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Digest of the Week — Provincial Laws of General Application Apply to Indigenous People

R. v. Bloom |
2016 CarswellOnt 35 |
Ontario Court of Justice


Aboriginal law | Constitutional issues | Constitution Act, 1867 (British North America Act)

Accused was pulled over by police officer while driving pickup truck in city of T — Ensuing police investigation led to number of charges under provincial Highway Traffic Act — At trial, accused's position was simply that "the Province of Ontario has absolutely no jurisdiction over Indians" — Presiding justice of peace accepted evidence of investigating officer and rejected accused's claims to jurisdictional immunity — Accused was found guilty of all charges and fined $6,170 — Accused appealed his convictions and sentence — Appeal dismissed — Section 91 of Constitution Act, 1867 and, in particular, para. 24, assigns legislative powers respecting "Indians" to federal Parliament — In Supreme Court of Canada decision concerning jurisdiction, SCC re-affirmed that s. 91 ¶ 24 "protects a 'core' of Indianness from provincial intrusion" — This core encompasses aboriginal rights, including rights that are recognized and affirmed by s. 35(1) of Constitution Act, 1982 — Laws that purport to extinguish those rights therefore touch core of Indianness that lies at heart of s. 91 ¶ 24, and are beyond legislative competence of provinces to enact — Those rights include rights in relation to land and also encompass practices, customs and traditions that are not tied to land as well — Provincial governments are prevented from legislating in relation to both types of aboriginal rights — However, provincial laws of universal application that do not intrude on treaty, territorial or other constitutionally protected aboriginal rights or practices and customs sheltered by them are as binding on Indigenous persons as any other inhabitants of province — Time period that court should consider in identifying whether right claimed meets standard of being integral to aboriginal community claiming right is period prior to contact between aboriginal and European societies — While there have been some modest modifications in its formulation, rule that "provincial laws of general application apply proprio vigore to Indians" remains fundamentally undisturbed.
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