R. v. Lavigne (G.), Jr., (2005) 283 N.B.R.(2d) 298 (PC)

• Judge: Arsenault, P.C.J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: January 28, 2005
• Jurisdiction: New Brunswick
• Citations: (2005), 283 N.B.R.(2d) 298 (PC);2005 NBPC 8

R. v. Lavigne (G.) (2005), 283 N.B.R.(2d) 298 (PC);

    283 R.N.-B.(2e) 298; 740 A.P.R. 298

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: [2005] N.B.R.(2d) TBEd. MR.015

Her Majesty the Queen v. Gerald Lavigne, Jr.

(2005 NBPC 8)

Indexed As: R. v. Lavigne (G.), Jr.

New Brunswick Provincial Court

Arsenault, P.C.J.

January 28, 2005.

Summary:

The accused was charged with: (a) unlaw­fully having in his possession in or upon a resort of wildlife, a firearm during the closed season for hunting, contrary to and in viola­tion of s. 42(1)(a) of the Fish and Wildlife Act (N.B.); and (b) unlawfully hunting moose, deer or bear without being the holder of a valid license, contrary to and in viola­tion of s. 32(1)(b) of the Act. In defence, the accused invoked s. 35(1) of the Constitution Act, 1982, and said that he was an aboriginal and that he had an aboriginal right "to hunt and put food on my table and for my fami­ly". The accused was not registered as an Indian under the Indian Act (Can.) and did not live on a reserve.

The New Brunswick Provincial Court accepted the accused's defence and declared him not guilty.

Fish and Game - Topic 806

Indian, Inuit and Métis rights - General principles - Scope of rights - Limitations - Hunting or fishing seasons or times - The New Brunswick Provincial Court ruled: "To impose closed seasons unequivocally deprives someone, in this case, an aborigi­nal, of his right at all times except during an open season to have in possession a firearm in or upon a resort of wildlife and, as is well known, since there are closed seasons in New Brunswick for a moose hunt the same result would occur, namely an infringement of a recognized aboriginal right over extended periods in any given year" - See paragraphs 87 and 88.

Fish and Game - Topic 809

Indian, Inuit and Métis rights - General principles - Aboriginal or treaty rights - Proof of - [See Fish and Game - Topic 826 and Fish and Game - Topic 849 ].

Fish and Game - Topic 826

Indian, Inuit and Métis rights - Definitions - Aboriginal defined - The accused was charged with provincial hunting offences - In defence, the accused invoked s. 35(1) of the Constitution Act, 1982, said that he was an aboriginal and claimed that he had an aboriginal right to hunt for food which devolved unto him from being a Mi'kmaq - The accused was not registered as an Indian under the Indian Act (Can.) and did not live on a reserve - The New Brunswick Provincial Court accepted the defence and acquitted the accused - The accused was an aboriginal where he established aboriginal ancestry going back to 1803, adherence to an aboriginal lifestyle (hunting, fishing, powwows, spiritual activities, etc.), includ­ing self-identification as an aboriginal, and community acceptance at a local level, particularly from the Pabineau First Nation Band - There was "a sufficient and sub­stantial connection with a tribe" - See paragraphs 10 to 60.

Fish and Game - Topic 849

Indian, Inuit and Métis rights - Right to hunt - Crown lands - Occupied - The accused was charged with provincial hunt­ing offences - The events took place "along the Nepisiguit River" and, if not on the Pabineau First Nation Reserve, then on Crown land traditionally occupied by members of the community living on the Reserve - In defence, the accused invoked s. 35(1) of the Constitution Act, 1982, said that he was an aboriginal and claimed that he had an aboriginal right to hunt for food which devolved unto him from being a Mi'kmaq - The accused was not registered as an Indian under the Indian Act (Can.) and did not live on a reserve - The New Brunswick Provincial Court accepted the defence and acquitted the accused - The aboriginal right claim satisfied the five part test of nature of the right, site specificity, ancestral practice, "integral to distinctive culture" and continuity/evolution - See paragraphs 61 to 85.

Indians, Inuit and Métis - Topic 506

Rights - Constitution Act, 1982, s. 35 - Interpretation - [See Fish and Game - Topic 826 and Fish and Game - Topic 849 ].

Indians, Inuit and Métis - Topic 6012

Aboriginal rights - Evidence and proof - [See Fish and Game - Topic 826 and Fish and Game - Topic 849 ].

Cases Noticed:

R. v. Gray (D.J.) (2004), 273 N.B.R.(2d) 157; 717 A.P.R. 157; 2004 NBCA 57, folld. [para. 9].

R. v. Sappier (D.M.) et al. (2004), 273 N.B.R.(2d) 93; 717 A.P.R. 93; 2004 NBCA 56, folld. [para. 9].

R. v. Fowler (J.) (1993), 134 N.B.R.(2d) 361; 342 A.P.R. 361 (Prov. Ct.), refd to. [para. 60].

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. 60].

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. 63].

R. v. Adams (G.W.), [1996] 3 S.C.R. 101; 202 N.R. 89; [1996] 4 C.N.L.R. 1, refd to. [para. 69].

R. v. Côté (F.) et al., [1996] 3 S.C.R. 139; 202 N.R. 161, refd to. [para. 69].

R. v. Isaac (1975), 13 N.S.R.(2d) 460; 9 A.P.R. 460 (C.A.), refd to. [para. 69].

R. v. Denny et al. (1990), 94 N.S.R.(2d) 253; 247 A.P.R. 253 (C.A.), refd to. [para. 69].

R. v. Toney (B.J.J.) (1993), 127 N.S.R.(2d) 322; 355 A.P.R. 322 (Prov. Ct.), refd to. [para. 69].

R. v. Bernard (J.) (2003), 262 N.B.R.(2d) 1; 688 A.P.R. 1; 2003 NBCA 55, consd. [para. 92].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 533; 247 N.R. 306; 179 N.S.R.(2d) 1; 553 A.P.R. 1; 179 D.L.R.(4th) 193, refd to. [para. 94].

Delgamuukw et al. v. British Columbia et al., [1993] 5 W.W.R. 97; 30 B.C.A.C. 1; 49 W.A.C. 1; 104 D.L.R.(4th) 470 (C.A.), consd. [para. 94].

Statutes Noticed:

Constitution Act, 1982, sect. 35 [para. 7].

Counsel:

Bernard Roux, agent for William Richards, for the Crown;

Melody Nice-Paul, agent for Ann Smith, for the defence.

This matter was heard by Arsenault, P.C.J., of the New Brunswick Provincial Court.

Arsenault, P.C.J., delivered the following decision on January 28, 2005.