R. v. Babin (J.P.), 2013 NSSC 434

• Judge: Chipman, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 17, 2013
• Jurisdiction: Nova Scotia
• Citations: 2013 NSSC 434;(2013), 339 N.S.R.(2d) 107 (SC)

R. v. Babin (J.P.) (2013), 339 N.S.R.(2d) 107 (SC);

    1073 A.P.R. 107

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. JA.040

John Paul Babin (appellant) v. Her Majesty the Queen (respondent)

(Yar. No. 378079; 2013 NSSC 434)

Indexed As: R. v. Babin (J.P.)

Nova Scotia Supreme Court

Chipman, J.

December 17, 2013.

Summary:

The accused appealed his conviction under s. 22(7) of the Fishery (General) Regulations for fishing gillnets that he was not authorized to fish pursuant to his licence.

The Nova Scotia Supreme Court dismissed the appeal.

Fish and Game - Topic 965

Indian, Inuit and Métis rights - Right to fish and regulation of Indian fishery - Métis - The accused was charged under s. 22(7) of the Fishery (General) Regulations with fishing gillnets that he was not authorized to fish pursuant to his licence - The accused admitted the facts alleged to constitute the offence, but asserted that he was exercising an existing Métis aboriginal right to "fish for food" that was infringed without justification - The trial judge dismissed the accused's Métis aboriginal right claim and convicted the accused - The accused appealed, asserting that the trial judge erred in the identification of the relevant time frame and the interpretation of the "effective European control" - The Nova Scotia Supreme Court dismissed the appeal - The trial judge correctly interpreted R. v. Powley (S.) (SCC 2003) to conclude that the date of effective European control for the area in question was 1670 - Further, he explicitly preferred the Crown's expert's evidence in concluding there was no proof on a balance of probabilities that there was established at any time the existence of an identifiable, historic rights-bearing Métis community in the relevant area with a degree of continuity and stability to support a site specific aboriginal right claim - See paragraphs 1 to 17.

Indians, Inuit and Métis - Topic 6012

Aboriginal rights - Evidence and proof - [See Fish and Game - Topic 965 ].

Trials - Topic 1181

Summary convictions - Appeals - General - The Nova Scotia Supreme Court stated that "the responsibility of the Summary Conviction Appeal Court is to review the evidence at trial, re-examine and re-weigh it, but only for the purpose of determining whether it is reasonably capable of supporting the trial judge's conclusion." - See paragraph 11.

Cases Noticed:

R. v. Powley (S.) et al., [2003] 2 S.C.R. 207; 308 N.R. 201; 177 O.A.C. 201; 2003 SCC 43, appld. [para. 5].

R. v. Nickerson (W.S.) (1999), 178 N.S.R.(2d) 189; 549 A.P.R. 189 (C.A.), refd to. [para. 9].

R. v. R.H.L. (2008), 270 N.S.R.(2d) 123; 865 A.P.R. 123; 2008 NSCA 100, refd to. [para. 10].

R. v. Francis (T.) (2011), 311 N.S.R.(2d) 88; 985 A.P.R. 88; 2011 NSCA 113, refd to. [para. 10].

R. v. MacGregor (R.O.) (2012), 313 N.S.R.(2d) 281; 990 A.P.R. 281; 2012 NSCA 18, refd to. [para. 10].

R. v. Prest (T.E.) (2012), 315 N.S.R.(2d) 382; 998 A.P.R. 382; 2012 NSCA 45, refd to. [para. 10].

R. v. Pottie (A.F.) (2013), 330 N.S.R.(2d) 361; 1046 A.P.R. 361; 2013 NSCA 68, refd to. [para. 10].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 12].

R. v. R.E.M. (2008), 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 12].

Authors and Works Noticed:

McWilliams' Canadian Criminal Evidence (4th Ed.), vol. 1, c. 12, pp. 117 to 127 [para. 13].

Counsel:

Andrew S. Nickerson, Q.C., for the appellant;

Gerald A. Grant, for the respondent.

This appeal was heard and decided at Yarmouth, Nova Scotia, on December 17, 2013, by Chipman, J., of the Nova Scotia Supreme Court, who delivered the following written reasons for decision on January 20, 2014.