BETWEEN:
CARTER RUSSELL
and
THE ATTORNEY GENERAL OF CANADA
Heard at Toronto, Ontario, on November 1, 2006.
Judgment delivered at Ottawa, Ontario, on December 1, 2006.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: LINDEN J.A.
NADON J.A.
Docket: A-452-05
Citation: 2006 FCA 393
CORAM: LINDEN J.A.
NADON J.A.
EVANS J.A.
BETWEEN:
LABRADOR MÉTIS NATION and
CARTER RUSSELL
Appellants
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
A. INTRODUCTION
[1] The question to be decided in this appeal is whether the Crown’s duty to consult an aboriginal community before a decision is made which may adversely affect lands subject to an aboriginal claim applies when the Attorney General stays a private prosecution.
[2] The prosecution in question had been instituted in the Provincial Court of Newfoundland and Labrador by a member of the Labrador Métis Nation (“the appellants”) against the Province of Newfoundland and Labrador. The informations alleged that the Province’s construction of bridges and a causeway over rivers, where the appellants claimed an aboriginal right to fish for salmon, contravened the Fisheries Act by damaging fish habitat and obstructing the river flow.
[3] The appellants argue that, if the Province were found guilty, it could be ordered to cease activities that constitute a repetition or continuation of the offences and to take remedial action. They say that their right to be consulted is an existing aboriginal right recognized in subsection 35(1) of the Constitution Act, 1982, and that this distinguishes the present case from others in which litigants have unsuccessfully attempted to impose legal limits on the Attorney General’s exercise of prosecutorial discretion and to subject it to judicial review.
[4] I disagree. In my opinion, the Attorney General had no duty to consult the appellants before staying the criminal proceedings initiated on their behalf. First, there is only a remote causal connection between the decision from which the right to be consulted is said to arise, and damage to lands subject to an aboriginal claim. Second, it is a constitutional principle that the Attorney General acts independently when making decisions to prosecute, or to stay a prosecution, and that, save for the most exceptional circumstances, the Attorney General is accountable in these matters, not to the courts, but to Parliament.
[5] Accordingly, I would dismiss the appeal.
B. FACTUAL BACKGROUND
[6] The bridges and causeway in question were built as Phase II of the construction of the Trans-Labrador Highway. A bridge and a causeway on the St. Lewis River, and a bridge on the Paradise River carry the highway across these rivers where the appellants claim an aboriginal right to fish for salmon for harvesting, cultural and ceremonial purposes.
[7] The Crown was aware of the appellants’ claim of aboriginal rights over the fishery and title to the surrounding land. In May 2003, a Fisheries Management Agreement between the appellants was renewed a year after its inception. The Agreement includes the St. Lewis and Paradise Rivers, and provides for the appointment of members of the appellants to be Aboriginal Fisheries Guardians for these rivers, with responsibility for monitoring activities which may be harmful to fish and fish habitats in Labrador.
[8] Carter Russell, a member of the appellants, swore informations against the Province in September 2003, alleging that the construction of the river crossings has resulted in damage to fish habitat, and in the substantial blocking of the flow of the rivers, contrary to sections 26 and 35 of the Fisheries Act. Informations were also sworn against the construction company which built the crossings. However, these were subsequently withdrawn and the appellants no longer wish to proceed against the company. Consequently, these reasons deal only with the prosecution of the Province.
[9] In October 2003, the appellants delivered to the Federal Prosecution Service (“FPS”) copies of the informations, as required by paragraph 507.1(3)(b) of the Criminal Code, in order to give the Attorney General an opportunity to intervene.
[10] The appellants also submitted a detailed evidence brief supporting their case and requested the Attorney General to assume carriage of the prosecution or to permit the private prosecution to continue. The brief stated, among other things, that the appellants’ concerns about the river crossings had been ignored or disregarded by the provincial and federal authorities with whom they had been raised. The brief also included written statements by the Aboriginal Fisheries Guardians for the area supporting the prosecution, on the ground that the construction of the crossings had harmed the fishery.
[11] The FPS agreed to consider this material and to assess the viability of the prosecution. From the time of the submission of the evidence brief in October 2003 until June 2004, counsel for the appellants corresponded with counsel for the Attorney General, urging that the prosecution be permitted to continue. The Attorney General asked for more time to consider his position and to gather further information from Fisheries and Oceans Canada.
[12] In a letter dated June 8, 2004, the appellants were advised that the Attorney General had decided not to take over the prosecution, and that if the appellants proceeded with the private prosecution, he would intervene to stay it, since there was insufficient evidence to proceed, and a prosecution was not in the public interest. The letter also indicated Crown counsel’s view of the defences available to the Province against the charges: the fact that, despite the obstruction of the river, there was appropriate migration access, and conditional authorizations had been issued by Fisheries and Oceans Canada pursuant to subsection 35(2) of the Fisheries Act for works or undertakings affecting fish habitat.
[13] Counsel for the appellants replied in a letter dated June 30, 2004, requesting the Attorney General to reconsider the decision, on the ground that it appeared from the letter of June 8, 2004, that the evidence and the charges had been misconstrued. The appellants also submitted that Mr Russell was willing to continue the prosecution and that he had the support of the appellants and the assistance of experienced counsel.
[14] However, without further explanation, the Crown advised the appellants in a letter of July 30, 2004, that the Attorney General had decided to intervene in the prosecution and to stay it.
C. DECISION OF THE FEDERAL COURT
[15] The appellants made an application for judicial review to the Federal Court requesting that the stay issued by the Attorney General be set aside or, in the alternative, that the matter be remitted to the Attorney General for re-determination. Justice Blais dismissed the application. His decision is reported as Labrador Métis Nation v. Canada (Attorney General) (2005), 276 F.T.R. 219, 2005 FC 939.
[16] He held, first, that the Attorney General owed no legal duty to consult with the appellants, since this would subject the exercise of prosecutorial discretion to inappropriate influence. Second, the Attorney General had stayed the prosecution after considering both the evidence, including that submitted by the appellants, and the public interest. The Attorney General has a very broad discretion in deciding whether to stay criminal proceedings, with which the courts may interfere only in the most exceptional cases of flagrant impropriety or in actions for malicious prosecution: Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372, 2002 SCC 65 at para. 49. There were no grounds for suggesting any such impropriety on the facts of this case. Third, no duty to consult with the appellants arose in this case because the decision to stay the prosecution could not affect any aboriginal rights to the salmon fishery and surrounding land.
D. LEGISLATIVE FRAMEWORK
[17] The provisions of the Fisheries Act, R.S.C. 1985, c. F-14, relevant to this appeal are as follows:
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26. (1) One-third of the width of any river or stream and not less than two-thirds of the width of the main channel at low tide in every tidal stream shall be always left open, and no kind of net or other fishing apparatus, logs or any material of any kind shall be used or placed therein.
…
35. (1) No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.
(2) No person contravenes subsection (1) by causing the alteration, disruption or destruction of fish habitat by any means or under any conditions authorized by the Minister or under regulations made by the Governor in Council under this Act.
79.2 Where a person is convicted of an offence under this Act, in addition to any punishment imposed, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order containing any one or more of the following prohibitions, directions or requirements: (a) prohibiting the person from doing any act or engaging in any activity that may, in the opinion of the court, result in the continuation or repetition of the offence; (b) directing the person to take any action the court considers appropriate to remedy or avoid any harm to any fish, fishery or fish habitat that resulted or may result from the commission of the offence;
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26. (1) Un tiers de la largeur des cours d’eau et au moins les deux tiers à marée basse de la largeur du chenal principal des courants de marée doivent toujours être laissés libres; il est interdit d’y employer ou d’y placer des filets ou autres engins de pêche, des grumes de bois ou des matériaux de quelque nature que ce soit.
[…]
35. (1) Il est interdit d’exploiter des ouvrages ou entreprises entraînant la détérioration, la destruction ou la perturbation de l’habitat du poisson.
(2) Le paragraphe (1) ne s’applique pas aux personnes qui détériorent, détruisent ou perturbent l’habitat du poisson avec des moyens ou dans des circonstances autorisés par le ministre ou conformes aux règlements pris par le gouverneur en conseil en application de la présente loi.
79.2 En plus de toute peine infligée et compte tenu de la nature de l’infraction ainsi que des circonstances de sa perpétration, le tribunal peut rendre une ordonnance imposant à la personne déclarée coupable tout ou partie des obligations suivantes : a) s’abstenir de tout acte ou toute activité risquant d’entraîner, à son avis, la continuation de l’infraction ou la récidive; b) prendre les mesures qu’il estime justes pour réparer ou éviter les dommages aux poissons, aux pêcheries ou à l’habitat du poisson résultant ou susceptibles de résulter de la perpétration de l’infraction;
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[18] The provisions of the Criminal Code, R.S.C. 1985, c. C-46, relating to private prosecutions and the powers of the Attorney General relevant to this appeal are as follows:
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504. Any one who, on reasonable grounds, believes that a person has committed an indictable offence may lay an information in writing and under oath before a justice, and the justice shall receive the information, where it is alleged (a) that the person has committed, anywhere, an indictable offence that may be tried in the province in which the justice resides, and that the person (i) is or is believed to be, or (ii) resides or is believed to reside, within the territorial jurisdiction of the justice; (b) that the person, wherever he may be, has committed an indictable offence within the territorial jurisdiction of the justice;
579. (1) The Attorney General or counsel instructed by him for that purpose may, at any time after any proceedings in relation to an accused or a defendant are commenced and before judgment, direct the clerk or other proper officer of the court to make an entry on the record that the proceedings are stayed by his direction, and such entry shall be made forthwith thereafter, whereupon the proceedings shall be stayed accordingly and any recognizance relating to the proceedings is vacated.
…
579.1 (1) The Attorney General of Canada or counsel instructed by him or her for that purpose may intervene in proceedings in the following circumstances: (a) the proceedings are in respect of a contravention of, a conspiracy or attempt to contravene or counselling the contravention of an Act of Parliament or a regulation made under that Act, other than this Act or a regulation made under this Act; (b) the proceedings have not been instituted by an Attorney General; (c) judgment has not been rendered; and (d) the Attorney General of the province in which the proceedings are taken has not intervened.
(2) Section 579 applies, with such modifications as the circumstances require, to proceedings in which the Attorney General of Canada intervenes pursuant to this section. |
504. Quiconque croit, pour des motifs raisonnables, qu’une personne a commis un acte criminel peut faire une dénonciation par écrit et sous serment devant un juge de paix, et celui-ci doit recevoir la dénonciation, s’il est allégué, selon le cas : a) que la personne a commis, en quelque lieu que ce soit, un acte criminel qui peut être jugé dans la province où réside le juge de paix et que la personne : (i) ou bien se trouve ou est présumée se trouver, (ii) ou bien réside ou est présumée résider, dans le ressort du juge de paix; b) que la personne, en quelque lieu qu’elle puisse être, a commis un acte criminel dans le ressort du juge de paix;
579. (1) Le procureur général ou le procureur mandaté par lui à cette fin peut, à tout moment après le début des procédures à l’égard d’un prévenu ou d’un défendeur et avant jugement, ordonner au greffier ou à tout autre fonctionnaire compétent du tribunal de mentionner au dossier que les procédures sont arrêtées sur son ordre et cette mention doit être faite séance tenante; dès lors, les procédures sont suspendues en conséquence et tout engagement y relatif est annulé.
[…]
579.1 (1) Le procureur général du Canada ou le procureur mandaté par lui à cette fin peut, si les circonstances suivantes sont réunies, intervenir dans toute procédure : a) concernant une contravention à une loi fédérale autre que la présente loi ou à ses règlements d’application, une tentative ou un complot en vue d’y contrevenir ou le fait de conseiller une telle contravention; b) qui n’a pas été engagée par un procureur général; c) où le jugement n’a pas été rendu; d) à l’égard de laquelle n’est pas intervenu le procureur général de la province où les procédures sont engagées.
2) L’article 579 s’applique, avec les adaptations nécessaires, aux procédures dans lesquelles le procureur général du Canada intervient en vertu du présent article.
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[19] The appellants rely on section 35 of the Constitution Act, 1982 to found their right to be consulted.
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35.(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.
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35.(1) Les droits existants — ancestraux ou issus de traités — des peuples autochtones du Canada sont reconnus et confirmés.
(2) Dans la présente loi, « peuples autochtones du Canada » s'entend notamment des Indiens, des Inuit et des Métis du Canada. |
E. ANALYSIS
[20] The Supreme Court of Canada has emphasized the fundamentally important nature of the Crown’s duty to consult an aboriginal community before a governmental decision is made, or action taken, which may adversely affect lands or resources over which a credible aboriginal claim is asserted.
[21] In Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73 at para. 35, it was held that the Crown’s duty to consult arises from the honour of the Crown and is triggered when three elements are present: a credible claim for an aboriginal right or title, whether or not established; actual or constructive government knowledge of the claim; and conduct that may adversely affect the subject matter of the aboriginal right or title. In the present case, only the third element is in dispute.
[22] The function of the duty to consult is to protect aboriginal rights and interests that potentially could be proved and to ensure that the aboriginal community has a say in the matter during the process of reconciliation of interests, however long that may take. It seeks to avoid the potential injustice that “[w]hen the distant goal of proof is finally reached, the Aboriginal peoples may find their land and resources changed and denuded”: Haida Nation at para. 33 (per McLachlin C.J.).
[23] The duty to consult has been found to arise before a governmental actor takes a decision authorizing conduct that may directly impinge on aboriginal claims of which the Crown is aware. Thus, in Haida Nation, the duty to consult attached to a decision to grant a commercial tree farm licence on land subject to a claim for aboriginal title. Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550, 2004 SCC 74, and Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388, 2005 SCC 69, both concerned decisions to construct roads which, it was said, would adversely affect the aboriginal rights or title claimed.
[24] In my view, however, the Attorney General’s stay of a prosecution is very different from the decisions in the above cases to which the duty to consult attached: they all had a much more direct impact on claimed underlying aboriginal rights than is the case here. For the Attorney General to take over the prosecution, or to allow a private prosecution to proceed, would not in itself protect the aboriginal right claimed over the fishery. This would depend on two other decisions that are not within the control of the Crown: a finding by the court that the Province was guilty as charged, and that it was appropriate to impose on the Province, as part of the penalty, an order requiring it to widen the river flow and remediate the damage to the fish habitat.
[25] The appellants do not argue here that the right to be consulted applies to the decision to build the river crossings under Phase II of the construction of the Trans-Labrador Highway. Indeed, although the appellants had expressed some concern about the lack of consultation before the construction, they did not institute litigation alleging a breach of the duty to consult. The proposal to build Phase II was subject to environmental assessments prepared pursuant to provincial and federal legislation. Public consultations were held in connection with these assessments.
[26] In contrast, the appellants have successfully argued in the Newfoundland and Labrador Supreme Court – Trial Division that the Crown breached its duty to consult with respect to the decision to construct Phase III of the Trans-Labrador Highway: Labrador Métis Nation v. Newfoundland and Labrador (Minister of Transportation and Works), 2006 NLTD 119.
[27] Any adverse effects on the aboriginal rights or title claimed over the fishery result principally from the decision of the agents of the Crown who constructed the highway contrary to the approved plans, and not from the issue of the stay by the Attorney General. The appellants do not argue that they have an aboriginal right to prosecute for offences involving conduct that is injurious to an aboriginal claim.
[28] In Mikisew Cree First Nation, Binnie J. said (at para. 34) that the threshold to be crossed in order to establish that a decision might adversely affect aboriginal rights is low:
The flexibility lies not in the trigger (“might adversely affect it”) but in the variable content of the duty once triggered. At the low end, “the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice” (Haida Nation, at para. 43).
[29] Nonetheless, in my opinion, the very tenuous nature of the connection between the issue of the stay and damage to aboriginal rights is insufficient to support a duty to consult. Any doubts on this score are put to rest by the constitutional principle that the Attorney General must exercise the prosecutorial functions of the office in an independent manner and, for most practical purposes, free from judicial review. These issues are fully canvassed in the reasons of Justice Blais at paras. 24-31.
[30] It is disingenuous to suggest in this context that the imposition of a procedural duty to consult cannot affect the Attorney General’s independent exercise of power. The duty to consult goes hand in hand with a duty to accommodate: Haida Nation at para. 32. The Attorney General’s exercise of discretion over prosecutions should not become the subject of negotiation with some interested parties.
[31] The appellants rely on the Federal Prosecution Service Deskbook (Ottawa: Department of Justice Canada, March 2005), Part V, chapter 15.3.2.1, which states that, in determining whether the public interest warrants prosecution under, for example, the Fisheries Act, Crown counsel should consider the views of the investigative agency “where the offence provisions serve important regulatory goals.” It continues:
The need to understand the particular regulatory context underscores the obligation of Crown counsel to consult in carrying out counsel’s duties under this policy.
[32] However, there is a big difference between a manual’s recognition that counsel has a “duty to consult” and the imposition by the Court of a legal obligation to consult. Nor, in my view, is there a legitimate expectation on the part of the appellants that they would be consulted before the stay was issued: the only “duty to consult” referred to in the Deskbook is with other governmental actors, not private individuals.
[33] The appellants also refer on the Fisheries Management Agreement, which provides that the Fisheries and Oceans Canada and the appellants “shall consult from time to time at the request of each other on all matters arising out of this Agreement”. However, in my view, this provision does not extend to a decision by the Attorney General as to whether to stay a private prosecution for conduct affecting the rivers covered by the Agreement.
[34] Compliance and Enforcement Policy for the Habitat Protection and Pollution Prevention Provisions of the Fisheries Act, (Ottawa: Environment Canada, November 2001) names the Attorney General of Canada as one of the authorities responsible for implementing these provisions of the Fisheries Act (at 10). However, in describing the Attorney General’s responsibility for all litigation arising under the Fisheries Act, the document does not mention consultation before the Attorney General’s powers are exercised.
[35] I would also note that the appellants put evidence and submissions before the FPS in support of their position that the prosecution should proceed, and responded to the FPS’s views on the weaknesses in the prosecution. Whether this would satisfy the minimum content of the duty to consult, I do not have to decide. Nonetheless, the appellants cannot say that the Attorney General issued the stay without being fully informed of their position. The appellants also concede that, apart from the failure to consult, the facts do not warrant the conclusion that the issue of the stay was reviewable as a flagrant impropriety on the part of the Attorney General.
[36] Finally, counsel for the Crown took exception to the comment of Justice Blais that it was inappropriate for the Crown to be represented in this litigation by the Department of Justice lawyer who had both signed the stay as agent for the Attorney General and written the letter informing the appellants of the decision to stay and indicating its bases.
[37] Some context to this aspect of the case was supplied by counsel for the appellants, who observed that the lawyer in question appears to have taken personally their criticism of the letter of decision which he wrote. There also seem to have been angry exchanges before Justice Blais.
[38] The Crown’s right to be represented in judicial review proceedings by counsel of its choice is not defeated simply because the lawyer chosen had signed, or was closely involved in, the decision under review. However, if accurate, the allegations respecting the reaction of Crown counsel in the present case suggest that the Crown should carefully consider whether, in light of all the circumstances, it is in the interests of justice that it be represented by that lawyer. While it may often be very convenient for the Crown to select as counsel the Department of Justice lawyer who is most knowledgeable about the issues, the Crown has ample legal talent available to it.
[39] On the basis of the limited information put before us, I would not go further in pronouncing on the merits of Justice Blais’ comments in the context of this case.
F. CONCLUSION
[40] For these reasons, I would dismiss the appeal with costs.
“I agree
A.M. Linden J.A.”
“I agree
M. Nadon J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-452-05
STYLE OF CAUSE: LABRADOR MÉTIS NATION and CARTER RUSSELL v. THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 1, 2006
REASONS FOR JUDGMENT BY: EVANS J.A.
NADON J.A.
APPEARANCES BY:
Mr. Robert V. Wright
Mr. Justin S. Duncan FOR THE APPELLANTS
Mr. Robert J. Frater FOR THE RESPONDENT
SOLICITORS OF RECORD:
Sierra Legal Defence Fund
Toronto, Ontario FOR THE APPELLANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
Date: 20061201
Docket: A-452-05
Ottawa, Ontario, December 1, 2006
CORAM: LINDEN J.A.
NADON J.A.
EVANS J.A.
BETWEEN:
LABRADOR MÉTIS NATION and
CARTER RUSSELL
Appellants
and
THE ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT
The appeal is dismissed with costs.
"A.M. Linden"
J.A.