R. v. Simon, (1982) 49 N.S.R.(2d) 566 (CA)

• Judge: Jones, Hart and Macdonald, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 21, 1982
• Jurisdiction: Nova Scotia
• Citations: (1982), 49 N.S.R.(2d) 566 (CA)

R. v. Simon (1982), 49 N.S.R.(2d) 566 (CA);

    96 A.P.R. 566

MLB headnote and full text

R. v. Simon

(No. S.C.C. 00372)

Indexed As: R. v. Simon

Nova Scotia Supreme Court

Appeal Division

Jones, Hart and Macdonald, JJ.A.

January 21, 1982.

Summary:

The accused Indian was charged with illegal possession of a shot gun cartridge loaded with shot larger than AAA and illegal possession of a rifle during the closed season contrary to the Lands and Forests Act, R.S.N.S. 1967, c. 151. The accused was not on a reserve at the time. He pleaded that the Treaty of 1752 granted him immunity from an application of the Lands and Forests Act. The Nova Scotia Provincial Court convicted the accused. The accused appealed.

The Nova Scotia Court of Appeal dismissed the appeal. Compare: R. v. Polchies (1981), 37 N.B.R.(2d) 546; 97 A.P.R. 546 (N.B.P.C.), and R. v. Perley (1982), 37 N.B.R.(2d) 591; 97 A.P.R. 591 (N.E.F.C.).

Fish and Game - Topic 843

Indian and Inuit rights - Right to hunt for food - Extent of right - The Nova Scotia Court of Appeal held that the Lands and Forests Act, R.S.N.S. 1967, c. 151, was applicable to Indians hunting off reserves in Nova Scotia.

Indians, Inuit and Métis - Topic 4404

Treaties and proclamations - Effect of - The Treaty of 1752 provided: "It is agreed that the said tribe of Indians shall not be hindered from, but have full liberty of hunting and fishing as usual" - The Treaty was made respectIng a band of 90 Micmac Indians - The Nova Scotia Court of Appeal held that the Treaty did not have the effect of granting a right to hunt to Micmacs and did not exempt them from the provisions of the Lands and Forests Act - See paragraphs 5, 21.

Indians, Inuit and Métis - Topic 4412

Treaties and proclamations - General - Evidence - proof of application - The Nova Scotia Court of Appeal held that an Indian seeking to rely on a Treaty must prove an ancestral connection between himself and the signatories to the Treaty - See paragraphs 20 to 21.

Indians, Inuit and Métis - Topic 4415

Treaties and proclamations - General - Breach - Effect of - A band of Micmac Indians signed a peace treaty in 1752 with the British - Within a few months the band breached the Treaty by killing 6 Englishmen - The Nova Scotia Court of Appeal held that breach by the Indians automatically terminated the Treaty and precluded subsequent reliance on it by Indians - See paragraphs 15 to 19.

Indians, Inuit and Métis - Topic 6266

Government of Indians - What laws govern - Provincial laws of general application - Indian Act, R.S.C. 1970, c. 1-6, s. 88 - The Nova Scotia Court of Appeal held that the Nova Scotia Lands and Forests Act, applied to Indians hunting and fishing off reserves.

Cases Noticed:

R. v. Paul and Copage (1977), 24 N.S.R.(2d) 313; 35 A.P.R. 313, appld. [para. 5].

R. v. Julian (1978), 26 N.S.R.(2d) 156; 40 A.P.R. 156, refd to. [para. 5].

R. v. George, [1966] S.C.R. 267; [1966] 3 C.C.C. 137, appld. [para. 9].

R. v. White and Bob (1965), 50 D.L.R.(2d) 613, consd. [para. 12].

Isaac v. The Queen (1975), 13 N.S.R.(2d) 460; 9 A.F.R. 460, appld. [para. 13].

R. v. Cope (1981), 49 N.S.R.(2d) 555; 96 A.P.R. 555, appld. [para. 13].

Statutes Noticed:

Indian Act, R.S.C. 1970, c. I-6, sect. 88 [para. 8].

Lands and Forests Act, R.S.N.S. 1967, c. 151.

Treaty of 1752.

Authors and Works Noticed:

Hall, International Law (8th Ed.), p. 379 et seq. [para. 18].

MacKenzie, N.A.M., Article Respecting Indian Treaties (1929), 7 Can. Bar Rev. 561 [para. 17].

Murdoch, Beamish, History of Nova Scotia [para. 15].

Counsel:

Stephen J. Aronson, for the appellant;

Robert E. Lutes, for the respondent.

This case was heard on November 19, 1981, at Halifax, Nova Scotia, before JONES, HART and MACDONALD, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On January 21, 1982, the judgment of the Appeal Division was delivered and the following opinions were filed:

MACDONALD, JJ.A. - see paragraphs 1 to 22;

JONES, J.A. - see paragraphs 23 to 25.

HART, J.A., concurred with MACDONALD, J.A.