R. v. Gladstone
|R. v. Gladstone|
|Hearing: November 27-29, 1995
Judgment: August 21, 1996
|Full case name||Donald Gladstone and William Gladstone v. Her Majesty The Queen|
|Citations|| 2 S.C.R. 723|
|Ruling||Gladstone appeal allowed|
|Chief Justice: Antonio Lamer
Puisne Justices: Gérard La Forest, Claire L'Heureux-Dubé, John Sopinka, Charles Gonthier, Peter Cory, Beverley McLachlin, Frank Iacobucci, John C. Major
|Majority||Lamer C.J., joined by Sopinka, Gonthier, Cory, Iacobucci and Major JJ.|
|Dissent||La Forest J.|
|R. v. Van der Peet,  2 S.C.R. 507|
R. v. Gladstone,  2 S.C.R. 723 is a leading Supreme Court of Canada decision on non-treaty aboriginal rights under section 35 of the Constitution Act, 1982. The Court modified the Sparrow test for the extinguishment of aboriginal rights to give more deference to the government in protecting commercial fishing rights.
William and Donald Gladstone were members of the Heiltsuk Band in British Columbia. They were both charged with selling herring spawn contrary to the federal Fisheries Act. In their defence, the brothers claimed that they had a right to sell herrings under section 35 of the Constitution Act, 1982. At trial, they presented evidence showing that trade of herring spawn was a significant part of the Hieltsuk band's way of life prior to contact.
Opinion of the Court
Chief Justice Lamer, for the majority, found that there was an aboriginal right to sell herring spawn under the Van der Peet test. In analysing the rights infringement he rejected prioritizing limited natural resources as described in R. v. Sparrow. Instead, he suggested that in the regulation of commercial fishing the regard should be given to regional fairness among all people when distributing fishing resources.
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