R. v. Paul (A.) et al., (2016) 372 N.S.R.(2d) 227 (SC)

• Judge: Duncan, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: September 18, 2014
• Jurisdiction: Nova Scotia
• Citations: (2016), 372 N.S.R.(2d) 227 (SC);2016 NSSC 99

R. v. Paul (A.) (2016), 372 N.S.R.(2d) 227 (SC);

    1172 A.P.R. 227

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. AP.024

Aaron Paul and Charles Francis (appellants) v. Her Majesty the Queen (respondent)

(Syd. No. 421120; 2016 NSSC 99)

Indexed As: R. v. Paul (A.) et al.

Nova Scotia Supreme Court

Duncan, J.

April 13, 2016.

Summary:

The accused, registered status Mi'kmaqs, were charged under s. 68 of the Wildlife Act with hunting with a light. They argued that they were exempt from s. 68 because "they were acting in accordance with their Aboriginal right to hunt for food and ceremonial purposes protected under s. 35(1) of the Constitution Act" (i.e., that hunting at night with a light was an historically preferred means of hunting by the Mi'kmaqs in the area). The Crown conceded an aboriginal right to hunt for food and ceremonial purposes, but argued that there was no historical basis for finding that hunting at night with a light was a preferred means of hunting. Further, if s. 68 interfered with the aboriginal right to hunt, it was a reasonable limitation upon the modern exercise of the right to hunt for food and did not impose an undue hardship on aboriginal hunters.

The Nova Scotia Provincial Court, in a judgment reported (2013), 335 N.S.R.(2d) 216; 1060 A.P.R. 216, found the accused guilty. The aboriginal right to hunt for food or ceremonial purposes was not infringed by the s. 68 prohibition of hunting with a light. There was no prima facie infringement of the aboriginal right to hunt. Accordingly, it was unnecessary to apply the Sparrow/Badger justification test. If the right to hunt had been prima facie infringed, the court opined, based on public safety concerns, that the Sparrow/Badger justification test would have been satisfied. The accused appealed, arguing that the trial judge: (1) misapprehended the evidentiary burden necessary to establish a prima facie infringement of an existing aboriginal right; (2) erred in finding that the Supreme Court of Canada decision in R. v. Morris (2006) was binding and determinative of the issues in the present case; (3) erred in failing to find a prima facie infringement of an aboriginal right; and (4) erred in finding that, assuming that a prima facie infringement existed, the infringement was nevertheless justified.

The Nova Scotia Supreme Court dismissed the appeal.

Fish and Game - Topic 804

Indian, Inuit and Metis rights - General principles - Scope of rights - General - The Nova Scotia Supreme Court referred to factors to be considered in determining the scope of aboriginal rights: "1. Courts must take into account the perspective of aboriginal peoples themselves; 2. Courts must identify precisely the nature of the claim being made in determining whether an aboriginal claimant has demonstrated the existence of an aboriginal right; 3. In order to be integral a practice, custom or tradition must be of central significance to the aboriginal society in question; 4. The practices, customs and traditions which constitute aboriginal rights are those which have continuity with the practices, customs and traditions that existed prior to contact; 5. Courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating aboriginal claims; 6. Claims to aboriginal rights must be adjudicated on a specific rather than general basis; 7. For a practice, custom or tradition to constitute an aboriginal right it must be of independent significance to the aboriginal culture in which it exists; 8. The integral to a distinctive culture test requires that a practice, custom or tradition be distinctive; it does not require that that practice, custom or tradition be distinct; 9. The influence of European culture will only be relevant to the inquiry if it is demonstrated that the practice, custom or tradition is only integral because of that influence; and 10. Courts must take into account both the relationship of aboriginal peoples to the land and the distinctive societies and cultures of aboriginal peoples". - See paragraph 96.

Fish and Game - Topic 805.1

Indian, Inuit and Metis rights - General principles - Scope of rights - Limitations - Safety - [See Fish and Game - Topic 843 ].

Fish and Game - Topic 843

Indian, Inuit and Metis rights - Right to hunt for food - Extent of right - The accused, registered status Mi'kmaqs, were charged under s. 68 of the Wildlife Act with hunting with a light - They argued that they were exempt from s. 68 because "they were acting in accordance with their Aboriginal right to hunt for food and ceremonial purposes protected under s. 35(1) of the Constitution Act" (i.e., that hunting at night with a light was an historically preferred means of hunting by the Mi'kmaqs in the area) - The Crown conceded an aboriginal right to hunt for food and ceremonial purposes, but argued that there was no historical basis for finding that hunting at night with a light was a crucial element of the distinctive culture of the Mi'kmaq community - Further, if s. 68 interfered with the aboriginal right to hunt, it was a reasonable limitation upon the modern exercise of the right to hunt for food and did not impose an undue hardship on aboriginal hunters - The trial judge held that the aboriginal right to hunt for food or ceremonial purposes was not infringed by s. 68 - The court stated that "as measured against the standard of public safety, s. 68 of the Wildlife Act, which prohibits hunting with a light is not in my opinion an unreasonable limit on the Mi'kmaq right to hunt for food or ceremonial purposes" - There was no evidence that prohibiting hunting with a light caused undue hardship to the Mi'kmaq community - The evidence did not establish that hunting at night with a flambeau or torch was a preferred method of hunting nor integral to the distinctive Mi'kmaq culture - The court opined that if s. 68 had prima facie infringed the aboriginal right to hunt, then the restriction on that hunting right would have passed the Sparrow/Badger justification test - The Nova Scotia Supreme Court agreed - The trial judge was correct to reject the argument that the Supreme Court of Canada decision in Morris automatically led to a prima facie infringement of the right to hunt when the legislative prohibition was broad - The trial judge's fact findings were reasonable and supported by the evidence and he did not err in his conclusions on public safety, preferred methods of hunting, undue hardship or the Sparrow/Badger justification test - See paragraphs 68 to 157.

Fish and Game - Topic 2401

Hunting offences - With a light - General - [See Fish and Game - Topic 843 ].

Indians, Inuit and Métis - Topic 6017

Aboriginal rights - Infringement - [See Fish and Game - Topic 843 ].

Indians, Inuit and Métis - Topic 6018.1

Aboriginal rights - Limitations on - [See Fish and Game - Topic 843 ].

Cases Noticed:

R. v. Nickerson (W.S.) (1999), 178 N.S.R.(2d) 189; 549 A.P.R. 189; 1999 NSCA 168, refd to. [para. 13].

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. 14].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 15].

R. v. Bernard (A.) (2002), 200 N.S.R.(2d) 352; 627 A.P.R. 352; 2002 NSCA 5, refd to. [para. 19].

R. v. Morris (I.) et al. (2006), 355 N.R. 86; 234 B.C.A.C. 1; 387 W.A.C. 1; 2006 SCC 59, refd to. [para. 21].

William v. British Columbia et al. (2014), 459 N.R. 287; 356 B.C.A.C. 1; 610 W.A.C. 1; 2014 SCC 44, refd to. [para. 22].

Tsilhqot'in Nation v. British Columbia - see William v. British Columbia et al.

R. v. Gladstone (W.) et al., [1996] 2 S.C.R. 723; 200 N.R. 189; 79 B.C.A.C. 161; 129 W.A.C. 161, refd to. [para. 39].

R. v. Simon, [1985] 2 S.C.R. 387; 62 N.R. 366; 71 N.S.R.(2d) 15; 171 A.P.R. 15, refd to. [para. 41].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201, refd to. [para. 41].

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, refd to. [para. 47].

Bedford et al. v. Canada (Attorney General) (2013), 452 N.R. 1; 312 O.A.C. 53; 2013 SCC 72, refd to. [para. 70].

R. v. Seward (J.L.) et al. (1999), 119 B.C.A.C. 306; 194 W.A.C. 306; 1999 BCCA 163, refd to. [para. 98].

Lax Kw'alaams Indian Band et al. v. Canada (Attorney General) et al. (2011), 423 N.R. 3; 313 B.C.A.C. 3; 533 W.A.C. 3; 2011 SCC 56, refd to. [para. 100].

Statutes Noticed:

Constitution Act, 1982, sect. 35(1) [para. 15].

Counsel:

Douglas E. Brown, for the appellants;

James E. Clarke and D'arcy MacPherson, for the respondent.

This appeal was heard between September 18, 2014, and July 28, 2015, at both Halifax and Sydney, N.S., before Duncan, J., of the Nova Scotia Supreme Court, who delivered the following judgment on April 13, 2016.