R. v. Castonguay (D.) et al., (2003) 271 N.B.R.(2d) 128 (PC)

• Judge: LeBlanc, P.C.J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: November 14, 2003
• Jurisdiction: New Brunswick
• Citations: (2003), 271 N.B.R.(2d) 128 (PC);2003 NBPC 16

R. v. Castonguay (D.) (2003), 271 N.B.R.(2d) 128 (PC);

    271 R.N.-B.(2e) 128; 712 A.P.R. 128

MLB headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [2004] N.B.R.(2d) TBEd. AP.026

Her Majesty the Queen v. Donald Castonguay, Élie Castonguay, Raymond Castonguay, Roger Castonguay and François Faucher

(2003 NBPC 16)

Indexed As: R. v. Castonguay (D.) et al.

New Brunswick Provincial Court

LeBlanc, P.C.J.

November 14, 2003.

Summary:

The five defendants were charged with the illegal cutting, removal and possession of timber, contrary to s. 67 of the Crown Lands and Forests Act (N.B.). Three of them were charged with interfering with a forest service officer in the exercise of his authority, con­trary to ss. 66(1)(a) and 66(2) of the Act. The defendants admitted that the prosecution had established all the elements of the of­fences of cutting, removal and possession of timber, but claimed their conduct was lawful because they were aboriginal, specifically Métis, and their actions were protected by s. 35 of the Constitution Act, 1982.

The New Brunswick Provincial Court rejected the defence to the cutting, removal and possession of timber and convicted the defendants. On the charge of obstructing a forest service officer, the court convicted two defendants (see paras. 79-111) and acquitted the other (see paras. 112-116).

Forest and Forest Products - Topic 5204

Offences - General - Obstructing a forest service officer in the exercise of his au­thority - The defendants were charged with obstructing a forest service officer in the exercise of his authority, contrary to ss. 66(1)(a) and 66(2) of the Crown Lands and Forests Act (N.B.) - The New Bruns­wick Provincial Court noted that the word "obstruct" is not de­fined in the Act, and held that, given the context of the word in section 66, and the fact that the officer must be obstructed in the exercise of his authority, the word "obstruct", as used in section 66 of the Act, means wil­fully interfere with or hin­der the per­formance of the forest service officer's work - See paragraphs 81 to 82.

Forests and Forest Products - Topic 5245

Offences - Illegal cutting, removal or possession of timber - Defences - [See Indians, Inuit and Métis - Topic 6025 ].

Forests and Forest Products - Topic 5246

Offences - Illegal cutting, removal or possession of timber - Crown lands - [See Indians, Inuit and Métis - Topic 6025 ].

Indians, Inuit and Métis - Topic 6025

Particular aboriginal or treaty rights - Harvesting trees - The defendants were charged with the illegal cutting, removal and possession of timber, contrary to s. 67 of the Crown Lands and Forests Act (N.B.) - The impugned acts occurred in the St. Quentin area - The defendants admitted that the prosecution had proven all the elements of the offences but claimed their conduct was lawful because they were aboriginal, specifically Métis, and their actions were protected by s. 35 of the Constitution Act, 1982 - The New Bruns­wick Provincial Court rejected this defence and convicted the defendants - The defen­dants were unable to establish any connec­tion with an historic Métis com­munity in the St. Quentin area - In addi­tion, an an­cestral link that arose 10 or more genera­tions ago was an insuffi­cient basis on which to claim rights as Métis - Moreover, there was no evidence of the continuous existence of a Métis community in St. Quentin, and no evidence that such a com­munity had a specific practice, cus­tom or tradition that was an integral part of its distinctive culture - There was no evi­dence that the current practice, custom or tradi­tion was being exercised in continuity with the practices, customs and traditions of a previous period - See paragraphs 1 to 78.

Cases Noticed:

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 11].

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, consd. [para. 11].

Nowegijick v. Minister of National Reve­nue et al., [1983] 1 S.C.R. 29; 46 N.R. 41, refd to. [para. 12].

R. v. Powley (S.) et al. (2003), 308 N.R. 201; 177 O.A.C. 201 (S.C.C.), refd to. [para. 16].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 17].

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207, consd. [para. 17].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201, refd to. [para. 19].

R. v. Powley (S.) et al. (2001), 141 O.A.C. 121; 53 O.R.(3d) 35 (C.A.), consd. [para. 21].

R. v. Castonguay (J.-D.) (2002), 254 N.B.R.(2d) 213; 664 A.P.R. 213; 2002 NBPC 26, consd. [para. 68].

R. v. Castonguay (R.) (2002), 257 N.B.R.(2d) 67; 674 A.P.R. 67; 2002 NBPC 31, consd. [para. 69].

R. v. Castonguay (D.) et al. (2003), 265 N.B.R.(2d) 105; 695 A.P.R. 105 (Q.B.), ment. [para. 70].

R. v. Chiasson (O.) (2001), 239 N.B.R.(2d) 1; 619 A.P.R. 1; 2001 NBPC 5, consd. [para. 71].

R. v. D.W. (1991), 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397 (S.C.C.), consd. [para. 89].

Statutes Noticed:

Constitution Act, 1982, sect. 35 [para. 8].

Crown Lands and Forests Act, S.N.B. 1980, c. C-38.1, sect. 66 [para. 81]; sect. 67 [para. 33].

Counsel:

No names mentioned.

The matter was heard by LeBlanc, P.C.J., of the New Brunswick Provincial Court, who rendered the following decision on Novem­ber 14, 2003.