considered out of order from those outlined by the defendants, which will be based on their priority of importance to the logical furtherance of these proceedings. Ergo, the Motion for Review of Prosecutorial Conduct and for the Removal of the Prosecutor will need to be addressed first in Part 1 of these written reasons. Then, the Motion for “Lack of Jurisdiction” of the Provincial Offences Court of the Ontario Court of Justice will be considered next in Part 2 of these written reasons. Part 2 will also include decisions from higher courts on their interpretation of the legal nature and purpose of the “Haldimand Proclamation of 1784”, as well as commentary on the historical, legal and political consequences of the “Haldimand Proclamation of 1784”, and a review of academic commentary on the legitimacy of the Crown’s assertion of sovereignty over the lands that sovereign Aboriginal societies had traditionally occupied. And finally in Part 3 of these written reasons, the remaining pre-trial motions will be considered in the order that they were outlined by the defendants. The motions that will be considered in Part 3 for the most part deal with prerogative writs and equitable remedies that are being sought by the defendants.

PART 1

(A) Motion For Review Of Prosecutorial Conduct To Determine Negligence And Potential Harms Committed Against The Defendants And For The Removal Of The Prosecutor

[62] In this motion, the defendants request a review of the conduct by the prosecution and for the removal of Prosecutor Walsh due to her improper conduct towards the defendants. The defendants contend that the prosecutorial conduct in question is that despite the waiver by the defendants in receiving disclosure of the prosecution’s evidence and their desire not to receive any disclosure from the prosecution, Prosecutor Walsh’s action in intentionally emailing disclosure to the defendants was negligent and egregious, and as such, the defendants rely on R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411 (S.C.C.) and R. v. Crown Zellerbach Canada Ltd., 1988 63 (SCC), [1988] 1 S.C.R. 401 (S.C.C.), to support their motion to remove Prosecutor Walsh.

[63] The defendants also submit that even though R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326 (S.C.C.) mandates disclosure be made by the prosecution, their express waiver alters this duty and that Prosecutor Walsh in providing disclosure against their expressed waiver contradicts the fairness intended by the Stinchcombe ruling.

[64] Furthermore, the defendants submit that the R. v. O'Connor case highlights the abuse of process doctrine, which protects against actions that undermine judicial integrity, so that the prosecutor's error in providing disclosure after the defendants’ waiver can be seen as such an abuse. In addition, the defendants submit that the R. v. Crown Zellerbach Canada Ltd. case recognizes that the principles of federalism and jurisdiction must be respected, and without established jurisdiction, the prosecutor's actions are questionable. The defendants also rely on R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66 (S.C.C.), which had emphasized the Crown's duty to act with fairness and integrity and that the unwanted disclosure being forwarded to the defendants violates this duty. As well, the defendants submit that the legal principle of “estoppel” prevents the prosecutor from benefiting from their own error after acknowledging it, and that estoppel prevents someone from arguing something or asserting a right that contradicts what they had previously agreed to or said.

[65] In response to the defendants’ motion to review the prosecutorial conduct and their request to remove the prosecutor, Prosecutor Walsh submits that she had not been the original prosecutor and had not been aware that the defendants had informed the original prosecutor that the defendants had waived their right to receive disclosure, and because of this unawareness she had mistakenly emailed disclosure to the defendants under her legal obligation to provide disclosure of the prosecution’s case of the Highway Traffic Act charges to the defendants. However, once she had realized her mistake about the defendant’s desire not to receive disclosure of the prosecution’s case, Prosecutor Walsh said that she had apologized to the defendants and admitted she had erred in providing disclosure to the defendants.

(1) Has there been prosecutorial misconduct which would require removal of the prosecutor?

[66] The defendants contend that Prosecutor Walsh had committed prosecutorial misconduct by sending the defendants their disclosure even though the defendants had notified the prosecution office that they had waived their right to receive that disclosure. For that misdiscretion by Prosecutor Walsh, the defendants ask for an order that she be removed as the prosecutor on their case.

[67] In R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411 (S.C.C.), at paras. 73 and 74, L'Heureux-Dubé J., held that a challenge based on non-disclosure will generally require a showing of actual prejudice to the accused's ability to make full answer and defence. L'Heureux-Dubé J. also adopted the reasoning that while the Crown has an obligation to disclose, and the accused has a right to all that which the Crown is obligated to disclose, a simple breach of the accused's right to such disclosure does not, in and of itself, constitute a violation of the Charter so as to entitle a remedy under s. 24(1) [emphasis is mine below]:

As I have already noted, the common law doctrine of abuse of process has found application in a variety of different circumstances involving state conduct touching upon the integrity of the judicial system and the fairness of the individual accused's trial. For this reason, I do not think that it is helpful to speak of there being any one particular "right against abuse of process" within the Charter. Depending on the circumstances, different Charter guarantees may be engaged. For instance, where the accused claims that the Crown's conduct has prejudiced his ability to have a trial within a reasonable time, abuses may be best addressed by reference to s. 11(b) of the Charter, to which the jurisprudence of this Court has now established fairly clear guidelines (Morin, supra). Alternatively, the circumstances may indicate an infringement of the accused's right to a fair trial, embodied in ss. 7 and 11(d) of the Charter. In both of these situations, concern for the individual rights of the accused may be accompanied by concerns about the integrity of the judicial system. In addition, there is a residual category of conduct caught by s. 7 of the Charter. This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.

Non-disclosure by the Crown normally falls within the second category described above. Consequently, a challenge based on non-disclosure will generally require a showing of actual prejudice to the accused's ability to make full answer and defence. In this connection, I am in full agreement with the Court of Appeal that there is no autonomous "right" to disclosure in the Charter (at pp. 148-49 C.C.C.):

...the right of an accused to full disclosure by the Crown is an adjunct of the right to make full answer and defence. It is not itself a constitutionally protected right. What this means is that while the Crown has an obligation to disclose, and the accused has a right to all that which the Crown is obligated to disclose, a simple breach of the accused's right to such disclosure does not, in and of itself, constitute a violation of the Charter such as to entitle a remedy under s. 24(1). This flows from the fact that the non-disclosure of information which ought to have been disclosed because it was relevant, in the sense there was a reasonable possibility it could assist the accused in making full answer and defence, will not amount to a violation of the accused's s. 7 right not to be deprived of liberty except in accordance with the principles of fundamental justice unless the accused establishes that the non-disclosure has probably prejudiced or had an adverse effect on his or her ability to make full answer and defence.

It is the distinction between the "reasonable possibility" of impairment of the right to make full answer and defence and the "probable" impairment of that right which marks the difference between a mere breach of the right to relevant disclosure on the one hand and a constitutionally material non-disclosure on the other. [Italics in original; underlining added.]

Where the accused seeks to establish that the non-disclosure by the Crown violates s. 7 of the Charter, he or she must establish that the impugned non-disclosure has, on the balance of probabilities, prejudiced or had an adverse effect on his or her ability to make full answer and defence. It goes without saying that such a determination requires reasonable inquiry into the materiality of the non-disclosed information. Where the information is found to be immaterial to the accused's ability to make full answer and defence, there cannot possibly be a violation of the Charter in this respect. I would note, moreover, that inferences or conclusions about the propriety of the Crown's conduct or intention are not necessarily relevant to whether or not the accused's right to a fair trial is infringed. The focus must be primarily on the effect of the impugned actions on the fairness of the accused's trial. Once a violation is made out, a just and appropriate remedy must be found.

[68] Moreover, in R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411 (S.C.C.), at para. 241, Major J., in dissent, found that the Crown had breached its duty under Stinchcombe and the undertaking to disclose files to the defence, and as such, impaired the accused's right to make full answer and defence, as well as violating the fundamental principles of justice underlying the community's sense of fair play and decency:

The same breaches of the disclosure order, the duty under Stinchcombe, and the undertaking to disclose files to the defence which impaired the accused's right to make full answer and defence also violated fundamental principles of justice underlying the community's sense of fair play and decency. The community would see proceedings as being unfair where the Crown continually failed in its obligations and finally was unable to assure the court that it could ever meet them.

[69] Furthermore, in R. v. Crown Zellerbach Canada Ltd., 1988 63 (SCC), [1988] 1 S.C.R. 401, LeDain J. for the Supreme Court of Canada, at para.71, commented that to allocate jurisdiction in respect to environmental pollution exclusively to the federal Parliament would involve sacrificing the principles of federalism enshrined in the Constitution, because provincial power and autonomy would be on the way out over the whole range of local business, industry, and commerce, as established to date under the existing heads of provincial powers [emphasis is mine below]:

To allocate environmental pollution exclusively to the federal Parliament would, it seems to me, involve sacrificing the principles of federalism enshrined in the Constitution. As Professor William R. Lederman has indicated in his article, "Unity and Diversity in Canadian Federalism: Ideals and Methods of Moderation" (1975), 53 Can. Bar Rev. 597, at p. 610, environmental pollution "is no limited subject or theme, [it] is a sweeping subject or theme virtually all pervasive in its legislative implications". If, he adds, it "were to be enfranchised as a new subject of federal power by virtue of the federal general power, then provincial power and autonomy would be on the way out over the whole range of local business, industry and commerce as established to date under the existing heads of provincial powers". And I would add to the legislative subjects that would be substantially eviscerated the control of the public domain and municipal government. Indeed as Beetz J. in Re: Anti Inflation Act, supra, at p. 458, stated of the proposed power over inflation, there would not be much left of the distribution of power if Parliament had exclusive jurisdiction over this subject. For similar views that the protection of environmental pollution cannot be attributed to a single head of legislative power, see P. W. Hogg, Constitutional Law of Canada (2nd ed. 1985), at pp. 392 and 598; Gérald A. Beaudoin, "La protection de l'environnement et ses implications en droit constitutionnel" (1977), 23 McGill L.J. 207.

[70] In addition, “estoppel” is a judicial device in common law legal systems in which a court may prevent or "estop" a person from making assertions or from going back on their word. Furthermore, the doctrine of estoppel (which may prevent a party from asserting a right) is in contrast to the doctrine of waiver (which relates to relinquishing a right once it has arisen). For reliance-based estoppel, which involves one party relying on something the other party has done or said, then the party who performed or spoke is the one who is estopped.

[71] Moreover, in R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, the Supreme Court of Canada expanded the scope of disclosure in criminal cases by imposing obligations on both the police and Crown prosecutors that would bridge the gap between first party disclosure under R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326 (S.C.C.) and third party production under R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411 (S.C.C.). Furthermore, the Supreme Court of Canada held in R. v. McNeil that the police and other investigating agencies must disclose to the prosecuting Crown, as first party disclosure material, findings of serious misconduct by police officers involved in the investigation of the accused, since this information may be relevant to their credibility and reliability. However, the Supreme Court ruled that not all such information will necessarily be given to the defence and that Crown counsel must perform a gatekeeper role in reviewing this material and withholding or redacting information that is irrelevant or privileged. Furthermore, the Supreme Court indicated that the gatekeeper function requires that the Crown conduct a studied analysis to determine relevance and if the material has no realistic bearing on the credibility or reliability of the person involved in the investigation, it should not be disclosed to the defence. Furthermore, the Supreme Court also noted that where a prosecutor is put on notice or informed of the existence of information potentially relevant to an accused’s case that is held by a Crown entity (or other third party), the prosecutor has a duty to inquire and obtain the information if it is reasonably feasible to do so. On the other hand, the Supreme Court also recognized that the Crown is not obliged to make such inquiries if the notice appears unfounded and that the defence in any event would still retain the ability to seek the information through a R. v. O’Connor application for third-party information or documents.

[72] Also, in R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, Lebel J. writing for the majority of the Supreme Court of Canada, at paras. 50 to 57, held that the abuse of process doctrine provides courts with the authority to order that a proceeding be stayed on the basis that they are unfair or otherwise sufficiently undermine the integrity of the judicial system [emphasis is mine below]:

L’Heureux-Dubé J. thus held that now, when the courts are asked to consider whether the judicial process has been abused, the analysis under the common law and the Charter will dovetail (see O’Connor, at para. 71). In this manner, while it acknowledged that the focus of the Charter had traditionally been the protection of individual right, the O’Connor decision reflected and accommodated the earlier concepts of abuse of process, described at common law as proceedings “unfair to the point that they are contrary to the interest of justice” (R. v. Power, 1994 126 (SCC), [1994] 1 S.C.R. 601, at p. 616), and as “oppressive treatment” (R. v. Conway, 1989 66 (SCC), [1989] 1 S.C.R. 1659, at p. 1667). In an earlier judgment, McLachlin J. (as she then was) expressed it this way:

. . . abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community’s sense of fair play and decency. The concepts of oppressiveness and vexatiousness underline the interest of the accused in a fair trial. But the doctrine evokes as well the public interest in a fair and just trial process and the proper administration of justice. I add that I would read these criteria cumulatively.

(R. v. Scott, 1990 27 (SCC), [1990] 3 S.C.R. 979, at p. 1007)

Under the Charter, the violation of specific fair trial rights may also constitute an abuse of process, as will a breach of the more general right to fundamental justice (see O’Connor, at para. 73).

Finally, this Court’s most recent consideration of the concept of abuse of process arose in the administrative context. In Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44, it was held that a 30-month delay in processing a sexual harassment complaint through the British Columbia human rights system was not an abuse of process causing unfairness to the alleged harasser. For the majority, Bastarache J. came to this decision on the basis that abuse of process has a necessary causal element: the abuse “must have caused actual prejudice of such magnitude that the public’s sense of decency and fairness is affected” (para. 133). In Blencoe’s case, it was held that the humiliation, job loss and clinical depression which he suffered did not flow primarily from the delay, but from the complaint itself, and the publicity surrounding it (Blencoe, at para. 133; see also United States of America v. Cobb, [2001] 1 S.C.R. 587, 2001 SCC 19).

B. Stay of Proceedings

A stay of proceedings is only one remedy to an abuse of process, but the most drastic one: “that ultimate remedy”, as this Court in Tobiass, supra, at para. 86, called it. It is ultimate in the sense that it is final. Charges that are stayed may never be prosecuted; an alleged victim will never get his or her day in court; society will never have the matter resolved by a trier of fact. For these reasons, a stay is reserved for only those cases of abuse where a very high threshold is met: “the threshold for obtaining a stay of proceedings remains, under the Charter as under the common law doctrine of abuse of process, the ‘clearest of cases’” (O’Connor, supra, at para. 68).

Regardless of whether the abuse causes prejudice to the accused, because of an unfair trial, or to the integrity of the justice system, a stay of proceedings will only be appropriate when two criteria are met:

(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and

(2) no other remedy is reasonably capable of removing that prejudice. [O’Connor, at para. 75]

The Court’s judgment in Tobiass, at para. 91, emphasized that the first criterion is critically important. It reflects the fact that a stay of proceedings is a prospective rather than a retroactive remedy. A stay of proceedings does not merely redress a past wrong. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole, in the future.

As discussed above, most cases of abuse of process will cause prejudice by rendering the trial unfair. Under s. 7 of the Charter, however, a small residual category of abusive action exists which does not affect trial fairness, but still undermines the fundamental justice of the system (O’Connor, at para. 73). Yet even in these cases, the important prospective nature of the stay as a remedy must still be satisfied: “[t]he mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings” (Tobiass, at para. 91). When dealing with an abuse which falls into the residual category, generally speaking, a stay of proceedings is only appropriate when the abuse is likely to continue or be carried forward. Only in “exceptional”, “relatively very rare” cases will the past misconduct be “so egregious that the mere fact of going forward in the light of it will be offensive” (Tobiass, at para. 91).

Any likelihood of abuse which will continue to manifest itself if the proceedings continue then must be considered in relation to possible remedies less drastic than a stay. Once it is determined that the abuse will continue to plague the judicial process, and that no remedy other than a stay can rectify the problem, a judge may exercise her or his discretion to grant a stay.

Finally, however, this Court in Tobiass instructed that there may still be cases where uncertainty persists about whether the abuse is sufficient to warrant the drastic remedy of a stay. In such cases, a third criterion is considered. This is the stage where a traditional balancing of interests is done: “it will be appropriate to balance the interests that would be served by the granting of a stay of proceedings against the interest that society has in having a final decision on the merits”. In these cases, “an egregious act of misconduct could [never] be overtaken by some passing public concern [although] . . . a compelling societal interest in having a full hearing could tip the scales in favour of proceeding” (Tobiass, at para. 92).

[73] For the alleged prosecutorial misconduct, Prosecutor Walsh was not the first prosecutor dealing with the file and she had admittedly not been aware that the defendants had waived their right to receive disclosure from the prosecution when she had actually fulfilled her legal obligation to provide disclosure to the defendants. Providing disclosure to defendants or persons charged with committing criminal or quasi-criminal offences so that accused persons would be able to make full answer and defence is a legal duty and obligation on the prosecution as required by R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326 (S.C.C.). Sopinka J. held in R. v. Stinchcombe that it is difficult to justify the position which clings to the notion that the Crown has no legal duty to disclose all relevant information. Moreover, Sopinka J. reasoned that the arguments against the existence of such a duty are groundless while those in favour, are, in his view, overwhelming. Furthermore, Sopinka J. held that the “fruits of the investigation” which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction, but the property of the public to be used to ensure that justice is done [emphasis is mine below]:

Production and discovery were foreign to the adversary process of adjudication in its earlier history when the element of surprise was one of the accepted weapons in the arsenal of the adversaries. This applied to both criminal and civil proceedings. Significantly, in civil proceedings this aspect of the adversary process has long since disappeared, and full discovery of documents and oral examination of parties and even witnesses are familiar features of the practice. This change resulted from acceptance of the principle that justice was better served when the element of surprise was eliminated from the trial and the parties were prepared to address issues on the basis of complete information of the case to be met. Surprisingly, in criminal cases in which the liberty of the subject is usually at stake, this aspect of the adversary system has lingered on. While the prosecution bar has generally co-operated in making disclosure on a voluntary basis, there has been considerable resistance to the enactment of comprehensive rules which would make the practice mandatory. This may be attributed to the fact that proposals for reform in this regard do not provide for reciprocal disclosure by the defence (see 1974 Working Paper at pp. 29-31; 1984 Report at pp. 13-15; Marshall Commission Report, infra, Vol. 1, at pp. 242-44).

It is difficult to justify the position which clings to the notion that the Crown has no legal duty to disclose all relevant information. The arguments against the existence of such a duty are groundless while those in favour, are, in my view, overwhelming. The suggestion that the duty should be reciprocal may deserve consideration by this Court in the future but is not a valid reason for absolving the Crown of its duty. The contrary contention fails to take account of the fundamental difference in the respective roles of the prosecution and the defence. In Boucher v. The Queen, 1954 3 (SCC), [1955] S.C.R. 16, Rand J. states, at pp. 23-24:

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

I would add that the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done. In contrast, the defence has no obligation to assist the prosecution and is entitled to assume a purely adversarial role toward the prosecution. The absence of a duty to disclose can, therefore, be justified as being consistent with this role.

Other grounds advanced by advocates of the absence of a general duty to disclose all relevant information are that it would impose onerous new obligations on the Crown prosecutors resulting in increased delays in bringing accused persons to trial. This ground is not supported by the material in the record. As I have already observed, disclosure is presently being made on a voluntary basis. The extent of disclosure varies from province to province, from jurisdiction to jurisdiction and from prosecutor to prosecutor. The adoption of uniform, comprehensive rules for disclosure by the Crown would add to the work-load of some Crown counsel but this would be offset by the time saved which is now spent resolving disputes such as this one surrounding the extent of the Crown's obligation and dealing with matters that take the defence by surprise. In the latter case an adjournment is frequently the result of non-disclosure or more time is taken by a defence counsel who is not prepared. There is also compelling evidence that much time would be saved and therefore delays reduced by reason of the increase in guilty pleas, withdrawal of charges and shortening or waiver of preliminary hearings. The 1984 Report (at pp. 6-9) refers to several experimental projects which were established after the publication of the 1974 Working Paper in order to test the viability of pre-trial disclosure. The result of these experiments, and in particular the Montreal experiment, which was the most exhaustively evaluated, was that there was a significant increase in the number of cases settled and pleas of guilty entered or charges withdrawn.

[74] Additionally, in Krieger v Law Society (Alberta), 2002 SCC 65, [2002] 3 S.C.R. 372, Iacobucci and Major JJ., at para. 45, 54 and 55, noted that in our theory of government, it is the sovereign who holds the power to prosecute his or her subjects and that a decision of the Attorney General, or of his or her agents, within the authority delegated to him or her by the sovereign is not subject to interference by other arms of government. In addition, Iacobucci and Major JJ. emphasized that while the Crown Attorney retains the discretion not to disclose irrelevant information, disclosure of relevant evidence is not, therefore, a matter of prosecutorial discretion but, rather, it is a prosecutorial duty [emphasis is mine below]:

As discussed above, these powers emanate from the office holder’s role as legal advisor of and officer to the Crown. In our theory of government, it is the sovereign who holds the power to prosecute his or her subjects. A decision of the Attorney General, or of his or her agents, within the authority delegated to him or her by the sovereign is not subject to interference by other arms of government. An exercise of prosecutorial discretion will, therefore, be treated with deference by the courts and by other members of the executive, as well as statutory bodies like provincial law societies.

In Stinchcombe, supra, the Court held that the Crown has an obligation to disclose all relevant information to the defence. While the Crown Attorney retains the discretion not to disclose irrelevant information, disclosure of relevant evidence is not, therefore, a matter of prosecutorial discretion but, rather, is a prosecutorial duty. Absent an explanation demonstrating that the Crown Attorney did not act dishonestly or in bad faith, it is settled law, per Sopinka J. for the Court in Stinchcombe, supra, at p. 339, that “[t]ransgressions with respect to this duty constitute a very serious breach of legal ethics”. This is reflected in para. (d) of the Rule which applies only to breaches of the duty to disclose which involve dishonesty or bad faith.

In this case, it would appear that the respondent Krieger failed to disclose all relevant information to the defence, but later offered an explanation. If true, the failure to disclose would constitute a violation of the duty expressed in Stinchcombe. The explanation would help to determine if the respondent Krieger had acted dishonestly or in bad faith. If so, this would be an ethical breach and would fall within the jurisdiction of the Law Society. The Law Society in the fulfillment of their duties will determine whether the respondent acted in conformity with the professional ethics of the Law Society of Alberta.

[75] In sum, the conduct of Prosecutor Walsh emailing or forwarding disclosure of the prosecution’s case to the defendants, if it had not been waived by the defendants, would have been a legal duty, obligation, and requirement for Prosecutor Walsh to fulfill as required under R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326 (S.C.C.), so that the defendants would be able to make full answer and defence. Prosecutor Walsh’s act in fulfilling her obligation to provide disclosure, even though the defendant’s had waived their right to be provided disclosure of the prosecution’s evidence, had been made honestly and in good faith; however, it is not conduct that is oppressive, vexatious, or unfair to the defendants, nor does it violate the community’s sense of fair play and decency. Moreover, Prosecutor Walsh’s act in providing disclosure to the defendants, albeit unwanted by the defendants, would be more of an inadvertent act than one that would be classified as a clear case of prosecutorial misconduct that would cause an unfair trial and which would warrant the removal of Prosecutor Walsh.

[76] Ergo, Prosecutor Walsh’s action in fulfilling her legal duty and obligation to provide disclosure to the defendants, even though the defendants had waived receiving such disclosure, is not conduct that causes unfairness to the defendants’ fair trial interests. As such, this motion to have Prosecutor Walsh removed is not warranted, and as such, the motion for removal of the prosecutor is dismissed.

(B) Motion For Sanctions Against The Prosecution Or Officials For Misconduct Or Violation Of Legal Procedure

[77] In this pre-trial motion, the defendants ask this court for sanctions against the prosecution or officials for misconduct or violation of legal procedure and rely on the R. v. Felderhof, 2003 37346 (ON CA), [2003] O.J. No 4819 (Ont. C.A.) case to support this motion. However, it was not the prosecutor’s conduct that was egregious or uncivil in R. v. Felderhof that had been in question, but that of defence counsel Groia who had been the cause of the complaint for misconduct that had been filed with the Law Society of Upper Canada and which the prosecutors contend had caused an unfair trial for the prosecution.

[78] Furthermore, in R. v. Felderhof, [2002] O.J. No. 4103, Campbell J. of the Superior Court of Justice of Ontario, at paras. 20 to 24, had specified what the proper role and purpose of a prosecutor in the Canadian system of justice would entail. Campbell J. notes, in particular, that the prosecutor has a dual role in the justice process: on the one hand, Crown counsel must seek to act fairly to achieve a just result in the furtherance of the public interest; on the other hand, the prosecutor can legitimately act as an advocate in striving to obtain a just conviction. Moreover, Campbell J. remarks that it is improper for Crown counsel to seek a conviction in the sense of seeking a conviction at all costs, or breaching the quasi-judicial duty of fairness and evenhandedness. On the other hand, Campbell J. indicated that it would be proper for a prosecutor to seek a conviction as an aspect of seeking justice in the public interest as long as the prosecutor acts fairly and dispassionately and endeavours to ensure that justice is done through a fair trial upon the merits [emphasis is mine below]:

Some of the trouble in this case flows from Mr. Groia's failure to understand the proper role of a prosecutor. Mr. Groia, in his unrestrained attacks on Mr. Naster's professional integrity said over and over again that it is improper for the prosecutor to seek a conviction. That statement, standing alone, is inaccurate.

The classic words of Mr. Justice Rand, that "the purpose of a criminal prosecution is not to obtain a conviction" must be read in the context of the passage in which they appear. The context makes it clear that the mischief is not to seek a conviction but to do so unfairly.

It is improper for Crown counsel to seek a conviction in the sense of seeking a conviction at all costs, or breaching the quasi-judicial duty of fairness and evenhandedness. This principle is sometimes expressed by saying that it is not the function of the prosecutor "simply" to seek a conviction, because his or her quasi-judicial duties involve much more than simply seeking a conviction. In this expression of the principle, everything turns on the qualification "simply", because it is appropriate for a Crown prosecutor to seek a conviction so long as he or she does not seek it unfairly or at all costs.

Far from it being improper to Crown counsel to seek a conviction, it is appropriate for a prosecutor to seek a conviction as an aspect of seeking justice in the public interest. As the Honourable Michel Proulx J.A. and David Layton say in Ethics and Canadian L aw:

A prosecutor can seek a conviction but must all the while strive to ensure that the defendant has a fair trial.

In acting as an advocate, the prosecutor is not to seek to convict but rather must see that justice is done through a fair trial upon the merits, and must act fairly and dispassionately.

The duty of the Crown to act fairly does not preclude the use of a trial strategy aimed at securing a conviction, so long as the strategy does not result in unfairness to the accused. As Binnie J. stated in R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, "it is not the duty of the Crown to bend its efforts to provide the defence with the opportunity to develop and exploit potential conflicts in the prosecution's testimony. This is the stuff of everyday trial tactics and hardly rises to the level of an oblique motive'.

Moreover, it has long been established that the Crown has no obligation to call a witness considered unnecessary to the prosecution case.

The prosecutor has a dual role in the justice process. On the one hand, Crown counsel must seek to act fairly to achieve a just result in the furtherance of the public interest. On the other hand, the prosecutor can legitimately act as an advocate in striving to obtain a just conviction. Probably the greatest challenge for a prosecutor is reconciling the frequent tension involving these duties.

Those passages make it clear that although the prosecutor may not act unfairly, it is appropriate for the prosecutor to seek a conviction. As one Crown counsel noted:

... counsel for the Crown are expected to be strong and persuasive public advocates who fully and effectively represent the interests of the Attorney General in an adversarial process ... Crown counsel must be skilled and diligent advocates, and must be permitted to vigorously pursue a legitimate result to the best of their abilities.

[79] The alleged prosecutorial misconduct being claimed by the defendants is that Prosecutor Walsh had forwarded disclosure of the prosecution’s evidence to the defendants even though they had waived the right to receive it, which the defendants had given to the prosecutor who had the original carriage of the defendants’ case. Once Prosecutor Walsh had realized her error in providing the defendants’ disclosure to them in email form, she apologized to the defendants. As indicated earlier, all that Prosecutor Walsh had done when taken at its worse, is that Prosecutor Walsh had been only fulfilling her legal duty and obligation as a prosecutor to provide full disclosure to the defendants as mandated by R. v . Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326 (S.C.C.), and her conduct of providing disclosure in order to fulfill her prosecutorial obligation had been so that the defendant would be able to make full answer and defence and to have a fair trial. Moreover, the disclosure provided by Prosecutor Walsh to the defendants did not cause unfairness or prejudice to the defendants or prevent them from having a fair trial. The conduct by Prosecutor Walsh is far from approaching a point where the court would feel it would be necessary to impose a sanction.

[80] Ergo, the defendants’ motion for sanctions against the prosecution or officials for misconduct or violation of legal procedure is dismissed.

PART 2

(A) Motion for Dismissal of Charges based on the court’s “lack of jurisdiction” over the Grand River Mohawk lands

[81] The defendants’ principal pre-trial motion seeks a dismissal of their provincial offences charges laid under the Highway Traffic Act and is based on the contention that the Provincial Offences Court in the City of Brantford “lacks jurisdiction” over the defendants because the alleged offences, which are alleged to have occurred at Ellis Avenue and Highway 24 South in the County of Brant, is on land which the sovereign Mohawk Nation claim is their sovereign territory that had been granted to them under the “Haldimand Proclamation of 1784”. And, the defendants further submit that the alleged offences had occurred on the sovereign territory of the Mohawk Grand River Nation, where there had been no consultation between the Ontario government and the Mohawk Grand River Nation that the Highway Traffic Act would apply on their sovereign territory and when there also had been no request for extradition of the defendants from one sovereign nation to another sovereign nation. In addition, the defendants contend that because they are sovereign persons from the sovereign Mohawk nation then the Highway Traffic Act would also not lawfully apply to them.

[82] The defendants also rely on the two unreasonable delay cases of R. v. Jordan, [2016] 1 S.C.R. 631, 2016 SCC 27 (S.C.C.) and R. v. Askov, 2016] 1 S.C.R. 631, 2016 SCC 27 (S.C.C.) to support their motion for dismissal of the charges against the defendants. The defendants submit that the R. v. Jordan case addresses the issue of timely justice and unreasonable delays, so that if the improper disclosure by Prosecutor Walsh of the waived disclosure causes delays, it might violate the principles established in this case. In addition, the defendants submit that the R. v. Askov case focuses on the right to be tried within a reasonable time, so that if the disclosure issue causes undue delay, it can be seen as prejudicial under the principles of this case.

[83] In R. v. Askov, 1990 45 (SCC), [1990] 2 S.C.R. 1199, Cory J. of the Supreme Court of Canada, had commented that both the interest of the individual accused and the inferential societal interest would be served by a change of venue if it resulted in a trial taking place within a reasonable time and that the section which provides for a change of venue guarantees that any changes of venue will not prejudice the accused and ensures that appropriate arrangements will be made in order to secure the fair transfer of persons and resources from one jurisdiction to another [emphasis is mine below]:

Both the interest of the individual accused and the inferential societal interest would be served by a change of venue if it resulted in a trial taking place within a reasonable time. If such were the result, then the change of venue would certainly be "expedient to the ends of justice" and fall within the category of changes envisioned by the section. The section itself provides the guarantees that any changes of venue will not prejudice the accused and ensures that appropriate arrangements will be made in order to secure the fair transfer of persons and resources from one jurisdiction to another. In those situations where a change of venue could be fairly and effectively completed, and yet is rejected by an accused, such a refusal would weigh against the accused in determining whether there had been an unreasonable delay.

[84] Notably, both Supreme Court cases that had been relied on by the defendants to support their contention, that the Provincial Offences Court in the City of Brantford lacks jurisdiction over the defendants Highway Traffic Act charges, are “unreasonable delay” Charter cases. The analysis for determining unreasonable delay in R. v. Askov 1990 45 (SCC), [1990] 2 S.C.R. 1199 (S.C.C.) was supplanted by R. v. Jordan, [2016] 1 S.C.R. 631, 2016 SCC 27, where a presumptive unreasonable delay ceiling of 18 months was established by the Supreme Court of Canada for matters in the Provincial Courts and 30 months in the Superior Courts. At the time these 18 pre-trial motions had been argued, the presumptive ceiling of 18 months for provincial courts had been exceeded, but a period of this delay is attributable to exceptional circumstances that is based on the complexity and volume of pre-trial motions and submissions made by the defendants. The complexity and the volume of pre-trial motions justify the time that the defendants’ case has taken and rebuts the presumption that the delay was unreasonable.

(1) The Defendants Contend That Treaties Between The British Colonial Government With Aboriginal Peoples Before 1867 Are Governed By International Rather Than Municipal Law

[85] The defendants also rely on a comment made by the Solicitor General for Canada, J.J. Curran, Q.C. on January 12, 1897, that stated, “WE CONTEND THAT THESE TREATIES ARE GOVERNED BY INTERNATIONAL, RATHER THAN MUNICIPAL LAW” [emphasis is mine below]:

FROM THE RECORDS OF THE FEDERAL – PROVINCIAL ARBITRATIONS (UNSETTLED ACCOUNTS ARBITRATION), INDIAN CLAIMS, ROBINSON TREATIES, VOL. 5, ENTERED IN THE DEPARTMENT OF INDIAN AFFAIRS, JANUARY 12, 1897:

THE HON. J. J. CURRAN, Q.C. , SOLICITOR GENERAL FOR CANADA:

WE CONTEND THAT THESE TREATIES ARE GOVERNED BY INTERNATIONAL, RATHER THAN MUNICIPAL LAW. THEY WERE MADE WITH THE TRIBES UNDER THE AUTHORITY OF THE SOVEREIGN, AND THE FAITH OF THE NATION WAS PLEDGED IN DEALING WITH THOSE ANNUITIES.

THE CROWN IS A TRUSTEE IN THOSE MATTERS, AND OCCUPIES A SPECIAL RELATIONSHIP TOWARDS THOSE INDIANS, AND IS BOUND TO WATCH OVER THEIR INTERESTS AND ENFORCE THEIR RIGHTS, AND WILL NOT BE ALLOWED TO SET UP ITS OWN LACHES AS A DEFENCE AGAINST THESE CLAIMS. ALL THESE CLAIMS ARE SAFEGUARDED IN A MANNER THAT IS QUITE A DIFFERENT MANNER FROM ANY CLAIM THAT WOULD ARISE BETWEEN TWO SUBJECTS OF HER MAJESTY WHO MIGHT COME BEFORE ANY COURT TO HAVE THEIR MATTERS ADJUDICATED UPON

(ARBITRATION TRANSCRIPT, P. 63)

NOTE (made in handwriting): LACHES - IN LAW, FAILURE TO DO A THING AT THE RIGHT TIME, IS INEXCUSABLE NEGLIGENCE.- SLACKNESS, NEGLIGENCE OR REMISSNESS

[86] The term “municipal law” that is used in the Solicitor General’s comments on January 12, 1897, had referred to the area of law that addresses internal matters of a state, including criminal justice, civil disputes, and regulatory issues; while international law deals with issues such as diplomatic relations, trade agreements, and global security. The statement by the Solicitor General for Canada, J.J. Curran, Q.C., on January 12, 1897, had been in reference to the Robinson Treaties and had involved land cession agreements with the First Nations people of Lake Huron and Lake Superior and the British Crown. The two agreements of the Robinson Treaties were signed in September of 1850 at Sault Ste. Marie, which had secured virtually for the British Crown the whole of the northwest area of Upper Canada for government use. Generally referred to as the Robinson-Huron Treaty, the agreement of September 9th, 1850 had called for the cession to the British Crown of the Lake Huron shoreline, including the islands, from Matchedash Bay to Batchewans Bay, and inland as far as the height of land. The agreement of September 7th, 1850, known as the Robinson-Superior Treaty, gave the British Crown the shoreline of Lake Superior, including islands, from Batchewana Bay to the Pigeon River, inland as far as the height of land. The first cession of First Nations’ territory contained 35,700 square miles of land, had been sold by a total Indian population of 1240; the latter cession of First Nations’ territory had been occupied by 1422 people and contained 16,700 square miles of territory.

[87] When the Solicitor General for Canada, J.J. Curran, Q.C., had made that comment on January 12, 1897, that the Robinson Treaties of 1850 were governed by international law, it had been the prevailing political view about the nature of these treaties when they were entered into between the British Crown and the various First Nations in pre-Confederation Canada. Furthermore, the British Crown had acquired or asserted sovereignty over French Canada by cession of Acadia (French possessions in what became the Maritime Provinces) by the Treaty of Utrecht in 1713 and by conquest of New France in 1759-60 and cession by the Treaty of Paris in 1763.

[88] The British Crown had also entered into treaties with different Indigenous groups in the British colonies of North America starting in 1701, which would later become parts of Canada. The treaties had supported peaceful, economic, and military relations. The Crown is the legal name for the British and later Canadian federal, provincial and territorial governments. Over the next 200 years, the Crown signed treaties that defined the respective rights of Indigenous peoples and European newcomers to use the North American lands that Indigenous peoples traditionally occupied. The historic treaties signed after 1763 provided large areas of land that were occupied by various First Nations, to the Crown, transferring their aboriginal title to their tradition land to the Crown in exchange for reserve lands and other benefits. The treaty-making process was formally established by the Royal Proclamation of 1763.

[89] However, before Canada repatriated its Constitution from the United Kingdom on April 17, 1982, some First Nations in Canada had challenged the legality of patriation and argued that Canada had lacked the authority to sever the relationship between their nations and the imperial Crown without their consent. First Nations from Alberta, New Brunswick, and Nova Scotia then sought judicial review from the U.K. Court of Appeal on whether the British Crown was still responsible for Indian peoples of Canada and their rights by virtue of centuries-old treaties. This question of whether the Crown in right of the United Kingdom or the Crown in right of Canada is responsible for the treaty and other responsibilities to Indians in Canada had been considered by the U.K. Court of Appeal in The Queen and The Secretary of State for Foreign and Commonwealth Affairs, Ex Parte: the Indian Association of Alberta, Union of New Brunswick Indians, Union of Nova Scotian Indians, [1982] 2 All E.R. 118 (C.A.).

[90] Lord Justice Denning, M.R. at pp. 123 and 127-129, in The Queen and The Secretary of State for Foreign and Commonwealth Affairs, Ex Parte: the Indian Association of Alberta, et al noted that the First Nations from Alberta, New Brunswick, and Nova Scotia were seeking a declaration that treaty or other obligations entered into by the Crown to the Indian peoples of Canada are still owed by Her Majesty in right of Her Government in the United Kingdom. Denning, M.R. held that as a result of the important constitutional change, that those treaty obligations with Indians of Canada, which were previously binding on the Crown simpliciter are now to be treated as divided and that they are to be applied to the dominion or province or territory to which they relate and that none of them is any longer binding on the Crown in respect of the United Kingdom. Denning, M.R. further explained that at the time when the Crown entered into the obligations under the 1763 proclamation or the treaties of the 1870s, the Crown was in constitutional law one and indivisible and its obligations were obligations in respect of the government of the United Kingdom as well as in respect of Canada. However, Denning, M.R. held that because the Crown is now separate and divisible, the obligations under the royal proclamation and the treaties are obligations of the Crown in respect of Canada and not obligations of the Crown in respect of the United Kingdom. As such, Denning M.R. indicated that it is not permissible for the Indian peoples to bring an action in this country to enforce those treaty obligations and that their only recourse is in the courts of Canada [emphasis is mine below]:

… They ask this court to make a declaration ‘that treaty or other obligations entered into by the Crown to the Indian peoples of Canada are still owed by Her Majesty in right of Her Government in the United Kingdom'.

This is disputed by the Department of State in the United Kingdom. When the matter was under consideration by the Foreign Affairs Committee of the House of Commons, the question was put to the Foreign and Commonwealth Office (Foreign Affairs Committee minutes of evidence (HC Papers (1979—80) no 362—xxi) p 63): 'Has the UK any treaty or other responsibilities to Indians in Canada?' The answer given by that office on November 1980 was: 'No. All relevant treaty obligations insofar as they still subsisted became the responsibility of the Government of Canada with the attainment of independence, at the latest with the Statute of Westminster 1931.'

The Indian peoples dispute that answer. In order to challenge it, they have brought these proceedings for judicial review. They seek declarations (i) that the answer is wrong in law, (ii) 'that treaties or other obligations entered into by the Crown to the Indian peoples of Canada are still owed by Her Majesty in right of Her Government in the United Kingdom'.

In 1930, by the British North America Act 1930, the United Kingdom Parliament gave the force of law to those agreements. It recognised that Canada was bound 'to fulfil its obligations under the treaties with the Indians of the Province' and that—

'the said Indians shall have the right, which the Province hereby assures to them, of hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access.'

This 1930 Act seems to me to recognise that the Crown had subsisting obligations to the Indians under the treaties. That is why it was necessary to have the agreements confirmed by the Parliament of the United Kingdom with the assent of the Queen.

The division of the Crown

Hitherto I have said that in constitutional law the Crown was single and indivisible. But that law was changed in the first half of this century, not by statute, but by constitutional usage and practice. The Crown became separate and divisible, according to the particular territory in which it was sovereign. This was recognised by the Imperial Conference of 1926 (Cmd 2768). It framed the historic definition of the status of Great Britain and the dominions as—

'autonomous Communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations.'

It was also agreed that—

'the Governor-General in a Dominion is the representative of the Crown holding in all essential respects the same position in relation to the administration of public affairs in a Dominion as is held by His Majesty the King in Great Britain and that he is not the representative or agent of His Majesty's Government in Great Britain or of any Department of that Government.'

(See Cmd 2768, pp 14, 16.)

Thenceforward the Crown was no longer single and indivisible. It was separate and divisible for each self-governing dominion or province or territory. …

As a result of this important constitutional change, I am of opinion that those obligations which were previously binding on the Crown simpliciter are now to be treated as divided. They are to be applied to the dominion or province or territory to which they relate: and confined to it. Thus the obligations to which the Crown bound itself in the royal proclamation of 1763 are now to be confined to the territories to which they related and binding only on the Crown in respect of those territories; and the treaties by which the Crown bound itself in 1875 are to be confined to those territories and binding on the Crown only in respect of those territories. None of them is any longer binding on the Crown in respect of the United Kingdom.

But the Crown, as I have said already, was separate and divisible.

9. The Statute of Westminster 1931

The Statute of Westminster 1931 gave considerable independence to the dominions. By s 4 it was enacted that no Act of Parliament of the United Kingdom was to extend to a dominion as part of the law of the dominion unless 'it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof'.

10. The Crown Proceedings Act 1947

In order that proceedings should be brought against the Crown in this country, it is necessary that the liability of the Crown should be a liability 'in respect of Her Majesty's a Government In the United Kingdom': see s 40(2)(c) of the Crown Proceedings Act 1947.

Now, at the time when the Crown entered into the obligations under the 1763 proclamation or the treaties of the 1870s, the Crown was in constitutional law one and indivisible. Its obligations were obligations in respect of the government of the United Kingdom as well as in respect of Canada: see Williants v Howarth [1905] AC 551. But, now that the Crown is separate and divisible, I think that the obligations under the proclamation and the treaties are obligations of the Crown in respect of Canada. They are not obligations of the Crown in respect of the United Kingdom. It is, therefore, not permissible for the Indian peoples to bring an action in this country to enforce these obligations. Their only recourse is in the courts of Canada.

[91] Furthermore, Lord Denning, M.R. at pp. 130-131, concluded there is nothing so far as he could see to warrant any distrust by the Indians of the government of Canada, as they will be able to say that their rights and freedoms have been guaranteed to them by the Crown, originally by the Crown in respect of the United Kingdom, now by the Crown in respect of Canada, but, in any case, by the Crown, and that their rights and freedoms should be honoured by the Crown in respect of Canada, ‘so long as the sun rises and river flows', and that promise must never be broken [emphasis is mine below]:

It seems to me that the Canada Bill itself does all that can be done to protect the rights and freedoms of the aboriginal peoples of Canada. It entrenches them as part of the constitution, so that they cannot be diminished or reduced except by the prescribed procedure and by the prescribed majorities. In addition, it provides for a conference at the highest level to be held so as to settle exactly what their rights are. That is most j important, for they are very ill-defined at the moment.

There is nothing, so far as I can see, to warrant any distrust by the Indians of the government of Canada. But, in case there should be, the discussion in this case will strengthen their hand so as to enable them to withstand any onslaught. They will be able to say that their rights and freedoms have been guaranteed to them by the Crown, originally by the Crown in respect of the United Kingdom, now by the Crown in respect of Canada, but, in any case, by the Crown. No parliament should do anything to lessen the worth of these guarantees. They should be honoured by the Crown in respect of Canada 'so long as the sun rises and river flows'. That promise must never be broken.

[92] In addition, Lord Justice Kerr, at pp. 130-137, in The Queen and The Secretary of State for Foreign and Commonwealth Affairs, Ex Parte: the Indian Association of Alberta et al, held that although the relevant agreements with the Indian peoples are known as 'treaties', they are not treaties in the sense of public international law. They were not treaties between sovereign states, so that no question of state succession arises. In addition, on the issue of whether treaty and other obligations entered into by the Crown to the Indian peoples of Canada are still owed by Her Majesty in right of Her Government in the United Kingdom, Kerr L.J. confirmed that the situs of obligations on the part of the Crown is to be found only in that territory within the realm of the Crown where such obligations can be enforced against a local administration. Moreover, Kerr L.J., reasoned that so far as rights and obligations in relation to the Indian peoples of Canada are concerned, the entire devolution of these from the Crown in right of what is now the United Kingdom to the Crown in right of the Dominion or provinces of Canada, is further confirmed by numerous Canadian enactments, both federal and provincial, culminating in the consolidated Indian Act 1970, which had derived its constitutional authority from s. 91(24) of the 1867 Act, which deals comprehensively with all matters concerning the Indian peoples. Accordingly, Kerr L.J. held that the devolution to Canada of all legislative and executive powers in this regard is therefore complete [emphasis is mine below]:

In connection with the 'repatriation' of the Canadian constitution, a number of statements have been made on behalf of Her Majesty's government in Parliament to the effect that all treaty obligations entered into by the Crown with the Indian peoples of Canada became the responsibility of the government of Canada with the attainment of independence, at latest with the Statute of Westminster 1931. The repatriation of the Canadian constitution is now proposed by means of the Canada Bill which is awaiting its second reading in the House of Commons. By ss 25 and 35 of the annexed Constitution Act 1982 the rights of the aboriginal peoples of Canada, including in particular of the Indian peoples, are expressly preserved. However, various Canadian Indian organisations, and perhaps all of them, are dissatisfied with the present situation. They contend that the government's conclusion as to the legal position is wrong. The applicants accordingly seek a declaration by way of judicial review to the effect that this conclusion is wrong in law and that all 'treaty and other obligations entered into by the Crown to the Indian peoples of Canada are still owed by Her Majesty in right of Her Government in the United Kingdom'.

We are here only directly concerned with the Indian organisations in the provinces of Alberta, New Brunswick and Nova Scotia. But on the voluminous material placed before us it is clear that the same considerations apply throughout Canada. Thus, the applicants rely on the royal proclamation of 1763 which purported to extend to the Indian peoples beyond those parts of eastern Canada, the Maritime Provinces and parts of Quebec, which had by then been opened up for settlement. They also rely on the pattern of the so-called 'treaties' concluded between the Crown and many Indian 'bands', which ultimately covered most of the territory of Canada, and to which most or all of the remaining Indians subsequently adhered. They contend that under all of these, whether made before or after the British North America Act 1867 which set up the Dominion of Canada, as well as under the royal proclamation, the Crown assumed obligations to the Indians in return for formal concessions of territory by the Indians, and that these obligations still subsist and have never been transferred to Canada.

As to the subsistence of these rights, we have been referred to many legislative

enactments and decisions of the courts in Canada in which the continuing binding effect of the proclamation and treaties has been recognised. Their binding effect has also been accepted before us by counsel on behalf of the Secretary of State and of the government of Canada as interveners in the proceedings, as well as in the Canada Bill mentioned above. However, the Indian peoples wish to achieve certain political objectives, viz a greater degree of recognition, and the right of consultation on those aspects of the constitution of Canada resulting from its 'repatriation' which may affect them. This is the object of these proceedings and of the declarations which they seek.

However great may be one's sympathy with the grievances and aspirations of the Indian peoples of Canada, this court can only concern itself with the decision of justiciable issues on the basis of law. The issue raised in the declarations which are sought, quite apart from any question whether this should be dealt with by any formal declaration, is in my view only justiciable as a matter of concession by the court, faced with the wish of the applicants to have it decided and of the respondents' non-objection to its decision. The reason is that the applicants are not asserting any breach of any of the obligations on the part of the Crown, and are a fortiori not asking for any relief or remedy in respect of such obligations. Indeed, it has been virtually conceded by counsel on behalf of the applicants, rightly in my view, that no such relief or remedy could be obtained in our courts; and for the reasons explained hereafter this factor is in itself a crucial pointer to the decision. In effect, however, the parties are agreed that this court should determine the abstract and bare issue as to the situs of obligations which are ultimately owed by the Crown, whether in right or respect of the United Kingdom on the one hand or of the Dominion or provinces of Canada on the other. Since we have heard full argument on this issue over several days, whereas the position in this respect was different before Woolf J who dismissed the application for other reasons, I think that we should express our views on this issue.

It is settled law that, although Her Majesty is the personal Sovereign of the peoples inhabiting many of the territories within the Commonwealth, all rights and obligations of the Crown, other than those concerning the Queen in her personal capacity, can only arise in relation to a particular government within those territories. The reason is that such rights and obligations can only be exercised and enforced, if at all, through some governmental emanation or representation of the Crown. Thus, the Crown Proceedings Act 1947 distinguishes between liabilities in respect of, and proceedings in right of, Her Majesty in the United Kingdom on the one hand and outside the United Kingdom on the other. In relation to the latter class, it is open to the Secretary of State under s 40(3) to issue a certificate which is conclusive for the purposes of that Act. This has not been done in the present case, though without prejudice to the Secretary of State's contention that the legal position of the Indian peoples of Canada has no connection with the Crown in right of the United Kingdom. It is accordingly necessary to examine the constitutional principles which determine the situs of the Crown's rights and obligations in this regard, but bearing in mind that, although the relevant agreements with the Indian peoples are known as 'treaties', they are not treaties in the sense of public international law. They were not treaties between sovereign states, so that no question of state succession arises.

The principles which govern the situs of rights and obligations of the Crown are conveniently summarised in 6 Halsbury’s Laws (4th edn) para 820, under the heading ‘Unity and Divisibility of the Crown'. For present purposes it is sufficient to refer to two passages and to a number of authorities cited in support of these.

First, as there stated, it is clear that—

'on the grant of a representative legislature, and perhaps even as from the setting up of courts, legislative council and other such structures of government, Her Majesty's government in a colony is to be regarded as distinct from Her Majesty's government in the United Kingdom.'

Thus, in R v Secretary of State for the Home Dept, ex p Bhurosah [1967] 3 All ER 831, (1968] QB 266 an issue arose as to passports issued in Mauritius, which was then a dependent British colony, on behalf of the Governor. The passports were issued 'in the name of Her Majesty' to persons who were British subjects and citizens of the United Kingdom and Colonies under s 1 of the British Nationality Act 1948. The issue was whether they were 'United Kingdom passports' within the Commonwealth Immigrants Act 1962. It was held that they were not, because, in effect, they had been issued in the name of Her Majesty in right of the government of Mauritius and not of the United Kingdom.

This being the position in relation to a dependent colony, the government of a dominion is clearly in an a fortiori position, and neither of these forms of established government within the Commonwealth presents any constitutional problem for present purposes. In times long past there was such a problem, when many of the territories which are now within the Commonwealth had not yet been opened up for settlement, or even fully discovered, and there was no established government on behalf of the Crown. Thus, the royal charter of 1670, granting Rupert's Land to the Hudson's Bay Company, described the territory as 'one of our Plantacions or Colonyes in America' and conveyed it 'as of our Mannor of East Greenwich in our County of Kent in free and common Soccage'. This was clearly a Crown grant in right of the government here. Subsequently, as the overseas territories gradually came to be settled and colonised, there may have been an indeterminate and intermediate stage of constitutional development in many cases, when it was uncertain whether rights and obligations concerning the overseas territory arose in right or respect of the Crown here or of the emerging forms of local administration overseas. This may still have been the position at the time of the eighteenth century 'Maritime Treaties' and of the royal proclamation of 1763, although all these contain references to the then emerging colonial governments of what later became the eastern provinces of Canada and the eastern states of America. However, for the

reasons explained hereafter, it is unnecessary to determine what was the resulting situs of the rights and obligations of the Crown in these territories at that time, since the subsequent constitutional development of Canada in my view puts the present issue a beyond doubt.

The second relevant principle stated in the same passage in Halsbury's Laws is that—

'the liabilities of the Crown in right of, or under the laws of, one of the Crown's territories can be satisfied only out of the revenues, and by the authority of the legislature, of that territory.'

In effect, the situs of obligations on the part of the Crown is to be found only in that territory within the realm of the Crown where such obligations can be enforced against a local administration. A nineteenth century illustration of this principle in relation to Canada, which is interesting because the case was decided before the British North America Act 1867, was Re Holmes (1861) 2 John & H 527, 70 ER 1167. This concerned disputes arising out of certain lands vested in the Crown, in the then Province of Upper Canada, in relation to which a petition of right was brought in the Court of Chancery here. It was held by Page Wood V-C that, whether or not the Crown was a trustee of the land, the situs of any resulting rights and obligations lay in Canada and that these were only enforceable there. He said (2 John & H 527 at 543, 70 ER 1167 at 1174): … 'as the holder of Canadian land for the public purposes of Canada, the Queen should be considered as present in Canada, and out of the jurisdiction of this Court.' In other words, any resulting rights and obligations existed only in right or respect of the Crown in what was then Upper Canada, and not