R. v. Morris,  2 S.C.R. 915, 2006 SCC 59, 2006 SCC 59 (2006)
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SUPREME COURT OF CANADACitation: R. v. Morris,  2 S.C.R. 915, 2006 SCC 59Date: 20061221Docket: 30328Between:Ivan Morris and Carl OlsenAppellants andHer Majesty the QueenRespondent- 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 WilliamIntervenersCoram: 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,  2 S.C.R. 915, 2006 SCC 59Ivan Morris and Carl Olsen Appellants v.Her Majesty The Queen Respondent andAttorney 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 IntervenersIndexed as: R. v. MorrisNeutral 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 columbiaAboriginal 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 protected by the North Saanich Treaty. The historical context indicates that the parties intended the treaty to include the full panoply of hunting practices in which the Tsartlip people had engaged before they agreed to relinquish control over their lands. One of those practices was night hunting and, as the trial judge acknowledged, night hunting by the Tsartlip includes, and always has included, night hunting with the aid of illuminating devices. Even on a literal construction, the language of the treaty supports the view that the right to hunt "as formerly" means the right to hunt according to the methods used by the Tsartlip at the time of and before the treaty. The right of the Tsartlip to hunt at night with illuminating devices has of necessity evolved from its pre-treaty tools to its current implements, and the use of guns, spotlights, and motor vehicles reflects the current state of the evolution of the Tsartlip's historic hunting practices. However, it is acknowledged that it could not have been within the common intention of the parties that the Tsartlip would be granted a right to hunt dangerously, since no treaty confers on its beneficiaries a right to put human lives in danger. This is confirmed by the language of the treaty itself, which restricts hunting to "unoccupied lands", away from any town or settlement. Since British Columbia is a very large province, it cannot plausibly be said that a night hunt with illumination is unsafe everywhere and in all circumstances, even within the treaty area at issue in this case. Accordingly, while s. 29 of the Wildlife Act, which prohibits hunting or trapping "without reasonable consideration for the lives, safety or property of other persons", is a limit that does not impair the treaty rights of aboriginal hunters and trappers, paras. (d) and (e) of s. 27(1), which apply without exception to the whole province, are overbroad and infringe the treaty right to hunt. Something less than an absolute prohibition on night hunting can address the concern for safety.  [25-35]  The relevant provisions of the Wildlife Act are valid provincial legislation under s. 92(13) of the Constitution Act, 1867. Since treaty rights to hunt lie squarely within federal jurisdiction, provincial laws of general application that are inapplicable because they impair "Indianness" may nonetheless be found to be applicable by incorporation under s. 88 of the Indian Act. While, on its face, s. 88 cannot be used to incorporate into federal law provincial laws that conflict with the terms of any treaty, the provinces may regulate treaty rights under certain circumstances. Provincial legislation of general application that interferes in an insignificant way with the exercise of that right do not infringe the right; but where, as in the case of s. 27(1)(d) and (e), such legislation is found to conflict with a treaty in a way that constitutes a prima facie infringement, the protection of treaty rights prevails and the provincial law cannot be incorporated under s. 88 of the Indian Act. [42-46]  Per McLachlin C.J. and Bastarache and Fish JJ. (dissenting): The impugned ban on night hunting with a firearm (s. 27(1)(d)) is valid provincial legislation that applies to the accused. The Wildlife Act falls in pith and substance within the province's powers. It is not directed at a federal head, like Indians, but more generally at safety, a matter within provincial power. The ban on night hunting is an integrated part of a broader provincial scheme applicable to all British Columbians and aimed at assuring the safety of the province's hunters and residents. Since this provision does not conflict with federal legislation, the doctrine of paramountcy has no application. Finally, where a provincial law of general application does not affect a treaty right, and does not otherwise touch upon core Indianness, that law applies ex proprio vigore, without recourse to s. 88 of the Indian Act. Provincial legislation that falls outside the internal limits on the treaty right that the parties to the treaty would have understood and intended does not encroach on the treaty right.   A treaty must be interpreted in a manner that best reconciles the interests of the parties to it. The right to hunt protected by the treaty is subject to an internal limit: it does not include the right to hunt in an inherently hazardous manner. Rather, the right to hunt must be exercised reasonably. Although, at the time the treaty was signed, the practice of hunting at night did not pose the same dangers as it does today, the parties to the treaty must have understood that the right to hunt did not carry with it a right to hunt dangerously. Furthermore, just as the methods and means of exercising the right should not be frozen in time, neither should the government's legitimate safety concerns. Adapting the exercise of treaty rights to modern weaponry without adapting the corollary legitimate safety concerns would lead to unacceptable results.    Here, s. 27(1)(d) of the Wildlife Act regulates the internal safety limit on the treaty right of the accused. A ban on night hunting with a firearm is a reasonable exercise of the Province's regulatory power in defining this internal limit. Since...
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