R. v. Simon, (1985) 71 N.S.R.(2d) 15 (SCC)

• Judge: Dickson, C.J.C., Beetz, Estey, McIntyre, Chouinard, Wilson and LeDain, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 21, 1985
• Jurisdiction: Canada (Federal)
• Citations: (1985), 71 N.S.R.(2d) 15 (SCC)

R. v. Simon (1985), 71 N.S.R.(2d) 15 (SCC);

    171 A.P.R. 15

MLB headnote and full text

James Matthew Simon v. Her Majesty The Queen, The Union of New Brunswick Indians Inc., The Native Council of Nova Scotia, Attorney General of Canada, Attorney General for Ontario and Attorney General of New Brunswick

(No. 17006)

Indexed As: R. v. Simon

Supreme Court of Canada

Dickson, C.J.C., Beetz, Estey, McIntyre, Chouinard, Wilson and LeDain, JJ.

November 21, 1985.

Summary:

A Micmac Indian was charged with illegal possession of a shotgun loaded with shot larger than AAA and illegal possession of a rifle during closed season contrary to the Lands and Forests Act, R.S.N.S. 1967, c. 163, s. 150(1). The accused was driving on a public road outside the reserve when he was stopped by the RCMP and the evidence discovered. The accused argued that the Treaty of 1752 granted him immunity from prosecution under the Lands and Forests Act. The Nova Scotia Provincial Court, in a decision not reported in this series of reports, convicted the accused. The accused appealed.

The Nova Scotia Court of Appeal, in a decision reported at (1982), 49 N.S.R.(2d) 566; 96 A.P.R. 566, dismissed the appeal. The accused appealed.

The Supreme Court of Canada allowed the appeal, quashed the convictions and acquitted, the accused, because the accused's activities were permitted under the Treaty of 1752, which by virtue of s. 88 of the Indian Act prevailed over the provincial Lands and Forests Act.

Fish and Game - Topic 802

Indian rights - Right to possess hunting equipment off reserves - The Treaty of 1752 provided that a tribe of east coast Micmac Indians would "not be hindered from, but have free liberty of hunting and fishing as usual" - The Supreme Court of Canada held that the Treaty protected Indian hunting rights and the right to hunt embodied those activities reasonably incidental to hunting (i.e. travelling with the requisite hunting equipment to the hunting grounds) - The court therefore held that a treaty Indian had the right to possess a gun and ammunition in a safe manner in order to be able to exercise his right to hunt - See paragraphs 25 to 31, 40.

Fish and Game - Topic 802

Indian rights - Right to possess hunting equipment off reserves - An Indian was stopped while driving on a public road adjacent to a reserve - He was found to have a shotgun and live and spent shells - He was convicted of unlawful possession of these items contrary to s. 150(1) of the Nova Scotia Lands and Forests Act - He appealed, arguing that he was immune from prosecution because of the Treaty of 1752, which gave him the right to hunt - The Supreme Court of Canada allowed the appeal and acquitted the accused - The court held, inter alia, that the Treaty contained a right to hunt which covered the activities engaged in by the accused and that the Treaty prevailed over the provincial legislation prohibiting his activities.

Fish and Game - Topic 1941

Gun offences - Possession - General - Intent of legislation - The Lands and Forests Act (N.S.), s. 150(1), regulated the possession of shotguns and cartridges in the province - The Supreme Court of Canada stated that "after examining this Provincial Act, it is clear that the intent of the Nova Scotia legislature, in enacting s. 150(1), was to promote the preservation of wildlife in the province by restricting hunting to certain seasons of the year and by requiring permits" - See paragraph 59.

Indians, Inuit and Métis - Topic 4402

Treaties - What constitutes - The Supreme Court of Canada held that the Treaty of 1752 between the Governor of Nova Scotia and a tribe of Micmac Indians living on the east coast, which gave the Indians certain hunting rights, was a treaty validly created by competent parties - The Supreme Court of Canada also held that the Treaty was a "treaty" within the meaning of s. 88 of the Indian Act, R.S.C. 1970, c. I-6, and the fact that the Treaty did not create new hunting or fishing rights but merely recognized pre-existing rights did not render s. 88 inapplicable - See paragraphs 18 to 24, 42 to 51.

Indians, Inuit and Métis - Topic 4404

Treaties - Effect of - Displacement of provincial laws - The Treaty of 1752 between a band of east coast Micmac Indians and the British gave the Indians hunting rights which conflicted with modern day provincial legislation (the Nova Scotia Lands and Forests Act) - The Supreme Court of Canada held that pursuant to s. 88 of the Indian Act the terms of the Treaty that conflicted with the Act prevailed over the Act - See paragraphs 52 to 62.

Indians, Inuit and Métis - Topic 4409

Treaties - Extinguishment - A 1752 Treaty gave certain Indians the right to hunt - Over 200 years later when an Indian sought to rely on the Treaty, the Crown argued that the Treaty was terminated by extinguishment - The Supreme Court of Canada stated "given the serious and far-reaching consequences of a finding that a treaty right has been extinguished, it seems appropriate to demand strict proof of the fact of extinguishment in each case where the issue arises ... 'extinguishment cannot be legally implied'" - See paragraph 38 - The court stated also that it did not "wish to be taken as expressing any view on whether, as a matter of law, treaty rights may be extinguished" - See paragraph 41.

Indians, Inuit and Métis - Topic 4409

Treaties - Extinguishment - A 1752 Treaty gave certain Indians a right to hunt - Over 200 years later an Indian was charged under provincial law with unlawful possession of hunting equipment - The offence occurred adjacent to the reserve - The Crown argued that the Treaty was terminated by extinguishment - The Supreme Court of Canada held that it was impossible to determine whether rights were extinguished where there was no evidence of where the hunting occurred or was intended to occur or the use of the lands in question - The court also held that in this case it was unnecessary to determine whether rights were extinguished, because at the very least the Treaty rights extended adjacent to the reserve - See paragraphs 37 to 41.

Indians, Inuit and Métis - Topic 4410

Treaties - Interpretation - The Supreme Court of Canada referred to the principle that Indian treaties should be given a fair, large and liberal construction in favour of the Indians - See paragraph 27.

Indians, Inuit and Métis - Topic 4410

Treaties - Interpretation - An Indian charged with an offence sought to rely on a 1752 peace treaty, but the Crown argued that it was invalid because of a breach when hostilities broke out between the parties subsequent to the agreement - In argument the parties relied on principles relating to international law on treaty termination - The Supreme Court of Canada stated "while it may be helpful in some instances to analogize the principles of international treaty law to Indian treaties, these principles are not determinitive. An Indian treaty is unique; it is an agreement sui generis which is neither created nor terminated according to the rules of international law" - See paragraph 33.

Indians, Inuit and Métis - Topic 4412

Treaties - Evidence - Proof of applicability - A band of Micmac Indians signed a peace treaty with the British in 1752 which gave the Indians, inter alia, certain hunting rights - Over 200 years later an Indian sought to rely on the Treaty - The Crown argued that he was not covered by the Treaty because he failed to show that he was a direct descendant of a member of the original band covered by the Treaty - The Supreme Court of Canada held that the Indian, who was a Micmac living in the same area as the original tribe, was entitled to rely on the Treaty - See paragraphs 42 to 45.

Indians, Inuit and Métis - Topic 4412

Treaties - Evidence - Proof of termination - The Supreme Court of Canada stated that "once it has been established that a valid treaty has been entered into, the party arguing for its termination bears the burden of proving the circumstances and events justifying termination" - See paragraph 34.

Indians, Inuit and Métis - Topic 4415

Treaties - Breach - Effect of - A band of Micmac Indians signed a peace treaty in 1752 with the British - Shortly thereafter hostilities allegedly broke out between the parties - Over 200 years later an Indian sought to rely on the Treaty - The Crown argued that the Treaty was terminated by breach when the hostilities broke out - The Supreme Court of Canada held that because of inconclusive evidence it was impossible to determine what occurred 233 years ago and the Crown therefore failed to prove that the Treaty was terminated by breach - The court also noted that subsequent to the hostilities there was nothing in the conduct of the British to indicate that the Treaty was terminated - See paragraphs 32 to 35.

Indians, Inuit and Métis - Topic 6260

Government of Indians - What laws govern - General - The Indian Act, s. 88, stated that "subject to the terms of any treaty, all laws of general application ... in force in the province are applicable to ... Indians" - The Supreme Court of Canada held that the words "all laws" in s. 88 referred to provincial legislation and not federal - See paragraphs 52, 53.

Indians, Inuit and Métis - Topic 6266

Government of Indians - What law governs - Provincial laws of general application - The Treaty of 1752 between a band of east coast Micmac Indians and the British gave the Indians hunting rights which conflicted with modern day provincial legislation (the Nova Scotia Lands and Forests Act) - The Supreme Court of Canada held that pursuant to s. 88 of the Indian Act the terms of the Treaty that conflicted with the Act prevailed over the Act - See paragraphs 52 to 62.

Words and Phrases

As usual - An Indian treaty (the Treaty of 1752) provided that the Indian Band "shall not be hindered from, but have free liberty of hunting and fishing as usual" - The Supreme Court of Canada discussed the meaning of the words "as usual" as they appeared in this clause of the Treaty - See paragraphs 28 to 30.

Words and Phrases

All laws - The Indian Act, s. 88 stated that "subject to the terms of any treaty, all laws of general application ... in force in the province are applicable to ... Indians" - The Supreme Court of Canada held that the words "all laws" in s. 88 referred to provincial legislation and not federal - See paragraphs 52, 53.

Words and Phrases

Treaty - The Supreme Court of Canada held that the Treaty of 1752, an agreement between a band of east coast Micmac Indians and the then Governor of Nova Scotia, was a "treaty" within the meaning of s. 88 of the Indian Act, R.S.C. 1970, c. I-6 - See paragraphs 42 to 51.

Cases Noticed:

R. v. Isaac (1975), 13 N.S.R.(2d) 460; 9 A.P.R. 460, consd. [paras. 7, 13, 22, 37, 59].

R. v. Cope (1982), 49 N.S.R.(2d) 555; 96 A.P.R. 555 (N.S.C.A.), refd to. [para. 10].

R. v. Syliboy, [1929] 1 D.L.R. 307 (C.C.), not folld. [para. 20].

R. v. Simon (1958), 124 C.C.C. 110, not folld. [paras. 22, 42, 43].

R. v. Francis (1969), 10 D.L.R.(3d) 189 (N.B.C.A.), refd to. [para. 22].

R. v. Paul (1980), 30 N.B.R.(2d) 545; 70 A.P.R. 545 (C.A.), folld. [paras. 22, 48, 51, 61].

R. v. Atwin and Sacobie (1981), 2 C.N.L.R. 99 (N.B.P.C.), folld. [paras. 22, 51, 61].

R. v. Sect. of ex parte Indian Assoc. of Alta. and Others, [1982] 2 All E.R. 118 (C.A.), refd to. [para. 22].

R. v. Paul and Polchies (1984), 58 N.B.R.(2d) 297; 151 A.P.R. 297 (P.C.), folld. [paras. 22, 48, 61].

Nowegijick v. Minister of National Revenue, [1983] 1 S.C.R. 29; 46 N.R. 41, appld. [para. 27].

R. v. White and Bob (1964), 50 D.L.R.(2d) 613 (B.C.C.A.), folld. [paras. 33, 47, 48, 49, 54, 61].

Francis v. R., [1956] S.C.R. 618, refd to. [para. 33].

Pawis v. R. (1979), 102 D.L.R.(3d) 602, refd to. [para. 33].

Calder et al. v. Attorney General of B.C., [1973] S.C.R. 313, refd to. [para. 37].

United States v. Santa Fe Pacific Ry. Co. (1941), 314 U.S. 339, folld. [paras. 37, 38].

Johnson and Grahams Lessee v. McIntosh (1823), 21 U.S. 543, refd to. [para. 37].

Worcester v. Georgia (1932), 31 U.S. 515, refd to. [para. 37].

R. v. Mousseau, [1980] 2 S.C.R. 89; 31 N.R. 620, dist. [para. 39].

R. v. George, [1966] S.C.R. 267, folld. [paras. 53, 54].

R. v. Sikyea (1964), 43 D.L.R.(2d) 150, refd to. [para. 54].

R. v. Frank, [1978] 1 S.C.R. 95; 15 N.R. 487, refd to. [para. 55].

R. v. Kruger and Manuel, [1978] 1 S.C.R. 104; 15 N.R. 495, refd to. [para. 56].

R. v. Paul and Copage (1977), 24 N.S.R.(2d) 313; 35 A.P.R. 313 (N.S.C.A.), refd to. [para. 59].

R. v. Taylor and Williams (1982), 34 O.R.(2d) 360 (Ont. C.A.), refd to. [para. 61].

R. v. Moses (1969), 13 D.L.R.(3d) 50 (Ont. Dist. C.), refd to. [para. 61].

R. v. Penasse and McLeod (1971), 8 C.C.C.(2d) 569 (Ont. P.C.), refd to. [para. 61].

Cheeco v. R. (1981), 3 C.N.L.R. 45 (Ont. D.C.), refd to. [para. 61].

R. v. Batisse (1978), 10 O.R.(2d) 145 (Dist. Ct.), refd to. [para. 61].

R. v. Paul and Paul (1983), 43 N.B.R.(2d) 449; 113 A.P.R. 449 (C.A.), refd to. [para. 48].

Statutes Noticed:

Constitution Act, 1867, sect. 91(24) [para. 54].

Constitution Act, 1982, sect. 35(1) [paras. 16, 64 to 67].

Indian Act, R.S.C. 1970, c. I-6, sect. 88 [paras. 46 to 63].

Lands and Forests Act, R.S.N.S. 1967, c. 163, sect. 150(1), sect. 150(2), sect. 150(3), sect. 150(3A), sect. 150(4) [para. 58].

Treaty of 1752.

Authors and Works Noticed:

MacKenzie, N.A.M., Indians and Treaties in Law (1929), 7 Can. Bar Rev. 561, 565 [para. 23].

Upton, L.F.S. Micmac and Colonists: Indian-White Relations in the Maritimes 1713-1867 (1979) [para. 32].

Counsel:

Bruce H. Wildsmith for Simon (the accused);

Robert E. Lutes and Brian Norton, for the respondent;

Graydon Nicholas, for the Union of New Brunswick Indians, Inc. (Intervenant);

John P. Merrick, Q.C., and Bruce Clarke, for the Native Council of Nova Scotia (Intervenant);

John Rook and Martin Freeman for the Attorney General of Canada (Intervenant);

J.T.S. McCabe, for the Attorney General for Ontario (Intervenant);

J.T. Keith McCormick, for the Attorney General of New Brunswick (Intervenant).

This appeal was heard on October 23 and 24, 1984, before Dickson, C.J.C., Beetz, Estey, McIntyre, Chouinard, Wilson and Le Dain, JJ., of the Supreme Court of Canada. The following decision of the court was delivered by Dickson, C.J.C., on November 21, 1985: