R. v. Belhumeur (D.J.), (2007) 301 Sask.R. 292 (PC)

• Judge: Morris, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: October 18, 2007
• Jurisdiction: Saskatchewan
• Citations: (2007), 301 Sask.R. 292 (PC);2007 SKPC 114

R. v. Belhumeur (D.J.) (2007), 301 Sask.R. 292 (PC)

MLB headnote and full text

Temp. Cite: [2007] Sask.R. TBEd. OC.078

Her Majesty the Queen v. Donald Joseph Belhumeur

(2007 SKPC 114)

Indexed As: R. v. Belhumeur (D.J.)

Saskatchewan Provincial Court

Morris, P.C.J.

October 18, 2007.

Summary:

The accused was charged with angling without a licence, contrary to s. 11(1) of the Fisheries Regulations. The accused asserted that he was a Metis and that he had an aboriginal right to fish for food.

The Saskatchewan Provincial Court found the accused not guilty.

Fish and Game - Topic 809

Indian, Inuit and Métis rights - General principles - Aboriginal or treaty rights - Proof of - [See both Fish and Game - Topic 965 ].

Fish and Game - Topic 965

Indian, Inuit and Métis rights - Right to fish and regulation of Indian fishery - Métis - A conservation officer observed the accused angling through the ice on Katepwa Lake east of Fort Qu'Appelle - The accused was charged with angling without a licence - The accused asserted that he was a Metis and that he had an aboriginal right to fish for food - The Saskatchewan Provincial Court found the accused not guilty - The accused established that he was entitled to exercise an aboriginal right to fish for food at Katepwa Lake within the meaning of s. 35(1) of the Constitution Act, 1982, and according to the test in R. v. Powley (S.C.C.) - The court found that there was a regional historic rights-bearing community within the Qu'Appelle Valley and environs; there existed a contemporary rights-bearing community in the Qu'Appelle Valley and environs; the accused was a member of the contemporary community; the "effective-control" period was from 1882 to the early 1900's; fishing was integral to the Metis culture in the Qu'Appelle Valley and environs; and harvesting and fishing for food had continued to be an important way of life for the Metis.

Fish and Game - Topic 965

Indian, Inuit and Métis rights - Right to fish and regulation of Indian fishery - Métis - A conservation officer observed the accused angling through the ice on Katepwa Lake east of Fort Qu'Appelle - The accused was charged with angling without a licence - The accused asserted that he was a Metis and that he had an aboriginal right to fish for food - The defence submitted that the Metis rights at issue were the Metis rights of the whole Metis nation and that the regional community at issue was the historic parklands/grasslands Metis community - The Crown argued that the defence took too broad an approach to defining "community" for the purposes of the test in R. v. Powley (S.C.C.) - The Saskatchewan Provincial Court stated that it was not prepared to take the sweeping approach urged by the defence, i.e., to declare that the whole parklands/grasslands area constituted a Metis community - The court held that rights were possessed by individual communities that might make up a nation and it adopted the regional approach to defining Metis communities in R. v. Laviolette (Sask. Prov. Ct.) - The court was satisfied that the evidence showed that the "regional community" was the Qu'Appelle Valley and environs which extended to the City of Regina - The court concluded that the accused, a Metis person living in Regina who had established that connections existed with the Qu'Appelle Valley Metis historic and contemporary community, had the right to fish for food pursuant to s. 35(1) of the Constitution Act, 1982.

Indians, Inuit and Métis - Topic 806

Personal or legal rights - Métis - [See both Fish and Game - Topic 965 ].

Indians, Inuit and Métis - Topic 6012

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

Cases Noticed:

R. v. Norton (S.H.) et al. (2005), 263 Sask.R. 128; 2005 SKPC 46, refd to. [para. 10, footnote 1].

R. v. Powley (S.) et al., [2003] 2 S.C.R. 207; 308 N.R. 201; 177 O.A.C. 201, appld. [para. 137].

R. v. Powley, [1999] 1 C.N.L.R. 153 (Ont. C.J. Prov. Div.), refd to. [para. 147].

R. v. Laviolette (R.) (2005), 267 Sask.R. 291 (Prov. Ct.), consd. [para. 148].

Counsel:

Mitch McAdam, for the Crown;

Clement Chartier, Q.C., Michelle Leclair Harding and Jason Madden, for the accused.

This matter was heard before Morris, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on October 18, 2007.