R. v. Morris, [2006] 2 S.C.R. 915, 2006 SCC 59, 2006 SCC 59 (2006)

Supreme Court of Canada

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R. v. Morris, [2006] 2 S.C.R. 915, 2006 SCC 59, 2006 SCC 59 (2006)

SUPREME COURT OF CANADA

Citation: R. v. Morris, [2006] 2 S.C.R. 915, 2006 SCC 59

Date: 20061221

Docket: 30328

Between:

Ivan Morris and Carl Olsen

Appellants and

Her Majesty the Queen

Respondent

- and -

Attorney General of Canada, Attorney General of Ontario,

Attorney General of Quebec, Attorney General of New Brunswick,

Attorney General for Saskatchewan, Attorney General of Alberta,

Eagle Village First Nation (Migizy Odenaw), Red Rock Indian Band,

Conseil de la Nation huronne-wendat, Te'mexw Treaty Association,

Chief Allan Claxton and Chief Roger William

Interveners

Coram: McLachlin C.J. and Bastarache, Binnie, Deschamps, Fish, Abella and Charron JJ.

Joint Reasons for Judgment:

(paras. 1 to 61)

Joint Dissenting Reasons:

(paras. 62 to 140)

Deschamps and Abella JJ. (Binnie and Charron JJ. concurring)

McLachlin C.J. and Fish J. (Bastarache J. concurring)

______________________________

R. v. Morris, [2006] 2 S.C.R. 915, 2006 SCC 59

Ivan Morris and Carl Olsen Appellants v.

Her Majesty The Queen Respondent and

Attorney General of Canada, Attorney General of Ontario,

Attorney General of Quebec, Attorney General of New Brunswick,

Attorney General for Saskatchewan, Attorney General of Alberta,

Eagle Village First Nation (Migizy Odenaw),

Red Rock Indian Band, Conseil de la Nation huronne-wendat,

Te'mexw Treaty Association, Chief Allan Claxton and Chief Roger William Interveners

Indexed as: R. v. Morris

Neutral citation: 2006 SCC 59.

File No.: 30328.

2005: October 14; 2006: December 21.

Present: McLachlin C.J. and Bastarache, Binnie, Deschamps, Fish, Abella and Charron JJ.

on appeal from the court of appeal for british columbia

Aboriginal law - Treaty rights - Right to hunt - Two members of Tsartlip Indian Band charged under provincial wildlife legislation of hunting with firearm during prohibited hours and hunting with illuminating device - Whether treaty right to hunt includes right to hunt at night with illuminating device - Whether provincial legislation of general application infringes band's treaty right to hunt - Whether provincial legislation applicable to band by virtue of s. 88 of Indian Act - Wildlife Act, S.B.C. 1982, c. 57, ss. 27(1)(d), (e), 29 - Indian Act, R.S.C. 1985, c. I-5, s. 88.

Constitutional law - Indians - Provincial wildlife legislation - Two members of Tsartlip Indian Band charged under provincial wildlife legislation of hunting with firearm during prohibited hours and hunting with illuminating device - Whether valid provincial legislation of general application inapplicable to band because it interferes with band's treaty right to hunt - Whether provincial legislation nonetheless applicable by virtue of s. 88 of Indian Act - Constitution Act, 1867, ss. 91(24), 92(13) - Indian Act, R.S.C. 1985, c. I-5, s. 88 - Wildlife Act, S.B.C. 1982, c. 57, s. 27(1)(d), (e).

The accused, both members of the Tsartlip Indian Band of the Saanich Nation, were hunting at night when they shot at a decoy deer set up by provincial conservation officers to trap illegal hunters. They were arrested and charged with several offences under British Columbia's Wildlife Act, including: (1) hunting wildlife with a firearm during prohibited hours (s. 27(1)(d)); (2) hunting by the use or with the aid of a light or illuminating device (s. 27(1)(e)); and (3) hunting without reasonable consideration for the lives, safety or property of other persons (s. 29). At trial, as a defence to the charges under s. 27(1), the accused raised their right "to hunt over the unoccupied lands . . . as formerly" under the North Saanich Treaty of 1852. They also introduced evidence that the particular night hunt for which they were charged was not dangerous. The trial judge found that "night hunting with illumination was one of the various methods employed by the Tsartlip [people] from time immemorial". However, despite the evidence that night hunting by Tsartlip hunters had yet to result in an accident, he nonetheless concluded that the accused did not have a treaty right to hunt at night because hunting at night with an illuminating device was "inherently unsafe". The trial judge entered convictions on count 1, conditionally stayed count 2 because of the rule against multiple convictions arising from the same delict, and entered acquittals on count 3. Both the summary conviction appeal judge and the majority of the Court of Appeal upheld the convictions based on the prohibition of night hunting (s. 27(1)(d)).

Held (McLachlin C.J. and Bastarache and Fish JJ. dissenting): The appeal should be allowed. The convictions are set aside and acquittals entered.

Per Binnie, Deschamps, Abella and Charron JJ.: The Tsartlip's right to hunt at night with the aid of illuminating devices is prot...

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