From JFLLaw.ca By Sara Mainville, Isabel Klassen-Marshall, July 24th, 2024
On June 7th, the Provincial Court of Nova Scotia issued a decision in R. v. Marshall et al, decisively shutting down an Aboriginal and Treaty rights defense in a high-profile cannabis case under the Cannabis Act and the Excise Act in the decision.[1] The defendants, who operated cannabis dispensaries on Millbrook First Nation, argued that their activities were protected by inherent or treaty rights. However, the court found their evidence insufficient, setting a significant precedent for Indigenous-run cannabis businesses across Canada. This ruling underscores the complex interplay between Indigenous rights and modern regulatory frameworks, raising pivotal questions about the future of Indigenous sovereignty claims and economic development for First Nations in the cannabis industry.
Facts of the Case
Mr. Darren Marshall, Mr. Jason Robert Brooks, Ms. Alicia Dawn Brooks, and Mr. Matthew Alexander (“the defendants”) were charged with various offences under the Cannabis Act and the Excise Act related to their operation of “marijuana shacks” on Millbrook First Nation. [2] The defendants filed a Notice of Constitutional Question, through which they had intended to argue and lead expert evidence proving that they have an Aboriginal and/or Treaty right to their cannabis dispensary operations, and that these rights exempt them from being charged under the aforementioned criminalizing pieces of legislation.
Was the Treaty/Aboriginal Rights defence “manifestly frivolous?”
In an application to summarily dismiss a Notice of Constitutional Question, the defendant’s application must meet the high standard of being “manifestly frivolous.”[3] An application is “manifestly frivolous” when, even if the evidence led by the applicant is assumed to be true, that evidence will not be enough to support their legal claim. In this case, the Court found that the defendant’s Notice met this threshold, citing a lack of sufficient evidence to prove an Aboriginal or Treaty right to trade cannabis.
| Dr. Konstantia Koutouki’s Report: Claimed Indigenous peoples likely used cannabis before European contact but failed to show that Mi’kmaw people specifically used or traded cannabis. |
| Dr. W. Newbigging’s Report: Stated that Mi’kmaw traded hemp with the St Lawrence Iroquoian peoples for fishing nets and rope but didn’t connect this trade to cannabis or its psychoactive use. |
The evidence led by the defendants consisted of two expert reports, both of which failed to connect Mi’kmaw to the trade of cannabis in a way that could satisfy either the “integral to a distinctive culture test” from R v Van der Peet or the requirements for finding a Treaty protected right.
How did the Court apply the test for Aboriginal and Treaty rights?
In describing the legal context for proving Aboriginal rights, the Court relied on the ‘integral to a distinctive culture’ test from Van der Peet in which a claimant must “demonstrate that a practice, custom or tradition was integral to the [I]ndigenous community’s distinctive existence and relationship to the land in the period before European contact.”[4] The Court emphasized that the relevant time period for proving that a right existed in the past is prior to European contact.[5]
As discussed in other JFK blog posts, this arbitrary temporal limit and the test’s focus on specific rights represents a paternalistic and frozen understanding of Indigenous cultures and legal traditions.[6] Recently, a Quebec decision, R v Montour, proposed a new test for proving Aboriginal rights that would focus on “whether and how Indigenous legal systems support collective practices that can be viewed as Aboriginal rights under Canadian law.”[7] Currently on appeal before the Court of Appeal of Quebec, Montour has the potential to reshape the approach of Canadian courts to Aboriginal rights by removing the ‘integral to a distinctive culture’ requirement from Canadian jurisprudence. However, at present this case holds no binding authority in Nova Scotia. Although the defendants referred to Montour in their Notice, the Court reproached them for only vaguely alluding to Montour and other cases without explaining how those cases supported their claim that an Aboriginal or Treaty right to trade in cannabis could be proven in their proceeding.[8]
With respect to Treaty right, the Court emphasized that there must be evidence that the historic community traded cannabis before the Treaty, or that cannabis was reasonably contemplated as a traded item at the time of the Treaty.[9] The Court pointed to R. v Marshall; R. v Bernard 2005 SCC 220 as cases where the claimed right met this standard.[10]
What was the evidence?
The defendants presented two expert reports by Dr. Konstantia Koutouki of the University of Montreal and Dr. W. Newbigging that were meant to demonstrate the existence of an Aboriginal or Treaty right to trade cannabis. The Court found that neither report provided an evidentiary basis upon which the defense of an Aboriginal or Treaty right could proceed.
Although Dr. Koutoki’s report stated that Indigenous peoples in North America likely did use cannabis prior to European contact, the Court criticized her report for being unclear about where and how cannabis was used pre-contact, and for providing no evidence that the Indigenous population in Mi’kma’ki were one of the Indigenous peoples who had used cannabis.[11] Her report was criticized for failing to connect cannabis to trade or treaties in any way.[12] The Court also rejected Dr. Koutoki’s proposition that since cultural genocide has resulted in gaps in evidence about Indigenous cannabis practices, it is justifiable to gloss over this evidentiary gap and establish that an Aboriginal right to trade cannabis exists.[13] For these reasons, the Court found that Dr. Koutoki’s report did not provide an evidentiary basis for the defendants’ application.
Dr. Newbigging’s report stated that Mi’kmaw traded with the St Lawrence Iroquoian peoples to obtain hemp which was used for fishing nets, rope, and possibly bowstrings.[14] The Court found that this report did not provide the evidence required to prove an Aboriginal or Treaty right as there was no evidence that Mi’kmaw traded hemp with others, including Europeans, or used the plant as a psychoactive substance.[15]
What did the Court say about reconciliation?
At the beginning of the judgement, the Court recognized that “we are all Treaty people, but how the Treaties are interpreted must be based on a foundation that warrants consideration.”[16] The Court also noted at the end of the judgement that the Court is supportive of the advancement of the law on Aboriginal and Treaty rights as required by truth and reconciliation, but that this advancement requires appropriate evidence and legal analysis.[17]
Sidebar: the Urban Cannabis Stores purporting to be exercising First Nation jurisdiction in Ontario:
What does this case mean for Indigenous Cannabis businesses?
The case demonstrates that if the Crown decides to enforce the Cannabis Act and the Excise Act against unlicenced Indigenous-run cannabis businesses, claiming an Aboriginal or Treaty right defence to such charges will likely not be successful without a more detailed and relevant evidentiary record than was presented in R. v. Marshall et al. Aboriginal rights litigation can be time-consuming, costly, and is conducted through tests created by the Canadian legal system that are at times outdated and paternalistic. As such, it may be more fruitful to consider political and negotiated solutions advanced by First Nation themselves, to asserting and exercising jurisdiction in the area of cannabis regulation that aligns with the goals of the federal Cannabis Act.
JFK is honoured to be working closely with Indigenous governments who have decided to regulate cannabis activities and licence their own stores within First Nation reserves, and it is about time that Canada begins working in partnership to properly recognize and support this important and very legitimate role for First Nation governments. We are committed to efforts to recognize inherent jurisdiction of Indigenous governments and we are concerned by Individual businesses and associations running with this jurisdiction without the benefit of formal community support and engagement for these assertions to hold water.
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[1] R. v. Marshall et al., 2024 NSPC 33 at para 4 [Marshall].
[2] R. v. Cope et al., 2024 NSPC 35 at paras 5, 6 [Cope]
[3] R. v. Haevischer, 2023 SCC 11 at para 66.
[4] Marshall, supra note 1 at para 10.
[5] Ibid.
[6] Lara Koerner-Yeo and Brendan Schatti, “Update Part I: Attorney General of Quebec Appeals trailblazing R v Montour and White decision” (19 March 2024) JFK Law LLP.
[7] Ibid.
[8] Marshall, supra note 1 at paras 42 and 44.
[10] Ibid.
[11] Ibid, at paras 32 and 33.
[13] Ibid.
[15] Ibid, at paras 35 and 37.
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