R. v. Polches (R.) et al., (2008) 325 N.B.R.(2d) 262 (CA)

• Judge: Drapeau, C.J.N.B., Deschênes and Richard, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: September 12, 2007
• Jurisdiction: New Brunswick
• Citations: (2008), 325 N.B.R.(2d) 262 (CA);2008 NBCA 1

R. v. Polches (R.) (2008), 325 N.B.R.(2d) 262 (CA);

    325 R.N.-B.(2e) 262; 836 A.P.R. 262

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2008] N.B.R.(2d) TBEd. JA.024

Renvoi temp.: [2008] N.B.R.(2d) TBEd. JA.024

Her Majesty the Queen (appellant) v. Richard Polches, Jason Brooks and Jeffrey Polches (respondents)

(68/05/CA; 2008 NBCA 1)

Indexed As: R. v. Polches (R.) et al.

Répertorié: R. v. Polches (R.) et al.

New Brunswick Court of Appeal

Drapeau, C.J.N.B., Deschênes and Richard, JJ.A.

January 8, 2008.

Summary:

Résumé:

The accused were acquitted of unlawfully hunting wildlife at night with a light contrary to s. 33(1)(b) of the Fish and Wildlife Act. The Crown appealed.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 289 N.B.R.(2d) 72; 753 A.P.R. 72, dismissed the appeal. The Crown sought leave to appeal.

The New Brunswick Court of Appeal, in a decision reported at 298 N.B.R.(2d) 166; 775 A.P.R. 166, granted leave to appeal, allowed the appeal, entered a conviction and referred the matter back to the Provincial Court for the imposition of sentence. The accused sought leave to appeal to the Supreme Court of Canada. The Supreme Court of Canada rendered a decision in R. v. Morris (2006 SCC 59) from British Columbia which also concerned the offence of hunting wildlife with a light.

The Supreme Court of Canada, in a decision reported at 364 N.R. 392, remanded the case to the New Brunswick Court of Appeal pursuant to s. 43(1.1) of the Supreme Court Act to deal with the case "in accordance with" R. v. Morris.

The New Brunswick Court of Appeal, in a decision reported at [2007] N.B.R.(2d) Uned. 12, stayed the sentences that had been imposed on the accused (seven days jail and $2,000 fine) and directed that the parties file written submissions addressing several issues arising from the Supreme Court of Canada's remand order.

The New Brunswick Court of Appeal completely reassessed its first decision in light of R. v. Morris and affirmed its first decision convicting the accused.

Fish and Game - Topic 843

Indian, Inuit and Métis rights - Right to hunt - Extent of right - The accused aboriginals (Maliseet) were observed slowly driving a van along a highway and shining a powerful light towards the powerlines and woods - They were charged with unlawfully hunting wildlife at night with a light (Fish and Wildlife Act, s. 33(1)(b)) - They asserted a right to hunt based on the trade clause in the 1760 Peace and Friendship Treaty - The New Brunswick Court of Appeal stated that a right to engage in hunting in the traditional or commonly understood sense emerged by implication from the trade clause and modern means could be used to exercise that right - See paragraphs 23 to 30.

Fish and Game - Topic 843

Indian, Inuit and Métis rights - Right to hunt - Extent of right - The accused aboriginals (Maliseet) were observed slowly driving a van along a highway and shining a powerful light towards the powerlines and woods - They were charged with unlawfully hunting wildlife at night with a light (Fish and Wildlife Act, s. 33(1)(b)) - Section 1 defined "hunting" as including "searching for" wildlife - The accused asserted a right to hunt based on the trade clause in the 1760 Peace and Friendship Treaty - The New Brunswick Court of Appeal stated that, by making it an offence to search for wildlife with the assistance of a light even where this was done without any intent to capture, kill or wound wildlife, s. 33(1)(b) prohibited conduct wholly unrelated to hunting in the traditional or commonly understood sense - Therefore, searching for wildlife with the assistance of a light for the purpose of observing it to "pass the time" or for "amusement" was an offence under s. 33(1)(b) - The "recreational" activities of the accused were not incidental to the exercise of the right to hunt implicit in the 1760 Treaty's trade clause - The parties to the 1760 Treaty envisaged that the commodities in question would be generated through hunting in the traditional sense and never intended to enshrine wholly unrelated activities such as those carried out by the accused - The prohibition in s. 33(1)(b) was not inconsistent with the1760 Treaty and was valid provincial legislation that applied to the accused - See paragraphs 36 to 47 and 61.

Fish and Game - Topic 2401

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

Chasse et pêche - Cote 843

Droits des Indiens, des Inuits et des Métis - Droit de chasser - Étendue du droit - [Voir Fish and Game - Topic 843 ].

Chasse et pêche - Cote 2401

Infractions de chasse - Chasser avec une lampe - Généralités - [Voir Fish and Game - Topic 2401 ].

Cases Noticed:

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. 3].

R. v. Morris (I.) et al., [2006] 2 S.C.R. 915; 355 N.R. 86; 234 B.C.A.C. 1; 387 W.A.C. 1; 2006 SCC 59, refd to. [paras. 7, 52].

Metzner v. Metzner (2000), 141 B.C.A.C. 84; 231 W.A.C. 84; 2000 BCCA 474, refd to. [para. 18].

Adelaide Capital Corp. v. Offshore Leasing Inc. (1997), 160 N.S.R.(2d) 16; 473 A.P.R. 16 (C.A.), refd to. [para. 18].

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. 29].

R. v. Sundown (J.), [1999] 1 S.C.R. 393; 236 N.R. 251; 177 Sask.R. 1; 199 W.A.C. 1, refd to. [para. 29].

R. v. Prosser (1960), 45 M.P.R. 51; 129 C.C.C. 67 (N.B.C.A.), refd to. [para. 38].

R. v. Phillips and Phillips (1980), 33 N.B.R.(2d) 50; 80 A.P.R. 50 (T.D.), affd.(1981), 37 N.B.R.(2d) 72; 97 A.P.R. 72 (C.A.), revd. [1983] 2 S.C.R. 161; 48 N.R. 372; 50 N.B.R.(2d) 81; 131 A.P.R. 81, refd to. [para. 39].

R. v. Collicott (S.R.) (1987), 80 N.B.R.(2d) 369; 202 A.P.R. 369 (T.D.), affd. (1990),

105 N.B.R.(2d) 355; 264 A.P.R. 355 (C.A.), refd to. [para. 39].

R. v. Tompkins (D.), [1996] N.B.R.(2d) (Supp.) No. 18 (T.D.), refd to. [para. 39].

Statutes Noticed:

Fish and Wildlife Act, S.N.B. 1980, c. F-14.1, sect. 33(1)(b) [para. 5].

Maliseet-Passamaquoddy Treaty (February 23, 1760), generally [para. 5].

Peace and Friendship Treaty (1760) - see Maliseet-Passamaquoddy Treaty (February 23, 1760).

Counsel:

Avocats:

William Richards and Kathryn Gregory, for the appellant;

Ronald E. Gaffney, for the respondent.

This reconsideration hearing was heard on September 12, 2007, by Drapeau, C.J.N.B., Deschênes and Richard, JJ.A., of the New Brunswick Court of Appeal. Drapeau, C.J.N.B., delivered the following judgment in both official languages for the court on January 8, 2008