R. v. Chiasson (E.), (2012) 393 N.B.R.(2d) 326 (PC)

• Judge: LeBlanc, P.C.J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: September 06, 2012
• Jurisdiction: New Brunswick
• Citations: (2012), 393 N.B.R.(2d) 326 (PC);2012 NBPC 14

R. v. Chiasson (E.) (2012), 393 N.B.R.(2d) 326 (PC);

    393 R.N.-B.(2e) 326; 1017 A.P.R. 326

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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: [2012] N.B.R.(2d) TBEd. OC.004

Renvoi temp.: [2012] N.B.R.(2d) TBEd. OC.004

Her Majesty the Queen v. Eymard Chiasson

(04330211; 2012 NBPC 14; 2012 NBCP 14)

Indexed As: R. v. Chiasson (E.)

Répertorié: R. v. Chiasson (E.)

New Brunswick Provincial Court

LeBlanc, P.C.J.

September 6, 2012.

Summary:

Résumé:

The accused was charged with having hunted moose by means of a snare and bear by means of a trap, contrary to s. 32(1)(c) of New Brunswick's Fish and Wildlife Act. The accused's defence was that he had a right to hunt as he did by reason of his aboriginal status.

The New Brunswick Provincial Court rejected the defence and found the accused guilty.

Fish and Game - Topic 824

Indian, Inuit and Métis rights - Definitions - Indian defined - [See Indians, Inuit and Métis - Topic 6012 ].

Indians, Inuit and Métis - Topic 6012

Aboriginal rights - General - Evidence and proof - The accused was charged with having hunted moose by means of a snare and bear by means of a trap, at Allardville, New Brunswick, contrary to s. 32(1)(c) of New Brunswick's Fish and Wildlife Act - The accused's defence was that he had a right to hunt as he did by reason of his aboriginal status - The New Brunswick Provincial Court rejected the defence and found the accused guilty - The accused was not "an Indian within the meaning of s. 35 of the [Constitution Act, 1982]. He has to go back at least five generations before finding an obvious Indian ancestry. He can produce no evidence that family has since then celebrated Indian life and culture. His mother insisted that he not mention it when he was a child. His father categorically refused to talk about it. Therefore, the defendant's family did not practice an aboriginal culture. It is true that his family tree shows aboriginal ancestry; however, mere ancestral lineage must not bring about a recognition of individual aboriginal rights" - The court added that, besides occasional attendance at pow wows, which were activities open to the public, the accused did not produce any evidence in support of acceptance by the Indian community - The Allardville community was not an aboriginal community - See paragraphs 1 to 33.

Chasse et pêche - Cote 824

Droits des Indiens, Inuit et Métis - Définitions - Définition d'Indien - [Voir Fish and Game - Topic 824 ].

Indiens, Inuits et Métis - Cote 6012

Droits ancestraux - Généralités - Preuve - [Voir Indians, Inuit and Métis - Topic 6012 ].

Cases Noticed:

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207; 2001 SCC 33, consd. [para. 4].

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. 7].

R. v. Lavigne (G.) (2005), 283 N.B.R.(2d) 298; 740 A.P.R. 298; 2005 NBPC 8, affd. (2007), 319 N.B.R.(2d) 261; 823 A.P.R. 261; 2007 NBQB 171, refd to. [para. 7].

R. v. Hopper (R.) (2008), 331 N.B.R.(2d) 177; 849 A.P.R. 177; 2008 NBCA 42, consd. [para. 9].

R. v. Acker (K.J.) (2004), 281 N.B.R.(2d) 275; 736 A.P.R. 275; 2004 NBPC 24, consd. [para. 28].

Statutes Noticed:

Constitution Act, 1982, sect. 35(1) [para. 3]; sect. 35(2) [para. 6].

Counsel:

Avocats:

Georges Chiasson, Q.C., for the Crown;

Terrence P. Lenihan, for the accused.

This matter was heard by LeBlanc, P.C.J., of the New Brunswick Provincial Court, who delivered the following decision on September 6, 2012.