R. v. Hatfield (J.L.), 2015 NSSC 77

Judge:Murphy, J.
Court:Supreme Court of Nova Scotia
Case Date:February 02, 2015
Jurisdiction:Nova Scotia
Citations:2015 NSSC 77;(2015), 357 N.S.R.(2d) 146 (SC)
 
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R. v. Hatfield (J.L.) (2015), 357 N.S.R.(2d) 146 (SC);

    1127 A.P.R. 146

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Temp. Cite: [2015] N.S.R.(2d) TBEd. MR.030

Jack Leonard Hatfield (appellant) v. Her Majesty the Queen (respondent)

(Yar. No. 428004; 2015 NSSC 77)

Indexed As: R. v. Hatfield (J.L.)

Nova Scotia Supreme Court

Murphy, J.

March 9, 2015.

Summary:

The accused was charged with two offences under the Wildlife Act: (1) hunting or fishing without a valid license or permit, contrary to s. 26; and (2) possessing a deer carcass, contrary to s. 40(3). He defended the charges on the basis that he was exercising his aboriginal hunting rights as a Métis person. The Provincial Court judge convicted the accused. He appealed his conviction.

The Nova Scotia Supreme Court dismissed the appeal.

Fish and Game - Topic 809

Indian, Inuit and Métis rights - General principles - Aboriginal or treaty rights - Proof of - The accused was charged with two offences under the Wildlife Act: (1) hunting or fishing without a valid license or permit, contrary to s. 26; and (2) possessing a deer carcass, contrary to s. 40(3) - He defended the charges on the basis that he was exercising his aboriginal hunting rights as a Métis person - The Provincial Court judge convicted the accused - He appealed his conviction - The Nova Scotia Supreme Court dismissed the appeal - The Provincial Court judge's findings were reasonable and supported by the evidence - The expert evidence of Dr. Von Gernet and Dr. Patterson supported the conclusions that "effective European control was exercised in 1640 in Massachusetts and 1670 in Nova Scotia, and that the accused did not meet his burden to establish on the balance of probabilities on the whole of the evidence that there was a culturally distinctive geographically-identifiable community of mixed ancestry on Cape Sable Island before effective European control was exercised in that area" - The trial judge correctly interpreted and properly applied the direction given by the Supreme Court of Canada in R. v. Powley (S.) et al. (2003).

Fish and Game - Topic 847

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

Indians, Inuit and Metis - Topic 6012

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

Cases Noticed:

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. 4].

Housen v. Nikolaisen et al. (2002), 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 6].

Taylor v. Ankenman and Jaegli Enterprises Ltd., [1981] 2 S.C.R. 2; 40 N.R. 4, refd to. [para. 7].

R. v. Nickerson (W.S.) (1999), 178 N.S.R.(2d) 189; 549 A.P.R. 189 (C.A.), refd to. [para. 8].

R. v. R.H.L. (2008), 270 N.S.R.(2d) 123; 865 A.P.R. 123; 2008 NSCA 100, refd to. [para. 8].

R. v. Francis (T.) (2011), 311 N.S.R.(2d) 88; 985 A.P.R. 88; 2011 NSCA 113, refd to. [para. 8].

R. v. MacGregor (R.O.) (2012), 313 N.S.R.(2d) 281; 990 A.P.R. 281; 2012 NSCA 18, refd to. [para. 8].

R. v. Prest (T.E.) (2012), 315 N.S.R.(2d) 382; 998 A.P.R. 382; 2012 NSCA 45, refd to. [para. 8].

R. v. Babin (J.P.) (2013), 339 N.S.R.(2d) 107; 1073 A.P.R. 107; 2013 NSSC 434, refd to. [para. 8].

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207; 2001 SCC 33, refd to. [para. 40].

Counsel:

Kenneth I. Swimm, Agent for the appellant;

James Clarke, for the respondent.

This appeal was heard at Yarmouth, N.S., on February 2, 2015, by Murphy, J., of the Nova Scotia Supreme Court, who delivered his decision orally on March 9, 2015, and filed the following written decision on March 11, 2015.

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