Jack and Charlie v. The Queen

Beetz J.‑‑

I‑‑The Proceedings

Provincial Court Judge Allan convicted the appellants of hunting and killing a deer at a time not within the open season contrary to s. 4(1)(c) of the Wildlife Act, 1966 (B.C.), c. 55, now R.S.B.C. 1979, c. 433, s. 3(1)(c), and granted each of them an absolute discharge: R. v. Jack and Charlie (1979), 50 C.C.C. (2d) 337. The appellants had also been charged with a count of unlawful possession of wildlife, to wit, a deer, at a time not within the open season but, as indicated by the trial judge at p. 338 of his reasons, just before his judgment was delivered, the Crown elected to proceed with the hunting charge only.

The appellants appealed to the County Court. Tyrwhitt‑Drake Co. Ct. J. dismissed their appeal: R. v. Jack and Charlie (1982), 139 D.L.R. (3d) 25, at p. 27. The appellants were granted leave to appeal to the British Columbia Court of Appeal but their appeal was dismissed, Hutcheon J.A. dissenting: R. v. Jack and Charlie, supra, at p. 30.

II‑‑The Facts

For the most part, the facts are not in dispute. They can be read in the judgments of the courts below, all of which have now been reported.

At pages 30‑31, Taggart J.A. thus begun the recital of the facts:

The appellants are both members of the Tsartlip Band of Indians and live on the Tsartlip Indian Reserve in Saanich, British Columbia. The Tsartlip Band is one of the bands making up the Coast Salish people. Elizabeth Jack is the wife of the appellant Anderson Jack and the sister of the appellant George Louie Charlie. She was present when her brother shot a deer on Pender Island at a place which is not within an Indian reserve. Anderson Jack helped George Louie Charlie load the dead deer into the trunk of their car. The three then drove to the place where they had been staying on Pender Island and there cleaned and dressed the deer. Later as they were driving to the ferry which would take them to Saanich they were stopped by police officers who found the deer carcass in the trunk of the car.

At page 341, the trial judge said:

The two accused testified they had committed the act in order to help Elizabeth Jack obtain raw deer meat for a burning ceremony for her great‑grandfather.

At page 27, the County Court judge wrote:

They freely admitted to the killing and possession; their plea before the provincial court, and here, is one of confession and avoidance. The deer, they contend (and the evidence on this point is accepted in its entirety by the Crown) was killed in preparation for a religious ceremony, in which the meat thereof would be burned to satisfy the requirements of an ancestor by means of a sort of reverse transubstantiation.

The religious ceremony and its meaning were described by several defence witnesses. Here is what Taggart J.A. wrote about this at pp. 31‑32:

The religious ceremony was described by witnesses who were members of the Tsartlip Band and by Dr. Barbara Lane. Dr. Lane is an anthropologist who since 1948 has studied the Coast Salish people and especially their religious beliefs and practices. She said that the Coast Salish people were believed to have lived in British Columbia for about 20,000 years. The Coast Salish believe that members of their people who die do not go to another world but that their spirits remain close to where they lived. The belief is that the spirits have the same kinds of needs and desires as living people. Dr. Lane explained the belief in this way:

They become lonely and want to visit their relatives, they become hungry and want to have the kind of foods that they had before, and they have desires for other things that they've left behind here, and they transmit these desires to their close relatives through dreams and other kinds of experiences, and these needs are satisfied and the desires of the deceased relatives are met by the living providing to them the things that they request.

...

As I was attempting to suggest earlier, the entire world view of Coast Salish Indian people is quite different from that which those of us who are raised in the Judaeo‑Christian tradition have. Coast Salish Indian people perceive of the world as an intimately inter‑related phenomenon in which the living and the dead animals and humans, all things are intimately connected and belong together in this place and do not leave it. And the function of burning food for the dead is to carry on the mutual responsibilities and respect that Indian people here try to accord to all of the other parts of the world as they see it. One of the things that always seems to be incomprehensible to Indian people is how the rest of us can pick ourselves up from one part of the world and move to another and abandon and cut themselves off from our dead relatives because they perceive of themselves as being in continuous association with and having ongoing responsibilities to the dead.

Dr. Lane described the practice of serving the spirits of the dead by burning food.

A. Well, this is a very ancient traditional practice among all Coast Salish people and the essence of the ceremony is to provide food for deceased relatives by burning it and the essence of the food, as I understand it, is transmitted through the smoke to the essence of the deceased person.

Dr. Lane said that the practice of burning food for the dead had been described in articles by other anthropologists who had studied the practices of the Coast Salish people.

The religious practices described by Dr. Lane were also spoken of by elders of the Tsartlip Band and by the appellants and Elizabeth Jack. The latter said she had been visited by the spirit of her great grandfather who had asked that she burn raw meat for him. She sought the assistance of her husband and her brother to obtain raw deer meat for the burning ceremony.

There can be no doubt about the sincerity of the appellants' religious beliefs. Here is what the trial judge held on this subject, at pp. 339 and 341:

That evidence was interesting, revealing the religious beliefs and practices of the Coast Salish Indians and of the Saanich people, part of the Coast Salish tribe or culture, to which people the two accused and Mrs. Elizabeth Jack belong, as well as the witnesses for the defence Louie Charlie, David Elliott, Tom Sampson, Samuel Sam, Louie Charlie and Philip Paul. I should also say at the outset that I believe the defence is put forward sincerely by these people and that they are, so far as appears, quite law abiding persons who committed the act rather fearfully, but apparently in the bona fide effort to obtain deer meat for a religious ceremony. The impression I obtained from the evidence was that they were fearful of breaking this law, because they are law abiding persons usually.

...

I must say, also, that I found the elders of the Saanich people impressive. Some of those who spoke in English are very articulate, although they are naturally inclined to use few words, but ingenuously poetic in a manner which obviously springs from deep sincerity.

III‑‑The Defences Offered by the Appellants

The submissions made by counsel for the appellants to this Court appear to have been substantially the same as those made to the courts below. They can be summarized in three propositions:

1. The Wildlife Act interferes with the appellants' freedom of religion and ought to be read down so as not to apply to them in the circumstances of this case.

2. In interfering with aboriginal religion, the Wildlife Act goes to the root of Indianness, and purports to regulate the appellants qua Indians; it accordingly should be held inapplicable to them.

3. Apart from religion, hunting is at the root of the culture and way of life of the Coast Saalish people so that its prohibition attains the appellants qua Indians and ought to be held inapplicable to them.

I must observe however that the reading of the reasons given by the courts below does not clearly disclose whether the third proposition was advanced there as distinct from the second one.

More should be also said about the legal basis relied upon for the freedom of religion invoked in the first proposition.

This basis is not a statutory one such as the Freedom of Worship Act, R.S.Q. 1941, c. 307, referred to in Saumur v. City of Quebec, [1953] 2 S.C.R. 299, and in Chabot v. Commissaires d'écoles de Lamorandière, [1957] Que. Q.B. 707, 12 D.L.R. (2d) 796; there was no such statutory provision relating to the freedom of worship or religion in force in British Columbia at the time the offence was committed.

This basis is not either a paramount constitutional or quasi‑constitutional instrument. The Canadian Charter of Rights and Freedoms had not been enacted at the time the offence was committed. As for the Canadian Bill of Rights, counsel for the appellants expressly declined to rely upon it on the ground that it applied only to federal legislation whereas the Wildlife Act was a provincial statute. The trial judge alludes to this at p. 342 of his reasons. Neither before the trial judge, nor before the other courts below, nor before this Court was it considered whether the Canadian Bill of Rights might govern the Wildlife Act if the latter Act applied to Indians not ex proprio vigore but by referential adoption under s. 88 of the Indian Act, R.S.C. 1970, c. I‑6.

The legal basis relied upon for the freedom of religion invoked by the appellants, as I understand it, is a fundamental principle of law, recognized by judges such as Rand and Kellock JJ. in the Saumur case, supra, of the same nature as the freedom of the press also recognized by this Court in the Reference re Accurate News and Information Act, [1938] S.C.R. 100, and in Gay Alliance Toward Equality v. Vancouver Sun, [1979] 2 S.C.R. 435. This fundamental freedom, while not absolute and subject to some legal restrictions, possesses, it is claimed, a degree of paramountcy over or exempting force from provincial law of general application, provided certain conditions are satisfied in what is called a balancing test. Here is how counsel for the appellants express themselves on this point in their factum:

That in construing the application of a valid Provincial law of general application against a fundamental freedom, the Courts should apply a balancing test. The balancing test may be stated as follows: where the religious belief is held to be in good faith, and where the conduct is held to be justified to the practice of the religion, and where no compelling state interest is found to justify the curtailment of the religious practice, the general legislation must be applied so as to preserve the fundamental freedom.

It will readily be seen that this balancing test resembles closely the one which would be required if s. 1 of the Canadian Charter of Rights and Freedoms were applicable. In their factum, counsel for the appellants concede that there is no direct authority for their submission but argue that, even prior to the coming into force of the Canadian Charter of Rights and Freedoms , the balancing test has been used implicitly as the framework for analysis in some cases which need not be reviewed in these reasons, given the view I take of the case at bar.

IV‑‑The Judgment of the Courts Below

The trial judge reviewed and distinguished the authorities relied upon by counsel for the appellants. Then at page 343 he wrote:

It was suggested that...the Wildlife Act here could not prohibit the free exercise of one's religious practices, but as I shall say I do not think their religious practices are interferred with or prohibited.

At pages 344‑45, he relied upon the decision of this Court in Kruger v. The Queen, [1978] 1 S.C.R. 104, and thereafter made what in my opinion are crucial findings:

In Kruger and Manuel v. The Queen (1977), 34 C.C.C. (2d) 377, 75 D.L.R. (3d) 434, [1978] 1 S.C.R. 104, the Supreme Court of Canada considered the very statute which is said to have been breached here, and decided unanimously that it was a statute of general application and a valid enactment, having as its object the conservation and management of provincial wildlife resources and that the accused, who were Indians, were subject to its provisions so long as the Act, in its policy, did not seek to impair the status and capacities of the accused as Indians. It is here contended that the effect of the provision which is sought by the Crown to be enforced is to impair the status of the accused as Indians by preventing them from exercising their bona fide religious practices. I am unable to accept that contention .... If Indians wish to exercise their historic religious practices there are ways within the bounds of the provincial statute in which to exercise those religious practices. They can, for example, retain a supply of deer meat in storage for such purposes. Section 9 [rep. & sub. 1971, c. 69, s. 9] of the Wildlife Act makes provision for that. The purpose of the Act is what matters. This Act has been held to be and is, clearly, I think, of general application and was certainly not aimed at preventing the Coast Salish from exercising any religious practice, and the act of burning food as an offering to the spirit of an ancestor is not prohibited. If it is exercised within the limits of the general law it may be freely carried out by the Saanich people.

In appeal, the County Court judge distinguished between religious belief and religious practices and said he was concerned with the latter. At page 28 he wrote:

It is safe to say, I think, that generally speaking a practice arising from a sincerely held religious belief may be restrained if it is a breach of the peace, or interferes with public or private rights or otherwise amounts to an illegal act.

He turned to the question of the impact of the Wildlife Act upon the status and capacity of the appellants. He quoted a passage of the Kruger case in this Court and, at p. 30, concluded as follows:

There was no evidence before the learned judge from which it could be inferred that the Wildlife Act was directed against native persons in any unfair or discriminatory way. There was no evidence of a legislative policy, expressed in the Wildlife Act, to impair the native status and capacity of the appellants as "Indians", nor can it be said that the effect of the Act is to do so.

In the British Columbia Court of Appeal, Taggart and Craig JJ.A. both referred to the adoption by this Court, in Robertson and Rosetanni v. The Queen, [1963] S.C.R. 651, of a statement by Frankfurter J. in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), at p. 653:

The constitutional protection of religious freedom terminated disabilities, it did not create new privileges. It gave religious equality, civil immunity. Its essence is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma.

Both justices of appeal held, in effect, as Taggart J.A. put it at p. 35, that

... freedom of religion must be exercised within the limits permitted by validly enacted legislation.

On the issue of the impact of the Wildlife Act on the status and capacity of the appellants, Taggart J.A. quoted a passage of Dickson J., as he then was, in the Kruger case, emphasizing certain parts and then concluded, at p. 37:

I have added the emphasis because in my opinion, in order to succeed on this second argument the appellants must show that the policy of the Act is to impair the capacity of Indians to practise their religion. It is conceded that the Act does not affect the status of Indians. In my opinion, there is no evidence before us of a legislative policy to impair the capacity of Indians in the manner contended for by the appellants. That being the case the second argument fails.

Craig J.A. held that this second argument did not raise a question of law alone and he would have refused leave to appeal on this issue.

Hutcheon J.A. dissented on the merits of the main issue. Essentially, he accepted the submission made on behalf of the appellants with respect to a balancing test which he concluded resolved the case in favour of the appellants. He wrote, at p. 41:

The issue in this case is whether Anderson Jack and George Louie Charlie were guilty of an offence when they hunted and killed deer out of season. The hunting and killing was a part of a religious ritual of the Coast Salish people of 20,000 years' duration. The ritual is not harmful to society, is not opposed to the common good and is not in violation of the rights of any other individual. I have concluded that they were not guilty of an offence and that this appeal should be allowed. The law is aimed at wildlife conservation. There is no suggestion that the loss of one deer for the purpose of the ritual would impair the legislative purpose. I think that the freedom of religion of Jack and Charlie ought not to be taken away by the application of an enactment of general application in the absence of evidence of some compelling justification.

And then, at p. 42:

The question that concerns me is whether a religious practice is to be prohibited by an Act of general application. More precisely, it is whether Jack and Charlie are guilty of an offence because they took part in a centuries‑old religious ritual that harmed no person.

...

Thus, we have a law that is not directed in any way at religion. According to the Crown it has the effect of prohibiting a religious practice that has been followed by the Coast Salish people for 20,000 years‑‑a religious practice affecting only those involved in its exercise and one not touching issues of public well‑being or morals.

He then distinguished two cases, R. v. Harrold (1971), 3 C.C.C. (2d) 387, and R. v. Beales (unreported, decision No. 760‑71, November 1, 1971 (B.C.C.A.)), relied upon by the Crown. At page 44, he analogized the situation of the case at bar to the drinking of wine for sacramental purposes:

In my opinion, neither the Harrold case nor the Beales case support the broad proposition put forward by Mr. Lang. Taken to its logical conclusion such a view may require the conviction of a minister of religion who drinks British Columbian wine for sacramental purposes in a public building such as a church. I find no exemption in the Liquor Control and Licensing Act, R.S.B.C. 1979, c. 237, for that religious practice.

Hutcheon J.A. then proceeded to his conclusions:

There is, however, high authority for the reading down of a statute to preserve a fundamental freedom. In Gay Alliance Toward Equality v. Vancouver Sun (1979), 97 D.L.R. (3d) 577, [1979] 2 S.C.R. 435, [1979] 4 W.W.R. 118, the Supreme Court of Canada by its majority read s. 3 of the Human Rights Code:

3(1) No person shall

(a) deny to any person ... any ... service,

(b) ... customarily available to the public,

so as to acknowledge the right of a newspaper to refuse to publish material that was contrary to the views of the newspaper. This was done to preserve an essential ingredient of freedom of the press.

In my opinion, the Wildlife Act ought to be read so as to acknowledge the right to Jack and Charlie on these facts to practise their religion where no competing interest of society exists.

I would grant leave to appeal and allow the appeals.

V‑‑The Submissions of the Crown

The reasons I said earlier I did not feel it was necessary to review the authorities relied upon by the appellants is that they fail to answer two submissions made by the Crown which are fatal to the position of the appellants and which, in my view, are clearly well founded. These two submissions may have been made in this Court for the first time, since they are not discussed in the reasons of the courts below; and they may have been made in response to the reasons of the dissenting justice of appeal.

The fundamental issue in this case, says the Crown, is "whether hunting by Indians for the propitiation of the dead enjoys higher constitutional protection than hunting for the sustenance of the living". If it does not, then the judgment of this Court in the Kruger case is indistinguishable and conclusive. It was decided in that case that Indians hunting for food had no constitutional defence to a charge under s. 4(1)(c) of the Wildlife Act‑‑hunting in close season‑‑the very section at issue in the case at bar.

The Crown submits that, for two reasons, the Kruger case cannot be distinguished on the basis that s. 4(1)(c) of the Wildlife Act interferes with the appellants' freedom of religion. The two reasons are that:

(a) the hunting itself was not a religious practice;

(b) the intended use of the deer meat in a religious ceremony amounts merely to "motive" and is therefore irrelevant to legal culpability.

In my opinion, which I express with the greatest of respect, the learned dissenting judge erred in stating [at p. 41] that "The hunting and killing was a part of a religious ritual". And the appellants' counsel are also in error in writing in their factum that there was an undisputed and unchallenged finding of fact to that effect at trial. There is no such finding in the reasons of the trial judge. In fact he expressly found that the Wildlife Act did not interfere with or prohibit appellants' religious practices which could be carried out with deer meat retained in storage and he referred to a section of the Wildlife Act which makes provision for that. The trial judge wrote at p. 345 that

... the fact that the deer was killed to obtain deer meat for use in a religious ceremony, as here, is no defence.

This was confirmed in appeal by the County Court judge who, in the above quoted passage, at p. 27, accepted appellants' contention, unchallenged by the Crown, that the deer had been killed "in preparation for a religious ceremony". There is no suggestion that the deer was killed as part of the ceremony.

These conclusions are entirely consistent with the evidence which is detailed and precise in the description of the ceremony itself but bare and perfunctory in the description of the killing.

There was some evidence that the type of food to be burned was of significance and that raw deer meat was required in this case but no evidence as to the circumstances or methods of obtaining it, except by theft, which would render the meat unsuitable. There was no evidence that the use of defrosted raw deer meat was sacrilegious as is alleged in appellants' factum. There was evidence that the food had to be disposed in several plates to provide for the guests of the honoured spirit, that the shaman presiding over the ceremony pronounced a name over each plate, that attendants had to remain at a certain distance from the fire, that cedar wood was preferred for the burning.

By contrast, there was no evidence that the killing of the deer was part of the religious ceremony. Mrs. Jack had previously hired two men to get her a deer. Since they failed to do so, she asked her husband and her brother for assistance. When the three of them saw the deer, her brother came out of the car and shot the deer five or six times with an automatic rifle. If he had shot two deer on the same spot, in the same manner, at the same time, one deer for a burning and one for food, there is no indication that any one of them was more suitable for one purpose than for the other.

As to the analogy drawn by the dissenting justice of appeal with the drinking of wine for sacramental purposes, here is what the Crown has to say in its factum:

The offence in question relates to the circumstances of obtaining meat for the ceremony, not the conduct of the ceremony itself, hence the analogy of a clergyman committing an offence under the Liquor Act by conducting the sacrament of Holy Communion, drawn by Hutcheon, J.A. in the Court of Appeal (in dissenting reasons relied upon by the Appellants) is inapt.

The Wildlife Act does not in any way prohibit or regulate the burning ceremony, it regulates the killing of deer, meat from which may be used for such a ceremony.

To draw the parallel analogy, the obtaining of wine for sacramental purposes is not part of the sacrament of Holy Communion, and regulation of the sale of wine does not, therefore, prohibit the exercise of that religious ceremony. Such regulation cannot, therefore, be said to affect religious freedom.

No clergyman could raise a defence based on religious freedom, to a charge of obtaining wine illegally while liquor stores were closed, simply because it was intended to use the wine for the sacrament of Holy Communion. Similarly a defence based on "freedom of religion" must fail the Appellants in this case, where the charge is killing a deer in the closed season. Since killing the deer is not, in itself, ceremonial, the actus reus of the offence cannot be regarded as a religious observance. If it is not such an observance, then logically, its prohibition by the Wildlife Act raises no question of religious freedom.

I agree with this statement and with its conclusion that the prohibition of deer killing by the Wildlife Act raises no question of religious freedom.

It follows that appellants' main defence, relating to freedom of religion, as well as their second defence, relating to aboriginal religion, are without substance and must be dismissed.

In addition, I find no error in the Crown's second submission which is presented as follows in its factum:

The intention of the Appellants that the deer meat be used for the burning ceremony was their "ulterior intention" or "motive". As such, it is irrelevant to legal responsibility for the commission of the offence: Lewis v. The Queen, [1979] 2 S.C.R. 821, at 833.

This can be illustrated as follows: if the two men hired by Mrs. Jack to "get [her] a deer" had killed a deer without knowledge of Mrs. Jack's intended use of it, the defence raised by the Appellants would be unavailable to them, even if the deer had actually been ceremonially burned. The ultimate, actual or intended "end" of killing the deer is ulterior to the mens rea of the offence, and is therefore irrelevant.

Since the "ulterior intention" of the Appellants is irrelevant as an element of the offence, the fact it is based on a religious belief, however bona fide, must logically be irrelevant as well, and can therefore provide no basis for the defence advanced by the Appellants.

VI‑‑The Third Defence Offered by the Appellants

That defence to the effect that, apart from religion, hunting is at the root of the culture and way of life of the Coast Salish people so that its prohibition attains the appellants qua Indians is indistinguishable from the defence dismissed in Dick v. The Queen [[1985] 2 S.C.R. 309], in which judgment is being delivered today. It should accordingly be dismissed for the same reasons in the case at bar.

VII‑‑Conclusions

I would dismiss the appeal and make no order as to costs.