R. v. Bernard (S.C.), (2016) 444 N.B.R.(2d) 319 (TD)

• Judge: McLellan, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: September 29, 2015
• Jurisdiction: New Brunswick
• Citations: (2016), 444 N.B.R.(2d) 319 (TD);2016 NBQB 21

R. v. Bernard (S.C.) (2016), 444 N.B.R.(2d) 319 (TD);

    444 R.N.-B.(2e) 319; 1163 A.P.R. 319

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Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2016] N.B.R.(2d) TBEd. MR.007

Renvoi temp.: [2016] N.B.R.(2d) TBEd. MR.007

Stephen Charles Bernard (appellant) v. Her Majesty The Queen (respondent)

(S/A/9/10; 2016 NBQB 21; 2016 NBBR 21)

Indexed As: R. v. Bernard (S.C.)

Répertorié: R. v. Bernard (S.C.)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

McLellan, J.

January 27, 2016.

Summary:

Résumé:

The accused, a status Indian of a Mi'kmaq band in Nova Scotia, was charged with unlawfully hunting deer in the Saint John, New Brunswick, area without a valid licence, contrary to s. 32(1)(b) of the Fish and Wildlife Act. He asserted an aboriginal right to hunt for food in the area, which he asserted was a traditional Mi'kmaq area.

The New Brunswick Provincial Court, in a judgment reported (2010), 365 N.B.R.(2d) 207; 939 A.P.R. 207, convicted the accused and imposed the mandatory minimum sentence of seven days' imprisonment and a $2,000 fine. The trial judge arranged for a stay of the sentence pending a conviction appeal to the Court of Queen's Bench.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the conviction appeal, but exercised its inherent jurisdiction to stay the mandatory minimum sentence to avoid an "injustice".

Civil Rights - Topic 3151

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Sentencing (incl. imprisonment and parole and mandatory minimum sentences) - [See Courts - Topic 2004 ].

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction (incl. parens patriae jurisdiction) - The accused was a status Indian of a Mi'kmaq band in Nova Scotia who argued that he had an aboriginal right to hunt in the Saint John, New Brunswick area, which was a traditional Mi'kmaq area - The trial judge found that the accused had not established the claimed aboriginal right - The self-represented accused had spent over 30 days in court asserting his right in good faith - At the time of hunting, the law supported his claim to the right to hunt in the area, but a subsequent Supreme Court of Canada decision overruled that case - The trial judge reluctantly imposed the mandatory minimum sentence of seven days' imprisonment and a $2,000 fine, finding that as a statutory court of inferior jurisdiction he had no inherent jurisdiction to stay the mandatory minimum sentence, even though it was unjust - The trial judge expressed concern over the appropriateness of litigating aboriginal treaty, rights and title issues in the context of criminal trials rather than finding a more effective, timely and fair method such as a civil or administrative order or finding to determine rights - The trial judge stayed the sentence pending an appeal from conviction and sentence - The New Brunswick Court of Queen's Bench, Trial Division, affirmed the conviction, but exercised its inherent jurisdiction to stay the mandatory minimum sentence to avoid an "injustice" - See paragraphs 29 to 39.

Fish and Game - Topic 809

Indian, Inuit and Métis rights - General principles - Aboriginal or treaty rights - Proof of - The accused, a status Indian of a Mi'kmaq band in Nova Scotia, was charged with unlawfully hunting without a licence in the Saint John, New Brunswick area (Fish and Wildlife Act, s. 32(1)(b)) - He asserted an aboriginal right to hunt for food in the area, which he asserted was a traditional Mi'kmaq area - The trial judge convicted the accused - An aboriginal right was not lost by abandonment or cessation of exercise if a traditional connection with the land had been substantially maintained by observance of the custom, tradition or practice, including a link to the resource in question - Here, the evidence showed that the Mi'kmaq had occupied the area at the time of contact with the French and continued to do so for at least a century afterward - However, there was presently no Mi'kmaq reserve in or near Saint John and no organized Mi'kmaq group there - There was no direct evidence of what became of the Mi'kmaq people who had actually hunted there - Under Van der Peet (1996 SCC), the community that had left the area could resume the practice of hunting where the necessary connection was established - The trial judge considered the effect of the return to Saint John by the accused's grandfather and the activity by the accused and his father - However, apart from the accused's personal presence in Saint John, there was no evidence of a modern day community of Mi'kmaq in the area - Neither the movement of the accused's grandfather to the area nor the accused's own exercise of the practice established the necessary connection, as the accused had failed to establish that he was a member of the original right-bearing Mi'kmaq community - The trial judge rejected the accused's argument that apart from the Mi'kmaq community, he alone had a personal aboriginal right to hunt in areas where Mi'kmaq had hunted several centuries ago - The New Brunswick Court of Queen's Bench, Trial Division, affirmed the decision and the conviction - See paragraphs 1 to 28.

Fish and Game - Topic 843

Indian, Inuit and Métis rights - Right to hunt - Extent of right - [See Fish and Game - Topic 809 ].

Fish and Game - Topic 2725

Offences - Sentence - Mandatory imprisonment - [See Courts - Topic 2004 ].

Indians, Inuit and Métis - Topic 6005

Aboriginal rights - Nature and scope of - [See Fish and Game - Topic 809 ].

Indians, Inuit and Métis - Topic 6012

Aboriginal rights - Evidence and proof - [See Fish and Game - Topic 809 ].

Indians, Inuit and Métis - Topic 6018

Aboriginal rights - Extinguishment - [See Fish and Game - Topic 809 ].

Cases Noticed:

Lavigne v. Ontario Public Service Employees' Union et al., [1991] 2 S.C.R. 211; 126 N.R. 161; 48 O.A.C. 241; 1991 CanLII 68, refd to. [para. 14].

R. v. Sappier (D.M.) et al., [2006] 2 S.C.R. 686; 355 N.R. 1; 309 N.B.R.(2d) 199; 799 A.P.R. 199; 2006 SCC 54, refd to. [para. 21].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, refd to. [para. 23].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 533; 247 N.R. 306; 179 N.S.R.(2d) 1; 553 A.P.R. 1; 1999 CanLII 666, refd to. [para. 24].

R. v. Powley (S.) et al., [2003] 2 S.C.R. 207; 308 N.R. 201; 177 O.A.C. 201; 2003 SCC 43, refd to. [para. 25].

R. v. Bernard (J.) (2003), 262 N.B.R.(2d) 1; 688 A.P.R. 1 (C.A.), refd to. [para. 30].

R. v. Caron (G.), [2011] 1 S.C.R. 78; 411 N.R. 89; 499 A.R. 309; 514 W.A.C. 309; 2011 SCC 5, refd to. [para. 37].

Counsel:

Avocats:

Rebecca J. Butler, for the appellant;

William B. Richards, for the respondent.

This appeal was heard on September 29, 2015, and January 7, 2016, before McLellan, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following judgment on January 27, 2016.