R v Gladstone

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R v Gladstone
Supreme Court of Canada
Hearing: November 27–29, 1995
Judgment: August 21, 1996
Full case name Donald Gladstone and William Gladstone v Her Majesty The Queen
Citations [1996] 2 S.C.R. 723
Ruling Gladstone appeal allowed
Court Membership
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
Reasons given
Majority Lamer C.J., joined by Sopinka, Gonthier, Cory, Iacobucci and Major JJ.
Concurrence L’Heureux‑Dubé J.
Concurrence McLachlin J.
Dissent La Forest J.
Laws Applied
R v Van der Peet, [1996] 2 S.C.R. 507

R v Gladstone, [1996] 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 Heiltsuk band's way of life prior to contact. The Court found that the Heiltsuk have a pre-existing right to harvest Herring (eggs) and that there is a commercial component to this right.

Opinion of the Court[edit]

Chief Justice Lamer, for the majority, found that there was an aboriginal right to sell herring spawn under the Van der Peet test. In analyzing 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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