Feb 5/98: BC Court of Appeal-Reasons for Judgement


Date: 19980205
Docket: CA023439, CA023440, CA023441 - Registry: Vancouver





Before: The Honourable Madam Justice Rowles, The Honourable Madam Justice Prowse, The Honourable Mr. Justice Hall

J.W. Ignace, S.A. Franklin and J.A.S. Pitawanakwat - On their own behalf
Charles F. Willms - Counsel for the Attorney General of British Columbia

Written Submissions received.

Vancouver, February 5 1998, Court of Appeal

Written Reasons of The Court: R v. Ignace, Franklin, Pitawanakwat

[1] The appellants were convicted before Mr. Justice Josephson and a jury on 20 May 1997 of various offences charged under the Criminal Code, R.S.C. 1985, c. C-34 arising out of events which took place in the summer of 1995 at or near Gustafsen Lake in the Province of British Columbia.

[2] During the course of the trial, the appellants brought an application for a declaration that the court was without jurisdiction to hear the Indictment on the grounds that the alleged offences occurred on land which had not been acquired originally by the Crown from the natives by treaty or purchase.

[3] When the application was made by the appellants, the Attorneys General of British Columbia and Canada applied at the outset to dismiss the application on the grounds that the point of law upon which the application was based had been determined by the British Columbia Court of Appeal and, applying the principle of stare decisis, the determination was binding on the trial judge.

[4] In dismissing the application, the trial judge referred to the following decisions of the Court of Appeal in which the same point had been considered and dismissed: Delgamuukw v. British Columbia, [1993] 5 W.W.R. 97; R. v. Clark (1997), 88 B.C.A.C. 213; [leave to appeal to the Supreme Court of Canada refused, [1997] S.C.C.A. No.260.] In the latter case, Gibbs J.A., whose reasons were concurred in by MacFarlane and Proudfoot JJ.A, declined to hear the jurisdictional argument on an appeal from a contempt conviction arising in the early pre-trial stages of these proceedings on the ground that arguments founded on similar jurisdictional propositions had been made in Delgamuukw v. British Columbia and R v. Williams as well as in other jurisdictions and that the arguments had repeatedly been rejected.

[5] On May 1997, after 185 days at trial, the appellants were convicted as follows:

Mr. Ignace was convicted of mischief, possession of a weapon for a purpose dangerous to the public peace, discharging a firearm at a police officer with intent to prevent the arrest of a person, and using a firearm in committing the assault of police officers. He received a sentence of four and one half years incarceration and a lifetime prohibition against possessing any firearm, ammunition or explosive substance.

Ms. Franklin was convicted of mischief and received a sentence of twelve months incarceration to be served in the community followed by eighteen months on probation.

Mr. Pitawanakwat was convicted of mischief and possession of a weapon for a purpose dangerous to the public peace and received a sentence of three years incarceration and a lifetime prohibition against possessing firearms, ammunition or explosive substances.

[6] On 7 July 1997, the appellants filed notices of appeal from conviction challenging the jurisdiction of the court. None of the appellants sought to appeal from sentence. Subsequently, the appellants, Jones William Ignace and James Allan Scott Pitawanakwat, filed amended notices of appeal raising other grounds of appeal along with an appeal against sentence.

[7] On 11 December 1997, the appellants, Mr. Ignace and Mr. Pitawanakwat, appeared in this Court, in person, before McEachern C.J.B.C., Cumming and Braidwood JJ.A. Mr. Ignace and Mr. Pitawanakwat applied to withdraw their amended notices of appeal and to have this appeal determined by this Court without oral argument. In granting the application to withdraw the amended notices of appeal, the Chief Justice, with whom Cumming and Braidwood JJ.A. concurred, said:

...I am prepared to accede to the wishes of the two appellants to withdraw their non-jurisdictional Notice of Appeal and Sentence Appeal. I am not persuaded that that is in your interests to do so and I believe that they are wrong in thinking that you cannot have both appeals, that you cannot have your conventional grounds of appeal and your jurisdictional appeal, but I do not think that we should stand in your way of withdrawing the conventional or non-jurisdictional grounds of appeal and Sentence Appeal and I would so order.

But in saying this I wish to record the fact that I think you are making a mistake in doing so and in my view this Court should give very careful consideration to allowing you subsequently to apply for an order to extend the time those Notices of Appeal and to proceed with those appeals if at some time in the future you think you would like to deal with them on the grounds originally filed.

[8] The Court ordered that the second notices of appeal were withdrawn as abandoned, that the appeals of the three appellants be consolidated and that the consolidated appeal could be determined by this Court on the basis of argument to be submitted in writing.

[9] The issue before us is whether the trial judge erred in dismissing the application for a declaration that the Supreme Court of British Columbia had no jurisdiction to try the appellants for offences under the Criminal Code.

[10] In R. v. Williams, supra, at 233 (C.N.L.R.), this Court adopted the following concisely stated reasons of Cohen J. in rejecting the same argument in relation to jurisdiction over aboriginal accused:

I accept the respondent's submission that the result in Delgamuukw [ [1993] 5 W.W.R. 97, 104 D.L.R. (4th) 470 (B.C.C.A.)] makes it plain that no aboriginal jurisdiction superior to laws intended to govern all inhabitants of this Province survived the assertion of sovereignty. Furthermore, as Delgamuukw upheld the finding of McEachern C.J.B.C. (as he then was) that the Royal Proclamation has never applied to this Province, the appellants cannot rely upon the Royal Proclamation as support for their position.

I conclude that the decision in Delgamuukw is binding upon this Court and governs the issues raised in the instant appeals. As, in my view, correctly stated by the Crown submission: "There is no residual aboriginal sovereignty capable of displacing the general jurisdiction of the Provincial Court to try persons, whether aboriginal or non-aboriginal, for offenses under the Wildlife Act and Criminal Code throughout British Columbia, whether or not the alleged offenses took place 'beyond the treaty frontier.'"

[11] Nothing in the Supreme Court of Canada's recent decision in Delgamuukw v. British Columbia, [1997] S.C.J. No. 108 (Q.L.), casts doubt on that reasoning. In Delgamuukw, in para. 141, the Supreme Court confirmed that "the purpose of s. 35 (1) [of the Constitution Act, 1982] is to reconcile the prior presence of aboriginal peoples in North America with the assertion of Crown sovereignty...". The court also reaffirmed, at para. 170, its statement in R. v. Pamajewon, [1996] 2 S.C.R. 821 that "rights to self-government, if they existed, cannot be framed in excessively general terms". The appellants claimed immunity to prosecution in this case is framed in excessively general terms.

[12] It is well established that the courts of British Columbia have jurisdiction over aboriginal accused where an offence has allegedly been committed within the Province, regardless of whether or not the territory could be said to be "beyond the treaty frontier", or is "unsurrendered ground", as that terminology is used by the appellants in their argument before this Court.

[13] The appeal is dismissed.


This BC decision will be appealed to Canada's Supreme Court.


Full text of December 11, 1997 ruling:

Index of Delgamuukw/Gitksan articles, analysis, and commentary:

Background information on Delgamuukw case:

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