Ontario Federation of Anglers and Hunters v. Ontario (Natural Resources and Forestry), 2017 ONSC 518

CITATION: Ontario Federation of Anglers and Hunters v. Ontario (Natural Resources and Forestry), 2017 ONSC 518

DIVISIONAL COURT FILE NO.: 318/15

DATE: 20170131

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Ontario Federation of Anglers and Hunters and Angelo lombardo, Applicants/Moving Parties

AND

MINISTER OF NATURAL RESOURCES AND FORESTRY AND THE MISSISSAUGAS OF ALDERVILLE FIRST NATION, THE BEAUSOLEIL FIRST NATION, THE CHIPPEWAS OF GEORGINA ISLAND FIRST NATION, THE MNJIKANING FIRST NATION, THE CURVE LAKE FIRST NATION, THE HIAWATHA FIRST NATION AND THE MISSISSAUGAS OF SCUGOG ISLAND FIRST NATION, Respondents/Responding Parties

BEFORE: Kiteley, Swinton and Ramsay JJ.

COUNSEL: Timothy S. B. Danson and Marjan Delavar, for the Applicants/Moving Parties

Sara Blake, Lisa La Horey, and Padraic Ryan, for the Respondent Minister/Responding Party

William Henderson and Ceyda Turan, for the Respondent Williams Treaties First Nations/Responding Parties

HEARD at Toronto: January 17 and 18, 2017

ENDORSEMENT

Swinton J.:

[1] The Ontario Federation of Anglers and Hunters (“OFAH”) and Angelo Lombardo have brought a motion pursuant to s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 to set aside an order of Sachs J. dated May 2, 2016, in which she granted a motion brought by the respondent Minister of Natural Resources and Forestry to quash their application for judicial review and notice of constitutional question.

[2] The background of this application for judicial review is set out in detail in the reasons of the motions judge (see 2016 ONSC 2806). Essentially, the applicants seek declaratory relief with respect to the Minister’s decision, set out in a letter dated October 30, 2012, to apply the Interim Enforcement Policy (“IEP”) to the respondent Williams Treaties First Nations (“WTFN”) in the Treaty 20 area. The IEP is a policy that gives guidance to conservation officers in the exercise of their prosecutorial discretion when they enforce hunting and fishing laws against Aboriginal individuals who claim treaty rights or Aboriginal rights to hunt and fish for personal consumption, social or ceremonial purposes. Individuals who have Aboriginal and treaty rights guaranteed by s. 35 of the Constitution Act, 1982 will not be subject to enforcement, subject to certain exceptions – for example, to protect against unsafe hunting or to protect conservation objectives.

[3] The Minister decided to apply the IEP to the Treaty 20 area because of the position it has taken in litigation brought by the WTFN in the Federal Court against the federal and provincial Crowns (the Alderville action). At the commencement of the trial in 2012, Ontario indicated its position that the 1923 Williams Treaties had not extinguished all of the WTFN’s pre-existing treaty rights, such as harvesting rights under Treaty 20, an 1818 treaty.

[4] The applicants seek declarations with respect to the application of the IEP to the WTFN and with respect to the constitutional validity of the IEP. They argue that Ontario must follow the decision of the Supreme Court of Canada in R. v. Howard, 1994 86 (SCC), [1994] 2 S.C.R. 299, which held that the Treaty 20 rights had been extinguished by the Williams Treaties.

[5] The motions judge found that the decision OFAH sought to review was an exercise of prosecutorial discretion, and it was plain and obvious that an exercise of prosecutorial discretion is not justiciable, subject to an exception where there has been flagrant impropriety or an abuse of process. She held that the Minister’s decision with respect to the IEP did not constitute an abuse of process of the kind that would justify court intervention. She also held that it was plain and obvious that the argument based on s. 15 of the Canadian Charter of Rights and Freedoms was bound to fail. OFAH has no standing to bring such a claim, while the application of the IEP had no effect on the legal rights of Mr. Lombardo, and so his claim of racial discrimination was bound to fail. She also held that s. 15(2) was a full answer to the claim.

[6] Before the motions judge and before this Court on what is essentially a pleadings motion are the notice of application for judicial review and the notice of constitutional question. As well, the Court can have reference to the decision letter of the Minister, including the IEP and an accompanying map, which constitute the decision under attack.

[7] The Court on a motion to set aside under s. 21(5) does not hear the motion de novo. To do so would be a waste of judicial resources. Instead, the Court asks whether there has been an error of law or a palpable and overriding error of fact (Marsden v. The Queen, 2012 ONSC 6118 (Div. Ct.) at para. 2; Stamm Investments Ltd. v. Ryan, 2016 ONSC 6293 at paras. 9-10).

[8] I see no error on the part of the motions judge. She correctly held that it is plain and obvious that the application for judicial review seeks the court’s ruling on an exercise of prosecutorial discretion, and such an exercise of discretion is not justiciable, absent an abuse of process. I agree with her conclusion and adopt her reasons on this issue.

[9] She was also correct when she stated that Carter v. Canada (Attorney General), 2015 SCC 3 does not apply to the Minister’s policy decision with respect to the application of the IEP to the Treaty 20 lands.

[10] Neither R. v. Catagas, 1977 1636 (MB CA), [1977] M.J. No. 73 (C.A.) nor R. v. Armstrong, 2012 BCCA 242 are applicable in this case. In both cases, an individual charged with an offense claimed that the prosecution was an abuse of process because of a policy concerning prosecution of Aboriginal offenders. There have been no charges against the OFAH or Mr. Lombardo, and they have not pleaded abuse of process. As the British Columbia Court of Appeal stated in Armstrong, abuse of process does not arise just because the prosecutor has chosen not to prosecute someone else (at paras. 30, 37).

[11] With respect to the s. 15 claim, I see no error in the motions judge’s conclusion that it is plain and obvious that Mr. Lombardo’s claim would fail. In order to prove a violation of s. 15(1), the claimant must show that the IEP treats him differently on the basis of race, and that such treatment is discriminatory in that it perpetuates arbitrary disadvantage (Kahkewistahaw v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548 at para. 18). Mr. Lombardo has not pleaded sufficient facts to show an arguable case, because the application of the IEP does not alter his rights, impose a burden on him, or deny him a benefit because of his race. Therefore, he has not demonstrated that he has been treated differently on the basis of race, nor that he has been the subject of discriminatory treatment within the meaning of the s. 15(1) jurisprudence. His argument that he may be subject to a Sparrow conservation allocation is speculative.

[12] Given my conclusion with respect to s. 15(1), I need not deal with the argument that the motions judge erred in applying s. 15(2).

[13] In sum, I see no basis to interfere with the motions judge’s decision. However, I would add a further ground to support the conclusion that it is plain and obvious that the application will fail. The Minister argued before the motions judge that the Divisional Court has no jurisdiction to grant the relief sought because it does not relate to the exercise of any statutory power. The motions judge did not deal with this issue.

[14] Subsection 2(1)2 of the Judicial Review Procedure Act, R.S.O.1990, c. J.1 provides that declaratory relief is available “in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.” The relief sought by the applicants does not relate to the exercise of any statutory power. A statutory power is defined in s. 1 as

… a power or right conferred by or under a statute,

(a) to make any regulation, rule, by-law or order, or to give any other direction having force as subordinate legislation,

(b) to exercise a statutory power of decision,

(c) to require any person or party to do or to refrain from doing any act or thing that, but for such requirement, such person or party would not be required by law to do or to refrain from doing,

(d) to do any act or thing that would, but for such power or right, be a breach of the legal rights of any person or party …

[15] The only paragraph of the definition which might apply in the present application is paragraph (b), as the policy was not a regulation, rule, by-law, order or other form of subordinate legislation. Paragraphs (c) and (d) do not apply, as the IEP does not require the applicants to do or refrain from doing any act nor breach any of their legal rights.

[16] “Statutory power of decision” is also a defined term in s. 1. It means

… a power or right conferred by or under a statute to make a decision deciding or prescribing,

(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or

(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not,

and includes the powers of an inferior court.

[17] In the present case, the Minister was not exercising a power or right conferred under a statute to decide or prescribe rights or eligibility when he decided to apply the IEP to the WTFN. He made a policy decision respecting enforcement of legislation in a certain geographic region. Most importantly, he did not make a decision affecting the rights of OFAH or Mr. Lombardo. The policy does not stop OFAH’s members from continuing to hunt and fish in accordance with applicable laws. As the Court of Appeal stated in Perry v. Ontario (1997), 1997 2004 (ON CA), 33 O.R. (3d) 705, “the IEP was not a law or determination of the legal rights of any person in relation to hunting and fishing.” Rather, the IEP is a ministerial guideline giving advice to conservation officers (at para. 64). Accordingly, the declaratory relief sought in this application with respect to the IEP is not available, and the application for judicial review is bound to fail on this basis as well.

[18] In conclusion, the motion to set aside is dismissed. The parties have agreed on the quantum of costs. Costs to the Minister and to the WTFN are fixed at $10,000 each, payable within 30 days.

Swinton J.

I agree _______________________________

Kiteley J.

I agree _______________________________

Ramsay J.

Date: January 31, 2017