Turtle Talk

In 2009, Mr. Quinn, an aboriginal from Sechelt Indian Band, was pulled over by two Royal Canadian Mounted Police (RCMP) officers on reserve land owned in fee simple by the Band.  They ticketed him for (ironically enough) displaying Canadian flags instead of license plates.  He did not have car insurance.  Quinn claimed that he would not sign the violation ticket nor would he obtain insurance, because, he claimed, he was operating a “state” vehicle immune from provincial requirements.  The RCMP impounded his car and Quinn brought suit, claiming the officers exercised unlawful authority to ticket him and to impound his car.  Here’s the case.

If you can’t foresee how this one ultimately played out in court, keep reading. [hint: Quinn loses]

17     Section 18(a) of the RCMP Act provides that it is a duty of every member of the RCMP to uphold all laws in force in the province in which they are assigned to work. The Motor Vehicle Act is a provincial law that the defendant constables were bound to enforce in the proper performance of their duties. A dispute about the application of this provincial law to aboriginal people or on lands claimed by aboriginal people does not give rise to a claim for damages against a police officer in his or her personal capacity. The plaintiff’s claim, if one exists at all, is against the Minister of Public Safety and Solicitor General of British Columbia who is jointly and severally liable for wrongful acts committed by provincial constables.

18     Accordingly, the plaintiff’s action against the defendant constables is dismissed. This action cannot be brought against the defendant constables in their personal capacities because it is barred by s. 21(2) of the Police Act.

…

22     There is no authority for the proposition that aboriginal persons are immune to provincial laws of general application. Indeed, the law is to the opposite effect. In R. v. Alphonse, [1993] 4 C.N.L.R. 19 (B.C.C.A.), the Court of Appeal held that laws of general application that do not affect “Indians in their Indianness”, “Indians qua Indians” or “Indians in relation to the core values of their society” or “the status and capacities of Indians” apply to Indians by their own force as valid provincial laws: per MacFarlane J.A. at para. 39. Laws of general application that do affect Indians in the ways described above require s. 88 of the Indian Act, R.S.C., 1985, c. I-5 [Indian Act], which incorporates such laws by reference, to make them applicable to Indians.

23     I do not think there can be any doubt that the Motor Vehicle Act is a law of general application in that it applies throughout the province to all residents. Further, the Motor Vehicle Act governs the operation of motor vehicles in the province and does not have any impact on the plaintiff as an aboriginal person in his capacity as an aboriginal person. As a consequence, the plaintiff’s claim does not raise issues about the constitutional validity of s. 88 of the Indian Act and, in particular, whether it violates s. 35 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Constitution Act].

24     Neither s. 35 of the Constitution Act nor the Royal Proclamation of 1763 grant to aboriginal persons who reside within a province, immunity from the laws in force within that province and which apply to all persons resident in that province. Accordingly, any argument based on personal immunity from the application of the Motor Vehicle Act must fail.

25     The plaintiff also argues that the Motor Vehicle Act is unenforceable on the lands claimed by the Shishalh nation. It is only necessary to address the application of the Motor Vehicle Act to the Shishalh or Sechelt band reserve where the plaintiff was stopped and issued a violation ticket by the officers. For the purpose of this summary dismissal application, it is unnecessary to determine the consequences of operating an unlicensed motor vehicle on other lands claimed by the Shishalh nation. If the violation tickets were lawfully issued to the plaintiff on the Sechelt reserve, it is irrelevant that these tickets may not have been validly issued for driving without insurance or licence plates at some other location.

26     The reserve where the plaintiff was pulled over is land held in fee simple by the Sechelt Indian Band and these lands are governed by the Sechelt Indian Band Self-Government Act, S.C. 1986, c. 27 [Sechelt Indian Band Self-Government Act]. The members of the Sechelt band approved of this legislation in substance in a referendum held on March 15, 1986. The Act transfers to the Sechelt Indian Band all reserve lands in fee simple and reposes in the band the right of self-government over the lands subject to certain exceptions. The exceptions relevant to this case are found in ss. 37 and 38 of the Act:

• 37. All federal laws of general application in force in Canada are applicable to and in respect of the Band, its members and Sechelt lands, except to the extent that those laws are inconsistent with this Act.
• 38. Laws of general application of British Columbia apply to or in respect of the members of the Band except to the extent that those laws are inconsistent with the terms of any treaty, this or any other Act of Parliament, the constitution of the Band or a law of the Band.

32     The plaintiff failed to attend the trial of his offences under the Motor Vehicle Act and, as a result, he was deemed convicted. The plaintiff has not appealed that conviction. Instead, he seeks a declaration from this Court that he could not have been charged with these offences and an order for damages against the defendants for the consequently unlawful seizure of his vehicle. This action, in my view, amounts to a collateral attack on the plaintiff’s deemed conviction under the Motor Vehicle Act. His only recourse was to appeal the conviction. The plaintiff cannot avoid the appeals process by commencing a civil action that seeks to override the conviction. I thus find this action must be struck as being an abuse of process of the court.