Bidal v Ontario

Background

The applicants in this matter were all charged with and being prosecuted for provincial hunting and fishing regulatory offences as a result of activities taking place in various parts of Ontario, ranging from Pembroke to North Bay, Sudbury and Sturgeon Falls. Following the Supreme Court of Canada’s decision in Tsilhqot’in Nation v. British Columbia, counsel for the applicants served a notice of application for an interim stay of the regulatory prosecutions on the basis that the applicants would be bringing a representative action asserting Algonquin Aboriginal title before the Superior Court. The applicants also sought an order requiring the Province to consult with and accommodate the applicants with respect to their Aboriginal title claim.

More specifically, the applicants sought writs of prohibition and mandamus from the Superior Court that would compel the Court of Justice to refrain from attempting to exercise jurisdiction over the prosecutions. A writ of prohibition was characterized by the Court as “an extreme measure […] that is sparingly applied” in order to compel courts to keep within the limits of their jurisdiction.  A writ of mandamus is a command from the Superior Court “directing the fulfillment of some statutory or other public duty to which the applicant has a strict legal right”.

Positions of the parties

The applicants argued that the Superior Court has exclusive jurisdiction over the provision of declaratory relief, which includes the ability to declare the existence of Aboriginal title, whereas inferior courts such as the Court of Justice have no such inherent or statutory jurisdiction. On this basis, it was argued that judicial economy would not be served if the applicants needed to mount the same constitutional challenge in each separate case of prosecution.

The Crown argued that the Court of Justice does have the jurisdiction to consider and determine Aboriginal rights issues and a writ of prohibition was therefore unwarranted.

Court’s decision

The Court found that at this point in the proceedings the Court of Justice had not yet declined jurisdiction at the request of the applicants and as a result, there was no basis upon which the Superior Court should exercise its discretion to issue orders for possession and mandamus. The Court also held that the Supreme Court of Canada’s 1990 decision in R. v. Sparrow set out an analysis for how Aboriginal rights could be considered in the context of regulatory proceedings. Likewise, it quoted the Supreme Court of Canada’s 2003 decision in Paul v. British Columbia for the principle that section 35 of the Constitution Act, 1982, like the Canadian Charter of Rights and Freedoms, is not “some holy grail which only judicial initiates of the superior courts may touch”.

The Court held that the applicants’ constitutional arguments would be better served by being properly considered during a trial rather than on an application such as the present one. It noted that on numerous occasions in the past the Superior Court had refused to determine applications for extraordinary remedies and instead returned matters to the Court of Justice for the purposes of building a factual record.

The Court also cited past jurisprudence for the proposition that applications for a stay of regulatory prosecutions pending resolution of Aboriginal title claims should be brought before the Court of Justice first. Furthermore, the Court noted that for the applicants to be successful in obtaining an order for mandamus they must establish that they have already demanded from the Court of Justice the very things that they are seeking from the Superior Court and their demands have been refused. In this case, no demands had been made to the Court of Justice nor had there been any refusal.

The Court also accepted the Crown’s submission that the applicants were from “diverse backgrounds” rather than being members of the same Aboriginal community, which the Court found to be inconsistent with the assertion of Aboriginal title. The Court went on to state that because the applicants had not yet made a request for a writ of mandamus from the Court of Justice that had been refused, no duty to consult had yet been engaged in this case.