May 15, 2017

Case Brief: R. v. Sparrow, [1990] 1 S.C.R. 1075

R. v. Sparrow, [1990] 1 SCR 1075

Facts: This appeal required the Supreme Court to explore for first time scope of s. 35(1) of the Constitution Act, 1982. The appellant was charged under the Fisheries Act with fishing with a drift net longer than permitted by the terms of the Band’s Indian food fishing license. The appellant admitted the facts but defended against the charge on the basis of an existing Aboriginal right to fish and that the net length restriction was inconsistent with s. 35(1).

Issue: Whether Parliament’s power to regulate fishing is limited by s. 35(1).

Holding: The Supreme Court dismissed the appeal and cross-appeal and sent the constitutional question back to trial to be answered according to the analysis set out in its reasons.

Majority Opinion Reasoning: Dickson CJ and La Forest J (Lamer, Wilson, L'Heureux-Dube and Sopinka JJ)(McIntyre took no part): Aboriginal rights are not extinguished merely by their being controlled in great detail by the regulations under the Fisheries Act. Nothing in that Act or its detailed regulations demonstrated a clear and plain intention to extinguish the Aboriginal right to fish. Fishing permits were simply a manner of controlling the fisheries, not of defining underlying Aboriginal right. Historical Crown policy can neither extinguish existing Aboriginal right without a clear intention nor delineate the Aboriginal right. The nature of government regulations cannot be determinative of content or scope of existing Aboriginal rights. Government policy can regulate the exercise of the Aboriginal right but such regulation must be in keeping with s. 35(1).


“Existing Aboriginal Rights”: Term must be interpreted flexibly so as to permit their evolution over time and must reject “frozen rights” approach.

“Recognized and Affirmed”: Framework for interpreting this term must include appreciation of history and policy between Crown and Aboriginal peoples, and be construed in a purposive way, because the purposes of s.35 demand generous and liberal interpretation.

Section 35 Test: This is a two-part test that sets whether s. 35 rights are interfered, and if so, whether that interference is justified.

Part One - Interference: does the impugned legislation have the effect of interfering with the existing Aboriginal right? If “yes”, then prima facie infringement of s. 35 established and the following must be asked: (i) is limitation on Aboriginal right unreasonable?, (ii) does the limitation impose undue hardship?, and (iii) does the limitation deny s. 35 holders preferred means of exercising Aboriginal right? The onus is on the group challenging the legislation.

Part Two - Justification: once interference is established, then ask (i) is there a valid legislative objective? If “yes”, then (ii) does legislative objective uphold honour of Crown? The onus is on the Crown defending the impugned legislation.


“Sparrow Test”: Part One involves asking whether the effect of the restriction unnecessarily infringes the interests protected by the Aboriginal right, with the onus lying on the aboriginal claimant. Part Two involves the court inquiring whether the legislative objective is valid, which must be something more than a “public interest” justification because that is too vague and broad. If a valid objective is found, then is the honour of the Crown upheld? This is a key consideration whether the objective is justified. There must be a link with justification and restriction on the Aboriginal right. The justificatory standard is a heavy onus on the Crown but s. 35(1) requires that the Aboriginal right be given priority over the interests of other groups. Further questions are dependent on the circumstances of the inquiry, which may include (i) whether there has been as little infringement as possible in order to effect the desired result, (ii) whether fair compensation is available, and (iii) whether the Aboriginal group was consulted with respect to the measures being taken, however this is not an exhaustive list.

Dissenting Opinion(s) Reasoning: None