R. v. McCoy, (1993) 141 N.B.R.(2d) 185 (CA)

• Court: Court of Appeal (New Brunswick)
• Case Date: November 25, 1993
• Jurisdiction: New Brunswick
• Citations: (1993), 141 N.B.R.(2d) 185 (CA)

R. v. McCoy (1993), 141 N.B.R.(2d) 185 (CA);

    141 R.N.-B.(2e) 185; 361 A.P.R. 185

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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Her Majesty The Queen (applicant/appellant) v. Leslie McCoy (respondent/respondent)

(141/92/CA)

Indexed As: R. v. McCoy

New Brunswick Court of Appeal

Hoyt, C.J.N.B., Ryan, J.A. and Dickson, J.(ad hoc)

November 25, 1993.

Summary:

The accused Maliseet was charged with hunting at night with a light contrary to s. 33(1)(b) of the Fish and Wildlife Act, S.N.B. 1980, c. F-14.1. The alleged offence oc­curred on non-reserve rural land.

The New Brunswick Provincial Court, in a decision reported at 113 N.B.R.(2d) 36; 285 A.P.R. 36, acquitted the accused and held that in New Brunswick Maliseets were entitled to hunt without a licence re­quire­ment or restriction on season or hour of the day anywhere that it would be lawful for any non-treaty licensed hunter to hunt. The Crown appealed.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 127 N.B.R.(2d) 328; 319 A.P.R. 328, dismissed the appeal. The Crown appealed.

The New Brunswick Court of Appeal, Ryan, J.A., dissenting, allowed the appeal and convicted the accused. The matter was remitted for sentencing in the Provincial Court.

Fish and Game - Topic 801

Indian, Inuit and Métis rights - General prin­ciples - Right to hunt off reserves - A treaty Indian was charged under s. 33(1)(b) of the Fish and Wildlife Act with hunting with a light at night - Hunting on non-reserve rural land but near dwelling and a roadway - The accused submitted that the Treaty of Boston in 1725 exempted him from the statutory provisions - The Crown submitted that the Treaty was only a de­fence when the hunting was performed "in a safe manner" (per the Supreme Court of Canada in R. v. Simon) - The Crown also submitted that hunting at night near dwell­ings and a roadway contravened the Treaty's "non-molestation" clause - The New Brunswick Court of Appeal, Ryan, J.A., dissenting, allowed an appeal and convicted the accused - See paragraphs 15, 16 and 34.

Fish and Game - Topic 801

Indian, Inuit and Métis rights - General prin­ciples - Right to hunt off reserves - A treaty Indian was charged under s. 33(1)(b) of the Fish and Wildlife Act with hunting with a light at night on non-reserve rural land - The accused submitted that the Treaty of Boston in 1725 exempted him from the statutory provisions - The Crown submitted that, inter alia, the Treaty ex­emption did not apply to privately owned lands that had been granted by the Crown - The New Brunswick Court of Appeal, per Hoyt, C.J.N.B., observed "that the proposition that the Treaty does not permit native hunting on any privately owned lands may be too broadly stated. Each case must be examined individually to deter­mine whether a treaty right exists" - See paragraphs 11 and 30.

Fish and Game - Topic 806

Indian, Inuit and Métis rights - General prin­ciples - Scope of rights - Limitations - Hunting or fishing season or times - [See first Fish and Game - Topic 801 ].

Fish and Game - Topic 2401

Hunting offences - With a light - General - [See first Fish and Game - Topic 801 ].

Cases Noticed:

R. v. Simon, [1985] 2 S.C.R. 387; 62 N.R. 366; 71 N.S.R.(2d) 15; 171 A.P.R. 15, appld. [paras. 10, 25].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 10].

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280, refd to. [para. 10].

R. v. Paul and Paul (1987), 80 N.B.R.(2d) 1; 202 A.P.R. 1 (T.D.), consd. [para. 12].

R. v. Myran, [1976] 2 S.C.R. 137; 5 N.R. 551, refd to. [paras. 15, 27].

Prince v. R, [1964] S.C.R. 81, refd to. [para. 27].

Statutes Noticed:

Fish and Wildlife Act, S.N.B. 1980, c. F-14.1, sect. 33(1)(b) [paras. 1, 3]; sect. 46(1) [paras. 12, 35].

Indian Act, R.S.C. 1985, c I-5, sect. 88 [paras. 11, 15, 24].

Lands and Forests Act, R.S.N.S. 1967, c. 163, generally [para. 15].

Wildlife Act, R.S.M. 1970, c. W-140, generally [para. 27].

Counsel:

J.T. Keith McCormick, for the appellant;

Ronald J. Gaffney, for the respondent.

This appeal was heard on October 2, 1992, by Hoyt, C.J.N.B., Ryan, J.A., and Dickson, J.(ad hoc), of the New Brunswick Court of Appeal.

The decision of the court was delivered on November 25, 1993, when the following opinions were delivered:

Hoyt, C.J.N.B. - see paragraphs 1 to 17;

Ryan, J.A. (dissenting) - see paragraphs 18 to 31; and

Dickson, J.(ad hoc) - see paragraphs 32 to 35.