R. v. Hirsekorn (G.),

• Judge: Macleod,McDonald,Paperny
• Neutral Citation: 2013 ABCA 242
• Citation: 2013 ABCA 242,(2013), 556 A.R. 53,556 AR 53,(2013), 556 AR 53,556 A.R. 53
• Date: 07 February 2013
• Court: Court of Appeal (Alberta)

R. v. Hirsekorn (G.) (2013), 556 A.R. 53; 584 W.A.C. 53 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. JL.013

Her Majesty the Queen (respondent) v. Garry Ivan Hirsekorn (appellant) and Blood Tribe, Siksika Nation, Métis National Council (intervenors)

(1101-0297-A; 2013 ABCA 242)

Indexed As: R. v. Hirsekorn (G.)

Alberta Court of Appeal

Paperny and McDonald, JJ.A., and Macleod, J.(ad hoc)

July 4, 2013.

Summary:

Hirsekorn shot a mule deer near Elkwater, on the western edge of the Cypress Hills in southeastern Alberta. He was charged with hunting wildlife outside an open season and being in possession of wildlife without a valid wildlife permit, contrary to ss. 25(1) and 55(1) of the Wildlife Act. Hirsekorn contended that, as a Métis person within the meaning of s. 35(2) of the Constitution Act, he had an aboriginal right to hunt for food and the Wildlife Act unjustifiably infringed that right.

The Alberta Provincial Court, in a decision reported at [2010] A.R. Uned. 880, did not accept Hirsekorn's constitutional argument and found him guilty as charged. Hirsekorn appealed.

The Alberta Court of Queen's Bench, in a decision reported at (2011), 520 A.R. 60, dismissed the appeal. Applying the test in R. v. Powley (SCC), the court concluded that the trial judge's findings did not support the existence of a Métis group for whom hunting for food in the area of the Cypress Hills was integral to their culture before the assertion of effective European control. Hirsekorn appealed.

The Alberta Court of Appeal dismissed the appeal. The right asserted was properly characterized as being the right to hunt for food in the Cypress Hills and environs. The evidence supported the conclusion that no Métis community, however defined, had sufficient presence in that area leading up to the time of effective control. The evidence also supported the conclusion that effective control for the purpose of the Powley test occurred in 1874. A purposive approach to deciding whether a practice was integral to a distinctive culture posed the question: did the historic Métis community include the particular area within its ancestral lands or traditional hunting territory? In this case, the answer was no.

Fish and Game - Topic 809

Indian, Inuit and Métis rights - General principles - Aboriginal or treaty rights - Proof of - [See all Fish and Game - Topic 847 ].

Fish and Game - Topic 847

Indian, Inuit and Métis rights - Right to hunt - Métis - Hirsekorn shot a mule deer near Elkwater, on the western edge of the Cypress Hills in southeastern Alberta - He was charged with hunting wildlife outside an open season and being in possession of wildlife without a valid wildlife permit, contrary to ss. 25(1) and 55(1) of the Wildlife Act - Hirsekorn contended that, as a Métis person within the meaning of s. 35(2) of the Constitution Act, he had an aboriginal right to hunt for food - The trial judge did not accept Hirsekorn's constitutional argument and found him guilty - The trial judge concluded that Hirsekorn failed to prove the existence of a historic rights-bearing Métis community in southern Alberta prior to the time of European control (which he identified as the arrival in southern Alberta of the North West Mounted Police between 1874 and 1878) - Hirsekorn appealed - Applying the test in R. v. Powley (SCC), the summary conviction appeal judge (SCAJ) dismissed the appeal - The SCAJ concluded that the trial judge's findings did not support the existence of a Métis group for whom hunting for food in the area of the Cypress Hills was integral to their culture before the assertion of effective European control - The Alberta Court of Appeal dismissed Hirsekorn's appeal - The right asserted was properly characterized as being the right to hunt for food in the Cypress Hills and environs - The evidence supported the conclusion that no Métis community, however defined, had sufficient presence in that area leading up to the time of effective control - The evidence also supported the conclusion that effective control for the purpose of the Powley test occurred in 1874 - A purposive approach to deciding whether a practice was integral to a distinctive culture posed the question: did the historic Métis community include the particular area within its ancestral lands or traditional hunting territory? - In this case, the answer was no.

Fish and Game - Topic 847

Indian, Inuit and Métis rights - Right to hunt - Métis - Hirsekorn shot a mule deer near Elkwater, on the western edge of the Cypress Hills in southeastern Alberta - He was charged with offences under the Wildlife Act - Hirsekorn contended that as a Métis person he had an aboriginal right to hunt for food - The trial judge rejected Hirsekorn's constitutional argument and found him guilty - Applying the test in R. v. Powley (SCC), the summary conviction appeal judge (SCAJ) dismissed the appeal - Hirsekorn appealed - The SCAJ had concluded that the trial judge applied the wrong test in relation to the historic rights-bearing community branch of the Powley test, in that the trial judge was looking for evidence of Métis settlements in southern Alberta, or evidence that Métis community members lived in southern Alberta - Hirsekorn said that, having identified that error, the SCAJ should have gone back to the trial judge's summary of the expert evidence and separated out the true findings of fact from the trial judge's conclusions in order to avoid tainting his own conclusions with the trial judge's application of the wrong legal test - The Alberta Court of Appeal stated that "the role of an appellate court in cases of this nature is to 'rely on the findings of fact made by the trial judge and to assess whether those findings of fact were both reasonable and support the claim that an activity is an aspect of a practice, custom or tradition integral to the distinctive culture of the aboriginal community or group in question'. To the extent that the trial judge applied the correct test to findings of fact supported by the evidence, there is no ground upon which this court can properly interfere with his conclusions: ... If the trial judge, or the appeal judge, applied an incorrect test in assessing his findings of fact, then his conclusions must be reviewed with that in mind. Our task is to apply the correct test to the facts as found by the trial judge, and to review those findings through the lens of the appropriate test" - See paragraphs 44 to 46.

Fish and Game - Topic 847

Indian, Inuit and Métis rights - Right to hunt - Métis - Hirsekorn shot a mule deer near Elkwater, on the western edge of the Cypress Hills in southeastern Alberta - He was charged with offences under the Wildlife Act - Hirsekorn contended that as a Métis person he had an aboriginal right to hunt for food - The trial judge rejected Hirsekorn's constitutional argument and found him guilty - Hirsekorn appealed - Applying the test in R. v. Powley (SCC) the summary conviction appeal judge (SCAJ) dismissed the appeal - Hirsekorn appealed - The SCAJ had characterized the right being claimed by Hirsekorn as the right "to hunt for food in the environs of the Cypress Hills" - Hirsekorn argued that this characterization did not take proper account of the Métis perspective, and focussed too heavily on the specific site where the alleged offence took place - He said that the right ought to have been characterized as a right to hunt for food in central and southern Alberta, or more broadly, on the plains, because this would better reflect the mobile lifestyle of his ancestors - The Alberta Court of Appeal stated that "it was not an error to characterize the right claimed by the appellant as 'the right to hunt for food in the environs of the Cypress Hills'. This was the area where the appellant actually hunted and the evidence led at trial focused on the history of the Métis in this area. Characterizing the right as the right to hunt in central and southern Alberta or, even more broadly, as the right to hunt on 'the plains', would present practical problems. What would be the geographical limits of such a right? It would, as the Supreme Court has noted, be inappropriate to grant a constitutional right to hunt that is abstract and exercisable anywhere. ... the nature of the culture of the plains Métis and the nature of the Métis practice underlying the claimed right, that is hunting by following a migratory herd - is better taken into account in assessing whether the practice underlying the claimed right was integral to Métis culture" - See paragraphs 52 to 58.

Fish and Game - Topic 847

Indian, Inuit and Métis rights - Right to hunt - Métis - Hirsekorn shot a mule deer near Elkwater, on the western edge of the Cypress Hills in southeastern Alberta - He was charged with offences under the Wildlife Act - Hirsekorn contended that as a Métis person he had an aboriginal right to hunt for food - The trial judge rejected Hirsekorn's constitutional argument and found him guilty - Hirsekorn appealed - Applying the test in R. v. Powley (SCC), the summary conviction appeal judge (SCAJ) dismissed the appeal - Hirsekorn appealed - Hirsekorn agreed with the SCAJ's conclusion that there was no requirement to prove a Métis settlement in southern Alberta to ground a right to hunt in the area - However, he said that the SCAJ erred by failing to identify which historic Métis group was capable of holding that right - He urged the court to find that a regionally defined community, described as the Métis Nation or the Métis of the Northwest, was the historic rights-bearing community for the purposes of the Powley test - The Alberta Court of Appeal stated that "I conclude that the historical rights bearing communities of the plains Métis are best considered as regional in nature, as opposed to settlement-based. As the appellant notes, neither the trial judge nor the appeal judge made findings as to which Métis made up the historical rights-bearing community relevant to this case, because both concluded that no Métis community had a sufficient presence in the Cypress Hills area to ground the asserted right to hunt there. I have reached effectively the same conclusion ... In the absence of clear findings regarding the nature of the historical Métis community in the time leading up to control, and in light of my conclusion on the next branches of the Powley test, I decline to make a determination with respect to whether there was only one, prairie-wide Métis community during the relevant time period"- See paragraphs 59 to 64.

Fish and Game - Topic 847

Indian, Inuit and Métis rights - Right to hunt - Métis - Hirsekorn shot a mule deer near Elkwater, on the western edge of the Cypress Hills in southeastern Alberta - He was charged with offences under the Wildlife Act - Hirsekorn contended that as a Métis person he had an aboriginal right to hunt for food - The trial judge rejected Hirsekorn's constitutional argument and found him guilty - The trial judge concluded that Hirsekorn failed to prove the existence of a historic rights-bearing Métis community in southern Alberta prior to the time of European control (which he identified as the arrival in southern Alberta of the North West Mounted Police between 1874 and 1878) - Hirsekorn appealed - Applying the test in R. v. Powley (SCC), the summary conviction appeal judge (SCAJ) dismissed the appeal - Hirsekorn appealed - Hirsekorn argued that the arrival of the North West Mounted Police in southern Alberta did not amount to effective control because it did not change the Métis lifestyle and economy forever - He said that effective control did not take place until the period between 1879 and the early 1880s, when a convergence of events occurred: the collapse of the buffalo, the surveying of lands in the region and the arrival of the Canadian Pacific Railway in Alberta - The Alberta Court of Appeal found no error in the trial judge's choice of relevant time frame - There was ample evidence on which he could conclude that "effective control of European laws and customs" occurred upon, or shortly after, the arrival of the North West Mounted Police in late 1874 - See paragraphs 65 to 69.

Fish and Game - Topic 847

Indian, Inuit and Métis rights - Right to hunt - Métis - Hirsekorn shot a mule deer near Elkwater, on the western edge of the Cypress Hills in southeastern Alberta - He was charged with offences under the Wildlife Act - Hirsekorn contended that as a Métis person he had an aboriginal right to hunt for food - The trial judge rejected Hirsekorn's constitutional argument and found him guilty - Applying the test in R. v. Powley (SCC), the summary conviction appeal judge (SCAJ) dismissed Hirsekorn's appeal - Hirsekorn appealed - The Alberta Court of Appeal stated that the core question was whether the asserted right, characterized as hunting for food in the environs of the Cypress Hills, was integral to the distinctive culture of the plains Métis - The SCAJ had approached that question by focusing on the site where the practice was carried out - The court stated that "Defining the question as whether hunting in a particular place was integral to the culture of the aboriginal group runs the risk of shifting the emphasis from the practice, where it belongs, to the place or location of the practice. In the context of a nomadic people whose culture entailed following a migratory herd (and whose history indicates a need to move the location of their practice from place to place in response to the movement of the herd), over-emphasizing the importance of 'place', in the form of a specific tract of land, risks rendering illusory the rights guaranteed to the nomadic peoples by s 35(1). ... There is a danger of creating an artificial barrier to the recognition of the rights of nomadic people whose ancestral lands are vast if they always have to prove that hunting on a particular tract of land was of central significance to their culture. I prefer a modified approach that takes into account the aboriginal perspective and the distinctive way of life of the plains Métis" - The threshold question was "did the historic Métis community include the disputed area within its ancestral lands or traditional hunting territory? In other words, did they frequent the area for the purpose of carrying out a practice that was integral to their traditional way of life?" - See paragraphs 70 to 95.

Indians, Inuit and Métis - Topic 6012

Aboriginal rights - Evidence and proof - [See all Fish and Game - Topic 847 ].

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, appld. [para. 3].

R. v. Adams (J.R.), [1996] 3 S.C.R. 101; 202 N.R. 89, refd to. [para. 17].

R. v. Côté (F.) et al., [1996] 3 S.C.R. 139; 202 N.R. 161, refd to. [para. 17].

R. v. Goodon (W.N.) (2009), 234 Man.R.(2d) 278; 2008 MBPC 59, refd to. [para. 26].

R. v. Marshall (S.F.) et al.; R. v. Bernard (J.), [2005] 2 S.C.R. 220; 336 N.R. 22; 287 N.B.R.(2d) 206; 750 A.P.R. 206; 2005 SCC 43, refd to. [para. 46].

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. 47].

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. 56].

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207; 2001 SCC 33, refd to. [para. 56].

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. 74].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 78].

William v. British Columbia et al. (2012), 324 B.C.A.C. 214; 551 W.A.C. 214; 2012 BCCA 285, leave to appeal granted (2013), 446 N.R.  399 (S.C.C.), refd to. [para. 82].

Statutes Noticed:

Constitution Act, 1982, sect. 35 [para. 22].

Authors and Works Noticed:

Canada, Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples: Perspectives and Realities (1996), vol. 4, pp. 199, 200 [para. 23].

Counsel:

T.G. Rothwell and A.L. Edgington, for the respondent;

J. Teillet and J.T. Madden, for the appellant;

G.A. Befus and B.J. Kormos, for the Blood Tribe;

D.M. LaFond and C.D. Leonard, for the Siksika Nation;

K.L. Hodgson-Smith, for the Métis National Council.

This appeal was heard on February 7, 2013, before Paperny and McDonald, JJ.A., and Macleod, J.(ad hoc), of the Alberta Court of Appeal. The following reasons for judgment reserved of the Court of Appeal were delivered by Paperny, J.A, and were filed on July 4, 2013.