R. v. Prairie Chicken (L.) et al., (2010) 504 A.R. 191 (QB)

• Judge: Hironaka, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: January 07, 2010
• Citations: (2010), 504 A.R. 191 (QB);2010 ABPC 176

R. v. Prairie Chicken (L.) (2010), 504 A.R. 191 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. SE.047

Her Majesty the Queen v. Lisa Prairie Chicken and Shane Pilling

(0913335810P1; 2010 ABPC 176)

Indexed As: R. v. Prairie Chicken (L.) et al.

Alberta Provincial Court

Hironaka, P.C.J.

May 17, 2010.

Summary:

The two accused were status Indians and members of the Piikani First Nation, which was a signatory to Treaty 7. The accused were each charged under the Wildlife Act with two counts of unlawfully hunting wildlife during a closed season and two counts of unlawful possession of wildlife; and with unlawful entry onto land without permission, contrary to s. 2(1)(a) of the Petty Trespass Act. The charges arose out of the killing of two antlerless moose on October 26, 2008, on private property that had been rented to a farmer for livestock pasturing. The Crown conceded that the possession of the two moose carcasses was an outcome and extension of the illegal hunting and agreed to a judicial stay of the possession counts under Kienapple principles.

The Alberta Provincial Court judicially stayed the possession counts and convicted the accused on the remaining counts.

Constitutional Law - Topic 5

General principles - Canadian constitution - What constitutes - Proclamations - The two accused were status Indians and members of the Piikani First Nation, which was a signatory to Treaty 7 - They were each charged with, inter alia, two counts of unlawfully hunting wildlife during a closed season and two counts of unlawful possession of wildlife under the Wildlife Act - The charges arose out of the killing of two antlerless moose on private property - The accused filed a Noticed of Constitutional Question - They argued, inter alia, that the Royal Proclamation of December 6, 1869, provided Indians with the legal guarantee that their historical customary hunting practises would not be disturbed - The Alberta Provincial Court rejected the argument - The court followed a decision that held that the Proclamation of 1869 was a political gesture and had no legal force; that even if it had been passed into law by the British Parliament, an ordinary statute would not have constitutionalized rights (R. v. Caron (G.), 2009 Q.B.) - See paragraphs 17 and 29 to 31.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - The two accused were each charged with, inter alia, two counts of unlawfully hunting wildlife during a closed season and two counts of unlawful possession of wildlife under the Wildlife Act - Their son was with them on the hunt - The charges arose out of the killing of two antlerless moose on October 26, 2008 - A voir dire was conducted at trial to determine the voluntariness of the female accused's statement - She testified on the voir dire - The focus of her testimony was to express her and her co-accused's objection and concern with the fact that their son, a youth, was removed from their vehicle without parental permission and placed in a police vehicle for the duration of the police investigation - The Alberta Provincial Court noted that the female accused did not indicate any concern with the content of her statement or the manner in which it was taken - The statement was deemed to have been given voluntarily and was entered into evidence - See paragraph 5.

Fish and Game - Topic 801

Indian, Inuit and Métis rights - General principles - Right to hunt off reserves - The two accused were status Indians and members of the Piikani First Nation, which was a signatory to Treaty 7 - The accused were each charged, inter alia, with two counts of unlawfully hunting wildlife during a closed season and two counts of unlawful possession of wildlife under the Wildlife Act - The Crown conceded that the accused were hunting for food - The accused asserted that, as Indians, they had the right to hunt for food at any time and place within the Dominion of Canada - The Alberta Provincial Court stated that the constitutional protection of Indian hunting rights in Alberta arose as a result of two instruments, the relevant treaty and paragraph 12 of the Natural Resources Transfer Agreement, which modified the Treaty hunting rights - The issue was whether the land on which the accused hunted and killed the two moose were occupied (i.e., put to visible use which was incompatible with hunting) - The court found that here, the lands were occupied lands to which the accused did not have the right of access where: (a) both of the properties were perimeter fenced and gated; (b) all of the properties adjacent to and in the immediate vicinity were perimeter fenced; (c) all the fenced properties were obviously being utilized for pasturing cattle; (d) the residence and ranch outbuildings of one property were clearly visible and within one to two kilometers of the kill site; and (e) there were a number of other inhabited residences in the immediate vicinity that were readily visible to anyone travelling to and from the kill site and Pincher Creek - It was established law that provincial laws of general application applied to Indians, including those regulating hunting except where they were inconsistent with a treaty right to hunt - Neither accused had the right to hunt on the lands where the moose were taken - See paragraphs 28 to 54.

Fish and Game - Topic 809

Indian, Inuit and Métis rights - General principles - Aboriginal or treaty rights - Proof of - [See Indians, Inuit and Métis - Topic 6012 ].

Fish and Game - Topic 843

Indian, Inuit and Métis rights - Right to hunt - Extent of right - [See Fish and Game - Topic 801 ].

Fish and Game - Topic 1661

Offences - General - Possession of wildlife - General - The two accused were status Indians and members of the Piikani First Nation, which was a signatory to Treaty 7 - The accused were each charged, inter alia, with two counts of unlawfully hunting wildlife during a closed season and two counts of unlawful possession of wildlife under the Wildlife Act - The charges arose out of the killing of two antlerless moose on private property - The Crown conceded that the possession of the two moose carcasses was an outcome and extension of the illegal hunting and agreed to a judicial stay of the possession counts under Kienapple principles - The Alberta Provincial Court judicially stayed the possession counts - See paragraphs 9, 10 and 54.

Indians, Inuit and Métis - Topic 4409.1

Treaties and proclamations - General - Limitations on - [See Fish and Game - Topic 801 ].

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - General - Interpretation - [See Constitutional Law - Topic 5 ].

Indians, Inuit and Métis - Topic 6012

Aboriginal rights - Evidence and proof - The two accused were status Indians and members of the Piikani First Nation, which was a signatory to Treaty 7 - The accused were each charged under the Wildlife Act with two counts of unlawfully hunting wildlife during a closed season and two counts of unlawful possession of wildlife; and with unlawful entry onto land without permission, contrary to s. 2(1)(a) of the Petty Trespass Act - The Crown conceded that the accused were hunting for food - The accused asserted that, as Indians, they had the right to hunt for food at any time and place within the Dominion of Canada - Elders testified - The Alberta Provincial Court stated that all of them testified that hunting for food was important and perhaps even sacred to the Piikani people - However, none of them appeared to know or to be able to testify to orally transmitted Piikani hunting practises or traditions that existed prior to contact - Accordingly, although the Elders' evidence was interesting, it was not probative of the issues before the court - See paragraphs 16 to 27.

Trials - Topic 1116

Summary convictions - Defences - Multiple convictions for same subject matter precluded - [See Fish and Game - Topic 1661 ].

Trials - Topic 3058

Offences - Trespass - Defences - The two accused were status Indians and members of the Piikani First Nation, which was a signatory to Treaty 7 - The accused were each charged under the Wildlife Act with two counts of unlawfully hunting wildlife during a closed season and two counts of unlawful possession of wildlife; and with unlawful entry onto land without permission, contrary to s. 2(1)(a) of the Petty Trespass Act (PTA) - The charges arose out of the killing of two antlerless moose on the same date, on private property that had been rented to a farmer for livestock pasturing - The accused argued that the gates to the properties were open, obviating any necessity of their obtaining permission to enter onto them - Section 2.1(1)(b) made it clear that entry was prohibited without any notice on land that was surrounded by a fence - The Alberta Provincial Court stated that evidence demonstrated clearly that the properties were surrounded by fence - The court was satisfied that the accused's entry onto those properties without permission contravened the PTA regardless of whether or not the gates were secured - See paragraphs 11 to 15.

Cases Noticed:

R. v. Kienapple (1974), 1 N.R. 322; 15 C.C.C.(2d) 524 (S.C.C.), refd to. [para. 10].

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. 24].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 24].

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207; 2001 SCC 33, refd to. [para. 24].

R. v. Caron (G.) (2008), 450 A.R. 204; 2008 ABPC 232, revd. (2009), 476 A.R. 198; 2009 ABQB 745, folld. [paras. 29, 30].

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. 42].

R. v. Peeace, 1998 CanLII 13350 (Sask. Prov. Ct.), refd to. [para. 48].

R. v. Ahenakew (G.L.) (2000), 197 Sask.R. 195; 2000 SKQB 425, refd to. [para. 48].

R. v. Bear (H.J.) et al. (2004), 256 Sask.R. 288; 2004 SKPC 137, refd to. [para. 48].

R. v. Horse; R. v. Standingwater, [1988] 1 S.C.R. 187; 82 N.R. 206; 65 Sask.R. 176, refd to. [para. 48].

R. v. Frank, [1978] 1 S.C.R. 95; 15 N.R. 487; 4 A.R. 271, refd to. [para. 52].

R. v. Mousseau, [1980] 2 S.C.R. 89; 31 N.R. 620; 3 Man.R.(2d) 338, refd to. [para. 52].

R. v. Cardinal (1977), 4 A.R. 1; 1977 CarswellAlta 60 (C.A.), refd to. [para. 52].

Statutes Noticed:

Petty Trespass Act, R.S.A. 2000, c. P-11, sect. 2(1)(a) [para. 11]; sect. 2.1(1)(b) [para. 12].

Counsel:

B. Stephenson and R.M. Zanin, for the Crown;

The accused was self-represented.

This case was heard on January 7, 2010, by Hironaka, P.C.J., of the Alberta Provincial Court, who delivered the following decision at Lethbridge, Alberta, on May 17, 2010.