Jack and Charlie v. The Queen

Supreme Court of Canada – [1985] 2 S.C.R. 332

---

British Columbia Aboriginal rights

Issue

Do the provisions of the Wildlife Act prohibiting the hunting of deer out of season interfere with Jack and Charlie’s freedom of religion as members of the Salish Nation?

Decision

No – the Wildflie Act allows the Salish to do their ritual. They did not manage to prove that it was necessary, in order for this ritual to be completed, that the meat be fresh (unanimous decision).

Parties

Between: Anderson Jack and George Louie Charlie
And: British Columbia Crown

Facts

Jack and Charlie are members of the Tsartlip Band and live on the reserve near Saanich, British Columbia. They are part of the Salish Nation.

In 1979, Jack and Charlie killed a deer on Pender Island near the reserve in order to obtain raw deer meat to burn in a traditional Salish ceremony. On their way back to the reserve, policemen intercepted them and found the dead deer in the car. Jack and Charlie were accused of hunting deer out of season in violation the British Columbia Wildlife Act.

Arguments

Jack and Charlie: The Wildlife Act interferes with their freedom of religion. By conflicting with their aboriginal religion, the Act touches their core “Indianness” and should therefore be inapplicable to them. Also, since hunting is fundamental to the Salish culture and lifestyle, it should not be prohibited by a provincial legislation.

The Crown: The Wildilfe Act does not interfere with Jack and Charlie’s freedom of religion, because hunting is not a religious practice. Their arguments were merely motives, which are irrelevant in assessing culpability.

Decision of the lower courts

Provincial Court of British Columbia (1979): The appellants are convicted of the charges. The Wildlife Act is a law of general application. Its objectives were never to prohibit the Salish from practicing their religious rituals, because the burning of raw deer meat is not sanctioned. Their religious rituals can be carried out within the limits of the Wildlife Act.

County Court (1982): The decision is upheld. The legislative history behind the Wildlife Act shows no indication that its intent was to harm core “Indianness”.

British Columbia Court of Appeal (1983): The trial judge’s decision is upheld since the Wildlife Act does not affect Indian status. The ritual was not a danger to society, and the ritual killing of one deer does not diminish the objectives of the Wildlife Act. The Act must be construed in a broader sense in order to allow Jack and Charlie to practice their religion.

Reasons for Judgement

Jury

Dickson, Beetz, Estey, McIntyre,  Chouinard

Reason

The killing of the deer happened prior to the proclamation of the Canadian Charter of Rights and Freedoms, which constitutionally protects the freedom of religion. Jack and Charlie’s claim cannot rely on the Canadian Bill of Rights, since their case involves provincial legislation. The basis of their freedom of Aboriginal religion lies in a fundamental principle of law.

The hunting and killing of the deer was not part of a religious ritual protected by a fundamental principle of law. Jack and Charlie could practice their ritual by using another means to obtain the raw meet needed that was not prohibited by a provincial law of general application. Also, there was no evidence brought by them that the killing of a deer, or the fresh meat, was an essential part of their ritual. The Wildlife Act therefore does not prohibit the religious ceremony nor does it regulate it.

The prohibition pertaining to hunting contained in the legislation does not constitute an attack on the core of “Indianness” (Dick v. The Queen).

Impact

The events relevant to this case all took place before 1982. In that year, existing Aboriginal and treaty rights, including the right to hunt for ceremonial purposes, became entrenched in the Constitution Act, 1982. Since then, provincial laws of general application, even if they fall under sect. 88 of the Indian Act, cannot be applied to Aboriginal people if they unlawfully infringe upon a recognized Aboriginal or treaty right (Olthuis, Kleer and Townshend, 2008: 41; Hogg, 2008).

In 2004, in another case involving the Tsartlip Band, British Columbia’s wildlife administrators confirmed that they no longer subject band members to seasonal restrictions when they hunt for ceremonial purposes because this falls under the protection of the Douglas Treaty (R. v. Morris and Olsen, par. 27).

In 2006, a majority of the Supreme Court held that not only do the Tsartlip Band have a treaty right to hunt for food and for ceremonial purposes, but they can also do so in accordance with their preferred means, which includes night hunting and hunting with illumination (R. v. Morris, par. 60).