R. v. Legrande (R.H.) et al., (2011) 527 A.R. 260 (QB)

• Judge: Tjosvold, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: October 07, 2011
• Citations: (2011), 527 A.R. 260 (QB);2011 ABPC 379

R. v. Legrande (R.H.) (2011), 527 A.R. 260 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. MR.064

Her Majesty the Queen v. Randy Harold Legrande

Her Majesty the Queen v. Melvin Lorman Gauchier (091444885P1; 091444935P1; 2011 ABPC 379)

Indexed As: R. v. Legrande (R.H.) et al.

Alberta Provincial Court

Tjosvold, P.C.J.

December 16, 2011.

Summary:

Legrande, a member of the Whitefish Lake First nation, and Gauchier, a member of the Peavine Métis Settlement, were charged with hunting in a wildlife sanctuary contrary to s. 39 of the Wildlife Act. The parties agreed that the defence of mistake of fact should be dealt with first.

The Alberta Provincial Court, in a decision reported at 527 A.R. 253 held that the defence was not supported by the evidence. The accused asserted that their right to hunt for food had been infringed and sought declaratory relief and a stay of proceedings.

The Alberta Provincial Court held that the hunting occurred on occupied Crown land to which there was no right of access for the purpose of hunting. The accused had not established an infringement of their right to hunt.

Fish and Game - Topic 805

Indian, Inuit and Métis rights - General principles - Scope of rights - Limitations - Conservation - Legrande, a member of the Whitefish Lake First Nation, and Gauchier, a member of the Peavine Métis Settlement, while on the DMI Road, both shot at a surrogate moose that had been setup by Fish and Wildlife Officers - They were charged with hunting in a wildlife sanctuary contrary to s. 39 of the Wildlife Act - The accused asserted that the sanctuary was unoccupied Crown land and that they had a right of access to hunt - The Alberta Provincial Court held that the sanctuary's creation was a bona fide conservation measure and the land was occupied for that purpose - If the "visible incompatible use" test applied to Crown land, the court would find that the sanctuary was put to a use that was visibly incompatible with hunting - There was a large sign at the sanctuary's only entrance which clearly indicated a sanctuary where hunting was prohibited - The incompatible use could be viewed from a hunter's vantage point if he was exercising due diligence - Section 99(2) of the Wildlife Regulations appeared to make allowance for hunting within a sanctuary when authorized by a licence - The type of licence contemplated by s. 99(2) had never been issued and there was neither a policy nor an intention to allow such a licence - The only exception would be for problem wildlife and commercial trapping - The existence of such legislation did not create a right of access for hunting so long as the licensing did not occur - Further, a right of access would not result from the limited hunting of problem animals under licence - There was no right of access to the sanctuary for the purpose of hunting - See paragraphs 61 to 79.

Fish and Game - Topic 805

Indian, Inuit and Métis rights - General principles - Scope of rights - Limitations - Conservation - Legrande, a member of the Whitefish Lake First Nation, and Gauchier, a member of the Peavine Métis Settlement, while on the DMI Road, both shot at a surrogate moose that had been setup by Fish and Wildlife Officers - The DMI Road was designated as a road corridor sanctuary - They were charged with hunting in a wildlife sanctuary contrary to s. 39 of the Wildlife Act - They asserted that there was a prima facie infringement of their right to hunt for food and that Alberta had not established a valid justification for that infringement - The Alberta Provincial Court held that the accused had not established a prima facie infringement - The regulation that created the sanctuary was not unreasonable - The regulation was a conservation measure which interfered only minimally with aboriginal hunting - The evidence did not support a finding of any undue hardship to any aboriginal community - Neither of the accused had previously hunted in the sanctuary and they did not testify that road hunting was their preferred means of exercising their right to hunt - Nor did the evidence support a finding of interference with the preferred means of hunting for any aboriginal community - The only concern expressed was with inability to take full advantage of the new hunting opportunities created by the DMI Road - The DMI Road, even with the road corridor sanctuary, provided greater access for hunting - See paragraphs 80 to 100.

Fish and Game - Topic 843

Indian, Inuit and Métis rights - General principles - Right to hunt - Extent of right - [See both Fish and Game - Topic 805 ].

Fish and Game - Topic 849

Indian, Inuit and Métis rights - Right to hunt - Crown lands - Occupied - [See first Fish and Game - Topic 805 ].

Cases Noticed:

R. v. Smith, [1935] 2 W.W.R. 433 (Sask. C.A.), refd to. [para. 62].

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, refd to. [para. 63].

R. v. Catarat (H.) and Sylvestre (J.A.) (2001), 207 Sask.R. 57; 247 W.A.C. 57; 2001 SKCA 50, refd to. [para. 64].

R. v. Michel and Johnson (1983), 10 C.C.C.(3d) 314 (Yuk. Terr. C.A.), refd to. [para. 65].

R. v. Smith, [1970] 3 C.C.C.(2d) 83 (Yuk. Terr. T.C.), refd to. [para. 65].

R. v. Wolverine and Bernard, [1989] 4 W.W.R. 467; 74 Sask.R. 224 (C.A.), refd to. [para. 65].

R. v. Cardinal, [2003] A.J. No. 908 (Prov. Ct.), refd to. [para. 66].

R. v. Brertton (D.) et al. (1999), 244 A.R. 355; 209 W.A.C. 355 (C.A.), leave to appeal refused (2000), 254 N.R. 343; 261 A.R. 398; 225 W.A.C. 398 (S.C.C.), refd to. [para. 68].

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) et al., [2005] 3 S.C.R. 388; 342 N.R. 82; 2005 SCC 69, refd to. [para. 69].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 70].

R. v. Lefthand (2007), 77 Alta. L.R.(4th) 203; 2007 ABCA 206, leave to appeal denied (2008), 385 N.R. 392; 385 N.R. 393 (S.C.C.), consd. [para. 70].

R. v. Hamelin (S.B.) (2010), 496 A.R. 1 (Q.B.), refd to. [para. 70].

R. v. Sutherland, [1980] 2 S.C.R. 451; 35 N.R. 361; 7 Man.R.(2d) 359, refd to. [para. 73].

R. v. Moosehunter, [1981] 1 S.C.R. 282; 36 N.R. 437; 9 Sask.R. 149, refd to. [para. 73].

R. v. McIntyre, [1992] 4 W.W.R. 765; 100 Sask.R. 255; 18 W.A.C. 255 (C.A.), leave to appeal denied (1985), 58 N.R. 309 (S.C.C.), refd to. [para. 82].

R. v. Ross (1985), 47 Sask.R. 317 (C.A.), refd to. [para. 82].

R. v. Crowe (B.) and Ironchild (M.), [1998] 7 W.W.R. 203; 164 Sask.R. 241 (Q.B.), affd. [1999] 7 W.W.R. 310; 172 Sask.R. 155; 185 W.A.C. 155 (C.A.), refd to. [para. 82].

R. v. Breaker (S.K.) (2000), 280 A.R. 201 (Prov. Ct.), refd to. [para. 89].

Counsel:

Mark Mastel (Provincial) and Tom Rothwell (Aboriginal Law), for the Crown;

Shawn Beaver, for both accused.

This matter was heard at Stony Plain, Alberta, on October 7, 2011, by Tjosvold, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on December 16, 2011.