and

The Attorney General of Quebec, the Attorney General of Nova Scotia, the Attorney General of British Columbia and the Attorney General for Alberta Interveners

INDEXED AS: R. v. FRANCIS

File No.: 19256.

1988: February 23; 1988: May 26.

Present: Dickson C.J. and Beetz, Estey*, McIntyre, Lamer, Wilson, Le Dain, La Forest and L’Heureux-Dubé JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR NEW BRUNSWICK

Constitutional law — Indians — Paramountcy — Highway traffic regulation on reserves — Conviction under provincial legislation for offence occurring on Indian reserve — Provincial legislation not inconsistent with federal regulations — Whether or not provincial legislation applicable — Motor Vehicle Act, R.S.N.B. 1973, c. M-17, s. 167(b) — Indian Act, R.S.C. 1970, c. I-6, ss. 73(1)(c), 88 — Indian Reserve Traffic Regulations, C.R.C. 1978, c. 959, s. 6.

Indians — Reserves — Highway traffic regulation on reserves — Provincial legislation not inconsistent with federal regulations — Whether or not provincial legislation applicable.

Appellant, who was convicted under s. 167(b) of the New Brunswick Motor Vehicle Act for a traffic offence that occurred on an Indian reserve, raised the argument that he could only be charged and convicted under s. 6 of the Indian Reserve Traffic Regulations. Both the Court of Queen’s Bench and the Court of Appeal dismissed appellant’s appeal from conviction. The constitutional questions stated by this Court queried: (1) whether s. 167(b) of the New Brunswick Motor Vehicle Act was constitutionally applicable to the regulation and control of the operation of motor vehicles on an Indian reserve, and if so, (2) whether s. 167(b) of the Motor Vehicle Act was in conflict with the Indian Reserve Traffic Regulations and therefore inoperative to the extent of the conflict.

Held: The appeal should be dismissed. The first constitutional question should be answered in the affirmative and the second in the negative.

In the absence of conflicting federal legislation, provincial motor vehicle laws of general application apply ex proprio vigore on Indian reserves. To hold otherwise would amount to resuscitating the “enclave” theory.

Section 6 of the Indian Reserve Traffic Regulations incorporates by reference or adopts provincial traffic regulations as federal laws. The provincial law, nevertheless, can operate in its own right for federal and provincial laws that merely duplicate one another but do not conflict can exist side by side. Neither the incorporation by reference nor the enactment of a separate penalty for breach of the federal regulations establish a sufficient intent on the part of the federal government that it wished to cover the field exclusively.

Cases Cited

Applied: Cardinal v. Attorney General of Alberta, [1974] S.C.R. 695; overturned: R. v. Kenny (1982), 20 Sask. R. 361, [1983] 1 W.W.R. 284 (Q.B.), aff’d (1983), 36 Sask. R. 280 (C.A.); referred to: Four B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031; Kruger v. The Queen, [1978] 1 S.C.R. 104; Dick v. The Queen, [1985] 2 S.C.R. 309; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; R. v. Twoyoungmen, [1979] 5 W.W.R. 712; R. v. Maloney (1982), 51 N.S.R. (2d) 441; R. v. Charlie and Joe, [1985] 4 W.W.R. 472; R. v. Johns (1962), 133 C.C.C. 43; R. v. Isaac (1973), 14 C.C.C. (2d) 374; R. v. Chiasson (1982), 39 N.B.R. (2d) 631, aff’d [1984] 1 S.C.R. 266.

Statutes and Regulations Cited

Indian Act, R.S.C. 1970, c. I-6, ss. 73(1)(c), 88.

Indian Reserve Traffic Regulations, C.R.C. 1978, c. 959, ss. 5, 6, 9.

Motor Vehicle Act, R.S.N.B. 1973, c. M-17, s. 167(b).

Authors Cited

Laskin, Bora. “Occupying the Field; Paramountcy in Penal Legislation” (1963), 41 Can. Bar Rev. 234.

APPEAL from a judgment of the New Brunswick Court of Appeal (1985), 60 N.B.R. (2d) 70, 157 A.P.R. 70, 30 M.V.R. 235, dismissing an appeal from a judgment of Dickson J. (1984), 54 N.B.R. (2d) 234, 140 A.P.R. 234, dismissing an appeal from conviction found by Tomlinson Prov. Ct. J. Appeal dismissed. The first constitutional question should be answered in the affirmative and the second in the negative.

Bruce H. Wildsmith, Graydon Nicholas and John Wyatt, for the appellant.

Jeffrey Mockler, for the respondent.

René Morin and Denis Lemieux, for the intervener the Attorney General of Quebec.

Robert E. Lutes, for the intervener the Attorney General of Nova Scotia.

Gillian P. Wallace, for the intervener the Attorney General of British Columbia.

Nolan D. Steed and Robert J. Normey, for the intervener the Attorney General for Alberta.

The judgment of the Court was delivered by

1. LA FOREST J.–This is an appeal from a decision of the Court of Appeal for New Brunswick in which it upheld the conviction of the appellant under s. 167(b) of the Motor Vehicle Act, R.S.N.B. 1973, c. M-17, for failing while driving a motor vehicle to yield the right-of-way when entering a highway from a driveway. Since the incident occurred on an Indian reserve, the appellant argues that he could only be charged and convicted under s. 6 of the Indian Reserve Traffic Regulations, C.R.C. 1978, c. 959. That provision was enacted pursuant to s. 73(1)(c) of the Indian Act, R.S.C. 1970, c. I-6, which empowers the Governor in Council to make regulations for the control of the speed, operation and parking of vehicles on roads within reserves. Section 6 of the regulations reads as follows:

6. The driver of any vehicle shall comply with all laws and regulations relating to motor vehicles, which are in force from time to time in the province in which the Indian reserve is situated, except such laws or regulations as are inconsistent with these Regulations.

2. On June 18, 1985, Chief Justice Dickson set the following constitutional questions to be determined on this appeal:

1. Is section 167(b) of the Motor Vehicle Act, R.S.N.B. 1973, c. M-17 constitutionally applicable to the regulation and control of the operation of motor vehicles on an Indian Reserve?

2. If so, is s. 167(b) of the Motor Vehicle Act, R.S.N.B. 1973, c. M-17 in conflict with the Indian Reserve Traffic Regulations, C.R.C. 1978, c. 959 passed pursuant to the Indian Act, R.S.C. 1970, c. I-6 and therefore inoperative to the extent of the conflict?

3. The Attorneys General of Quebec, Nova Scotia, British Columbia and Alberta intervened. The Attorney General of Canada was not represented, no doubt because the essential issue involves the application of provincial law.

4. I shall begin by saying that, in the absence of conflicting federal legislation, provincial motor vehicle laws of general application apply ex proprio vigore on Indian reserves. To hold otherwise would amount to resuscitating the “enclave” theory which was rejected by a majority of this Court in Cardinal v. Attorney General of Alberta, [1974] S.C.R. 695; see also Four B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031. In Kruger v. The Queen, [1978] 1 S.C.R. 104, this Court held that general provincial legislation relating to hunting applies on reserves, a matter which is obviously far more closely related to the Indian way of life than driving motor vehicles. Indeed Beetz J., speaking for the Court in Dick v. The Queen, [1985] 2 S.C.R. 309, at p. 326, expressly stated that provincial traffic legislation applies to Indians without touching their Indianness.

5. The question remaining then is whether, under the doctrine of paramountcy, the provincial law is inoperative because it is inconsistent with the Indian Reserve Traffic Regulations; see Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161. Section 6 of the regulations is the main area of contention, but before going further, it should be noted that in the courts below, the appellant contended that s. 5 deals expressly with driving at intersections. That section provides that “a person in charge of any vehicle…shall keep the vehicle in such control when approaching a[n] … intersection…as will enable him to prevent a collision with, or damage to, all other persons and vehicles”. Here the appellant had collided with another vehicle on the highway. However, the courts below found, rightly in my opinion, no inconsistency between s. 5 of the regulations and s. 167(b) of the Motor Vehicle Act, and the appellant did not appeal this finding.

6. The Court of Appeal disposed of any alleged conflict between s. 6 of the regulations and s. 167(b) of the Motor Vehicle Act by holding that s. 6 did not incorporate the latter provision by reference but was merely of a declaratory nature, being intended simply to define “the obligation of obedience that Indians and non-Indians alike owe to provincial legislation while on reserves”: following R. v. Twoyoungmen, [1979] 5 W.W.R. 712, at p. 721 (Alta. C.A.); see also R. v. Maloney (1982), 51 N.S.R. (2d) 441, at p. 445 (N.S.C.A.), and R. v. Charlie and Joe, [1985] 4 W.W.R. 472 (B.C.C.A.) This view, as counsel for the Attorney General for Alberta noted, may be buttressed by the fact that s. 6 is expressed in such a way as to be capable of being read as extending beyond the matters mentioned in the empowering provision. Section 73(1) (c) of the Indian Act provides for the enactment of regulations respecting the “speed, operation and parking of vehicles”; s. 6 refers to “all laws and regulations relating to motor vehicles”.

7. The foregoing argument, however, is by no means determinative. Section 6 must be construed in terms of its empowering statute. One may also wonder why the federal government would engage in the idle exercise of simply enjoining people to comply with provincial laws; see Dick v. The Queen, supra. The reason for the enactment of s. 6 and similar federal regulations in related fields, for example national parks, appears to be that at the time of their original enactment, the prevailing judicial view of the extent to which the provinces could enact legislation affecting federal public property and Indian lands was more limited than it is today. Because of this and the then prevalent wider view of federal paramountcy, it was natural to think it was necessary to enact such measures with a view to incorporating or adopting provincial laws. It is also possible that the federal government wanted to have the option of having traffic rules on Indian reserves enforced by either federal or provincial officials. These considerations have led me to the view that s. 6 incorporates by reference or adopts provincial traffic regulations as federal laws. Several other courts have arrived at the same conclusion; see R. v. Johns (1962), 133 C.C.C. 43 (Sask. C.A.), and R. v. Isaac (1973), 14 C.C.C. (2d) 374 (Ont. C.A.)

8. In considering the interpretation of s. 6, counsel made reference, as had the courts below, to s. 88 of the Indian Act , which bears some resemblance to s. 6 of the regulations in issue here. Section 88 provides that all provincial laws of general application are applicable to Indians. Counsel on all sides rightly conceded that this provision had no direct bearing on this case. In Dick v. The Queen, supra, this Court held that s. 88 served to incorporate only those provincial laws that did not extend to Indians ex proprio vigore. In particular, Beetz J. expressly referred to traffic regulations as laws that applied to Indian reserves ex proprio vigore and as such not falling within the types of provincial laws extended to Indians by s. 88 . Obviously, the reasoning in Dick does not apply to s. 6 since it is directly aimed at traffic regulations on Indian reserves.

9. The fact that a provincial law may be incorporated by reference as a federal law does not prevent the provincial law from operating in its own right. Since the Multiple Access case, supra, it is clear that federal and provincial laws that merely duplicate one another but do not conflict can exist side by side. A person may be charged with violating the provincial statute or the federal regulation; see R. v. Chiasson (1982), 39 N.B.R. (2d) 631, aff’d [1984] 1 S.C.R. 266. To the extent that cases like R. v. Kenny (1982), 20 Sask. R. 361, [1983] 1 W.W.R. 284 (Q.B.), aff’d (1983), 36 Sask. R. 280 (C.A.), conflict with this, they must be deemed to be overruled.

10. The mere fact that the federal government has adopted the provincial traffic laws does not, in my view, display a sufficient intent that it wished to cover the field exclusively. As Professor Laskin, later Chief Justice, observed in “Occupying the Field; Paramountcy in Penal Legislation” (1963), 41 Can. Bar Rev. 234, at p. 263, “It may be the better part of wisdom … to require the federal Parliament to speak clearly if it seeks, as it constitutionally can demand, paramountcy for its policies”; applied in R. v. Chiasson, supra, at p. 641. Nor does the fact that there is a separate penalty for breach of the federal regulations clearly establish such an intention. That argument, I may say, can only have weight if R. v. Johns, supra, is correct in holding that only the provincial regulations and not the penalties for their infraction are imported into the federal regulations. It is possible, however, that the penalty section (s. 9) was intended to be confined to provisions other than the provincial laws, which carry their own penalty. That issue was not really addressed in argument and I need not pronounce on it. For, assuming that s. 9 applies to provincial laws incorporated by s. 6, it must be remembered that s. 6 incorporates laws throughout Canada which, though similar in many respects, carry different penalties from province to province. The federal authorities appear to have preferred to have a single penalty applicable to Indian reserves throughout Canada when they enforce the provincial laws adopted in the regulations.

11. I would dismiss the appeal and answer the first constitutional question in the affirmative and the second in the negative.

Appeal dismissed. The first constitutional question should be answered in the affirmative and the second in the negative.

Solicitor for the appellant: Graydon Nicholas, Fredericton.

Solicitor for the respondent: Jeffrey Mockler, Woodstock.

Solicitors for the intervener the Attorney General of Quebec: René Morin and Denis Lemieux, Ste-Foy.

Solicitor for the intervener the Attorney General of Nova Scotia: Robert E. Lutes, Halifax.

Solicitor for the intervener the Attorney General of British Columbia: Gillian P. Wallace, Victoria.

Solicitors for the intervener the Attorney General for Alberta: Nolan D. Steed and Robert J. Normey, Edmonton.

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