R. v. Ironeagle (H.), (1999) 186 Sask.R. 131 (ProvCt)

• Judge: Moxley, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: November 08, 1999
• Jurisdiction: Saskatchewan
• Citations: (1999), 186 Sask.R. 131 (ProvCt)

R. v. Ironeagle (H.) (1999), 186 Sask.R. 131 (ProvCt)

MLB headnote and full text

Temp. Cite: [1999] Sask.R. TBEd. NO.051

Her Majesty the Queen v. Harvey Ironeagle

Her Majesty the Queen v. Henry Cyr

Indexed As: R. v. Ironeagle (H.)

Saskatchewan Provincial Court

Moxley, P.C.J.

November 8, 1999.

Summary:

Ironeagle and Cyr, both aboriginals, went ice fishing on the lake bordering their re­serve. They were approached by an under­cover conservation officer, who offered to purchase a portion of their catch for $10. Once the sale was completed, both accused were charged with various offences under the Fisheries Act and Regulations.

The Saskatchewan Provincial Court acquitted Cyr of all charges. The court acquitted Ironeagle of all but one charge, which was stayed because of a finding of entrapment.

Courts - Topic 2015

Jurisdiction - General principles - Con­trol­ling abuse of its process - [See Fish and Game - Topic 1763 ].

Fish and Game - Topic 967

Indians, Inuit and Métis rights - Right to fish and regulation of Indian fishery - Treaty Indians - Ironeagle and Cyr, both aboriginals, went ice fishing on the lake bordering their reserve - They were approached by an undercover conservation officer, who offered to purchase a portion of their catch for $10 - Once the sale was completed, both accused were charged with various offences under the Fisheries Act and Regulations - The defence argued that both accused had the right, as Treaty Indians, to sell fish - The Saskatchewan Provincial Court rejected the argument - See paragraphs 14 to 19.

Fish and Game - Topic 1763

Offences - General - Defences - Entrap­ment - Ironeagle and Cyr, both aborigi­nals, went ice fishing on the lake bordering their reserve - They were approached by an undercover conservation officer, who offered to purchase a portion of their catch for $10 - Once the sale was completed, both accused were charged with various offences under the Fisheries Act and Regu­lations - The Saskatchewan Provin­cial Court acquitted the accused of all charges except one and stayed the remain­ing charge for abuse of process - The court considered that the officer: (1) had less distasteful ways of investigating the offence, (2) exploited the human charac­ter­istics of compassion, sym­pathy and friend­ship, and (3) persisted when his initial offer to purchase was refused - See para­graphs 20 to 25.

Fish and Game - Topic 2004

Fishing offences - Commercial fishing - Defined - Ironeagle and Cyr, both abori­ginals, went ice fishing on the lake bor­der­ing their reserve - They were approached by an under­cover conservation officer, who offered to purchase a portion of their catch for $10 - Once the sale was completed, both accused were charged, inter alia, with commercial fishing offences - The Saskatchewan Provincial Court ruled that as the men were not fishing for the pur­pose of marketing fish, they were not commercial fishing - See paragraph 7.

Indians, Inuit and Métis - Topic 5502.1

Lands - Reserves - Rivers and lakes - [See Waters - Topic 1805 ].

Indians, Inuit and Métis - Topic 6012

Aboriginal rights - General - Proof of - Ironeagle and Cyr, both aboriginals, went ice fishing on the lake bordering their reserve - They were approached by an undercover conservation officer, who offered to purchase a portion of their catch for $10 - Once the sale was completed, both accused were charged with various offences under the Fisheries Act and Regu­lations - The defence sought to in­troduce oral history evidence that the signer of the band's treaty selected the lake as part of the reserve - The Saskatchewan Provincial Court ruled that "it must be shown that the witnesses giving such testimony are mem­bers of a culture which traditionally kept no written history ... [and] the party put­ting such evidence forward must present evidence of the practices and traditions of the culture in question which raise facts such as the one sought to be proven from simple anec­dote to a basis for a judicial determina­tion." - See paragraphs 10 and 11.

Trials - Topic 265

Prosecution - General - Abuse of process -[See Fish and Game - Topic 1763 ].

Trials - Topic 3094

Offences - Attempts, conspiracies, acces­sories and parties - What constitutes a party - Ironeagle and Cyr, both aborigi­nals, went ice fishing on the lake bordering their reserve - They were approached by an under­cover conservation officer, who offered to purchase a portion of their catch - Once the sale was completed, both accused were charged with various offen­ces under the Fisheries Act and Regu­la­tions - The Saskatchewan Provincial Court dismissed all charges against Cyr, noting that "[h]e participated in none of the con­versation, he had no involvement in Iron­eagle's decision to sell fish, he did not deliver the fish to [the officer], and received none of the $10 price. Equally important, it was no part of their plan, when the decision was made to go fishing, to sell fish. Cyr had no way of separating himself from the sale, and had no control over any of Ironeagle's actions" - See paragraph 6.

Waters - Topic 1805

Natural lakes and ponds - General - Rip­ar­ian rights - Ironeagle and Cyr, both aborig­inals, went ice fishing on the lake border­ing their reserve - They were approached by an under­cover conservation officer, who offered to purchase a portion of their catch for $10 - Once the sale was completed, both accused were charged with various offences under the Fisheries Act and Regu­lations - At issue was whether the reserve owned the lake - The Saskatchewan Prov­incial Court stated that the principle of riparian rights had no application to lakes or navi­gable waters - The court concluded that the lake was not owned by the reserve - See paragraphs 12 to 13.

Cases Noticed:

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; 153 D.L.R.(4th) 193; [1998] 1 C.N.L.R. 14, refd to. [para. 3].

R. v. Marshall (D.J.) (1999), 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201 (S.C.C.), dist. [para. 5].

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. 10].

R. v. Lewis (A.J.) et al., [1996] 1 S.C.R. 921; 196 N.R. 165; 75 B.C.A.C. 1; 123 W.A.C. 1, refd to. [para. 12].

R. v. Nikal (J.B.), [1996] 1 S.C.R. 1013; 196 N.R. 1; 74 B.C.A.C. 161; 121 W.A.C. 161; 133 D.L.R.(4th) 658, refd to. [para. 13].

R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 321; 105 C.C.C.(3d) 289, refd to. [para. 14].

R. v. Horseman, [1990] 1 S.C.R. 901; 108 N.R. 1; 108 A.R. 1, folld. [para. 14].

R. v. Mack, [1988] 2 S.C.R. 903; 90 N.R. 173; [1989] 1 W.W.R. 577; 44 C.C.C.(3d) 513; 67 C.R.(3d) 1, appld. [para. 20].

Authors and Works Noticed:

Concise Oxford Dictionary [para. 12].

Counsel:

None disclosed.

This matter was heard before Moxley, P.C.J., of the Saskatchewan Provincial Court, who delivered the following decision on November 8, 1999.