R. v. Cardinal, (1977) 4 A.R. 1 (CA)

• Judge: Clement, Lieberman and Morrow, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: April 29, 1977
• Citations: (1977), 4 A.R. 1 (CA)

R. v. Cardinal (1977), 4 A.R. 1 (CA)

MLB headnote and full text

R. v. Cardinal

Indexed As: R. v. Cardinal

Alberta Supreme Court

Appellate Division

Clement, Lieberman and Morrow, JJ.A.

April 29, 1977.

Summary:

This case arose out of a charge against the accused of hunting moose at a prohibited time and place contrary to s. 15 of the Wildlife Act, R.S.A. 1970, c. 391. The accused Indian shot a moose on unposted fenced private farmland. The accused argued that he was entitled to go on the land and hunt, because it was not posted under the Petty Trespass Act, R.S.A. 1970, c. 273, s. 2 and that he therefore had a right of access to it within the meaning of s. 12 of the Alberta Natural Resources Transfer Act, S.C. 1930, c. 21. The accused was acquitted on a trial de novo. The Crown appealed.

The Alberta Court of Appeal allowed the Crown's appeal and convicted the accused. The Court of Appeal held that hunters were in no better position than any one else with regard to unposted land and that the accused was a trespasser. The Court of Appeal held that the creation of an offence for trespassing on posted land in the Petty Trespass Act did not mean that there was free access to unposted land. The Court of Appeal held that, since the accused was a trespasser on the land, the land did not constitute "any other lands to which the said Indians may have a right to access" within the meaning of s. 12 of the Alberta Natural Resources Transfer Act.

Fish and Game - Topic 461

Right to hunt - Right of access to private lands - The Alberta Court of Appeal stated that in Alberta hunters who enter private lands have no greater rights than other trespassers and that hunters have no right of access to private land except with the permission of the owner.

Fish and Game - Topic 464

Right to hunt - Right of access to private lands - Effect of a statute which created an offence for the entry of "posted" lands - Petty Trespass Act, R.S.A. 1970, c. 273, s. 2 - The Alberta Court of Appeal stated that the Petty Trespass Act did not confer on hunters the right to enter unposted lands.

Fish and Game - Topic 843

Indian and Eskimo rights - Right to hunt for food - Extent of the right to hunt for food - Meaning of the words "any other lands to which the said Indians may have a right of access" in the Alberta Natural Resources Transfer Act, S.C. 1930, c. 21, s. 12 - The accused Indian was charged with hunting moose at a prohibited time and place - The accused shot a moose on unposted fenced private farmland with out the owner's consent and argued that he was entitled to go on the land to hunt, because it was not posted - The Alberta Court of Appeal held that hunters were in no better position than anyone else with regard to such land and that the accused had no right of access to it within the meaning of s. 12 of the Alberta Natural Resources Transfer Act.

Fish and Game - Topic 6148

Offences - Evidence and proof - Burden of proof on accused - Wildlife Act, R.S.A. 1970, c. 391, s. 102 - The accused Indian was charged with shooting a moose at a prohibited time and place under s. 15 of the Wildlife Act - The Alberta Court of Appeal held that under s. 102 of the Wildlife Act the burden was on the accused to prove his entitlement to shoot the moose - See paragraphs 20 to 21.

Statutes - Topic 1569

Interpretation - Construction where meaning is not plain - Implied meaning - Express language necessary to in fringe on public or private rights - The Alberta Court of Appeal stated that it is a normal canon of construction of a statute that it will not be taken to destroy recognized rights without specific words to that effect or unavoidable inference - The Appellate Division found that the creation of an offence for trespassing on posted land in s. 2 of the Petty Trespass Act, R.S.A. 1970, c. 273, did not mean that there was to be free access to unposted land - See paragraph 9.

Cases Noticed:

R. v. Prince et al., [1963] 1 C.C.C. 129, not folld. [para. 7].

Myran et al. v. The Queen, [1976] 2 S.C.R. 137; 5 N.R. 551; 23 C.C.C.(2d) 73, appld. [para. 8].

R. v. Wesley, [1932] 2 W.W.R. 337; 26 Alta. L.R. 433; 58 C.C.C. 269, refd to. [para. 33].

R. v. Little Bear (1958), 25 W.W.R.(N.S.) 580, affd. 26 W.W.R.(N.S.) 335, refd to. [para. 35].

R. v. Strongquill (1953), 8 W.W.R.(N.S.) 247, refd to. [para. 36].

Statutes Noticed:

Alberta Natural Resources Transfer Act, S.C. 1930, c. 21, sect. 12 [paras. 2, 31].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 730(2) [para. 21].

Indian Act, R.S.C. 1970, c. I-6, sect. 88 [para. 30].

Petty Trespass Act, R.S.A. 1970, c. 273, sect. 2 [para. 7]; sect. 8 [para. 9].

Wildlife Act, R.S.A. 1970, c. 391, sect. 15 [paras. 1, 17]; sect. 20 [paras. 4, 22]; sect. 102 [para. 20].

Counsel:

W. Henkel, Q.C., for the appellant;

R.F. Roddick, for the respondent.

This case was heard at Edmonton, Alberta, before CLEMENT, LIEBERMAN and MORROW, JJ.A., of the Alberta Supreme Court, Appellate Division.

On April 29, 1977, the judgment of the Appellate Division was delivered and the following opinions were filed:

CLEMENT, J.A. - see paragraphs 1 to 11

MORROW, J.A. - see paragraphs 12 to 41

LIEBERMAN, J.A., concurred with CLEMENT, J.A.