Digest: R v Pierone, 2018 SKCA 30

• Date: April 27, 2018

Reported as: 2018 SKCA 30

Docket Number: CACR 2987 , CA17141

Court: Court of Appeal

Date: 2018-04-27

Judges:

• Jackson
• Caldwell
• Schwann

Subjects:

• Regulatory Offence � Wildlife Act � Appeal
• Regulatory Offence � Wildlife Act � Unlawful Hunting � Treaty Rights
• Aboriginal Law � Hunting and Fishing Rights

Digest: The appellant appealed the decision of a summary conviction appeal court judge to substitute a conviction for his acquittal after trial (see: 2017 SKQB 171). The appellant had been charged with unlawfully hunting under s. 25(1)(a) of The Wildlife Act, 1998. The appellant, a status Indian from Treaty 5 territory, shot a moose in a dry slough bottom located on a private farm that was within Treaty 4 territory in Saskatchewan. The slough was adjacent to a grid road. There were no posted signs nor was there a fence around the slough. No houses or buildings were visible from the slough. At trial the Crown took the position that the appellant was not lawfully entitled to hunt within Treaty 4 territory on unoccupied Crown lands or any other lands to which Treaty 4 Indians have a right of access pursuant to the Natural Resources Transfer Agreement, 1930. It did not make any arguments regarding whether the land had been �taken up� or was being put to a visible use incompatible with hunting as was required in order to displace the appellant�s right to hunt as described in R v Badger. The trial judge rejected the Crown�s argument that Treaty 5 status precluded the appellant from exercising his treaty right to hunt in Treaty 4 territory and found that the site of the kill was not land that was being put to any visible use incompatible with the appellant�s right to hunt. In its summary conviction appeal, the Crown conceded that the appellant was lawfully entitled to hunt within Treaty 4 territory. The appeal judge characterized the appeal as whether or not the trial judge made a palpable and overriding error in rendering the judgment dismissing the charge against the appellant. He concluded that there was no basis in the facts or circumstances for any conclusion other than that the appellant was guilty of the charge and set aside the acquittal.
HELD: The appeal was allowed, the conviction entered by the summary conviction appeal judge quashed and the dismissal of the information against the appellant reinstated. The court found that because of problems with the nature of the Crown�s appeal to the summary conviction...