[1996] 3 S.C.R. R. v. Côté 139
Franck Côté, Peter Decontie, Frida Morin-Côté, Appellants/Respondents
Russell Tenasco and Ben Decontieon Cross-Appeal
v.
Her Majesty The Queen Respondent/Appellant on Cross-Appeal
and
The Attorney General of Canada,
Atikamekw-Sipi/Council of the Atikamekw Nation
and Chief Robert Whiteduck, on behalf of the
Algonquins of Golden Lake First Nation
and on behalf of others Interveners
Indexed as: R. v. Côt
File No.: 23707.
1996: June 17; 1996: October 3.
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Constitutional law -- Aboriginal rights -- Natives teaching traditional fishing techniques -
- Charge of fishing without licence laid -- Incident occurring in traditional fishing area --
Whether an aboriginal fishing or other right must be necessarily incident to a claim of
aboriginal title in land -- Whether an aboriginal right may exist independently of a claim
of aboriginal title -- Constitution Act, 1982, s. 35(1).
Constitutional law -- Aboriginal rights -- Quebec -- Aboriginal law not recognized by
French colonial regime prior to transition to British sovereignty -- Whether constitutional
protection extends to aboriginal practices, customs and traditions of Quebec natives --
Constitution Act, 1982, s. 35(1) -- Quebec Act, 1774, R.S.C., 1985, App. II, No. 2 --
Royal Proclamation, 1763, R.S.C., 1985, App. II, No. 1.
Constitutional law -- Aboriginal rights -- Treaty right to fish -- Division of powers --
Natives entering a provincial controlled harvest zone by motorized vehicle -- Provincial
regulation requiring payment of fee for such entry -- Fee directly tied to cost of roads and
infrastructure -- Entry by other modes of transportation free -- Whether a provincial
regulation infringing a treaty right to fish was of no force or effect given the overlapping
statutory and constitutional protection extended to treaty rights from provincial
legislation under both s. 35(1) of the Constitution Act, 1982, and s. 88 of the Indian Act -
- Constitution Act, 1982, s. 35(1) -- Indian Act, R.S.C., 1985, c. I-5, s. 88 -- Regulation
respecting controlled zones, R.R.Q. 1981, 370 (supp.), ss. 5, 5.1.
Practice -- Defective information -- Amendment -- Information indicating wrong section
-- Parties aware of infraction notwithstanding defect -- Whether the information should
be amended by this Court -- Criminal Code, R.S.C., 1985, c. C-46, s. 601 -- Summary
SNIPPETS:
Her Majesty The Queen Respondent/Appellant on Cross-Appeal and The Attorney General of Canada,
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Constitutional law -- Aboriginal rights -- Natives teaching traditional fishing techniques --
Constitutional law -- Aboriginal rights -- Quebec -- Aboriginal law not recognized by French
Constitutional law -- Aboriginal rights -- Treaty right to fish -- Division of powers
nded to treaty rights from provincial legislation under both s.
The appellants, all Algonquins, were members of an expedition to teach traditional fishing
All were convicted under Quebec's Regulation respecting controlled zones with entering a
The Superior Court and the Court of Appeal upheld the convictions.
The appellants jointly challenged their convictions on the basis that they were exercising an
In resolving this appeal, the Court had to address three questions: whether an aboriginal
Per Lamer C.J. and Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: The
An aboriginal practice, custom or tradition entitled to protection as an aboriginal right
the French Crown may never have assumed full title and ownership to the lands occupied by
It is not clear that French colonial law governing relations with aboriginal peoples was
the appellants have demonstrated the existence of an aboriginal right to fish within the
The Algonquins' aboriginal right to fish within the Z.E.C. was not extinguished prior to
Certain factors might indicate that there had been a prima facie infringement of an
Rather, it only imposed a modest financial burden on the exercise of this alleged treaty
these two related appeals involve the claim of an aboriginal right within the historic
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