R. v. Montour: A Drastic Shift In Indigenous Rights Jurisprudence

• Published date: 16 January 2024
• Subject Matter: Government, Public Sector, Human Rights, Indigenous Peoples
• Law Firm: Langlois Lawyers, LLP
• Author: Ms Caroline Briand, Julie Paré, Geneviève Claveau, Jeanne Pérès and Thomas Stelmazuk-C'té

On November 1, the Honourable Sophie Bourque of the Superior Court of Québec handed down a decision that will have a huge impact on Indigenous law in the case of R. c. Montour. This decision marks a major paradigm shift in how the relationship between the Crown and Indigenous peoples is conceived; it has also upset Canada's constitutional order.

Our team has put together an overview of several important matters addressed in this decision.

Overview

Mr. White and Mr. Montour, both members of the Mohawk Nation of Kahnawà:ke, (the "Accused-Applicants") were charged under the Excise Act, 2001¹ ("EA 2001") with failing to pay taxes on large quantities of tobacco imported from the United States and subsequently faced a jury trial.

After the jury delivered a guilty verdict against Mr. White on several charges in May 2019, the Court was required to consider a number of constitutional questions submitted previously by the Accused-Applicants that were only to be ruled on if a guilty verdict was rendered.

In support of their Notice of Constitutional Question and Motion to Stay Proceedings, the Accused-Applicants claimed that the charges and the resulting proceedings were an unjustified infringement of their constitutional rights, inherent rights and international rights. Based in particular on free trade treaties, the protection of Aboriginal rights set out in section 35 of the Constitution Act, 1982 ("CA 1982")² and the United Nations Declaration on the Rights of Indigenous Peoples ("UNDRIP"), the Accused-Applicants asserted the Mohawk Nation's unextinguished free trade rights, including the right to trade tobacco tax-free, as well as the right to freely determine and pursue their economic development, encompassing the right to free trade.

They also claimed that 10 treaties negotiated between 1664 and 1760 between the Haudenosaunee³ and the British form an overarching and binding "meta-treaty" (known as the Covenant Chain) that guarantees the Mohawks' right to trade in tobacco and to discuss any related issues with the Crown. The Accused-Applicants, therefore, requested a permanent stay of proceedings. In an unprecedented turn of events, the Court was asked to rule on a request that, if granted, had the potential to overturn a verdict delivered by a discharged jury.

After conducting an exhaustive study of the Indigenous perspective, which, in the Court's view, was essential to understanding this case and falls within the ambit of the courts' responsibility to take part in reconciliation with Indigenous peoples, Justice Bourque ruled in favour of the Accused-Applicants, not only on the question of rights derived from treaties, but also on that of Aboriginal rights.

Justice Bourque thus concluded that the Accused-Applicants enjoyed protected rights stemming from the treaty forming the Covenant Chain, i.e. the right to trade tobacco and the...