R. v. Toney (B.J.J.), (1993) 127 N.S.R.(2d) 322 (ProvCt)

• Judge: Batiot, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: June 15, 1993
• Jurisdiction: Nova Scotia
• Citations: (1993), 127 N.S.R.(2d) 322 (ProvCt)

R. v. Toney (B.J.J.) (1993), 127 N.S.R.(2d) 322 (ProvCt);

  355 A.P.R. 322

MLB headnote and full text

Her Majesty the Queen v. Brian John James Toney

(Nos. 364062; 364060; 364061)

Indexed As: R. v. Toney (B.J.J.)

Nova Scotia Provincial Court

Batiot, P.C.J.

November 18, 1993.

Summary:

An accused was charged with (1) hunting with a light (count 1); (2) transporting or possessing an uncased firearm at night (count 2); and (3) discharging a firearm across a travelled portion of a highway or within 100 feet of the travelled portion (count 3).

The Nova Scotia Provincial Court acquitted the accused on count 1 and con­victed him on counts 2 and 3.

Fish and Game - Topic 843

Indian, Inuit and Métis rights - Right to hunt for food - Extent of right - [See both Fish and Game - Topic 848 ].

Fish and Game - Topic 848

Indian, Inuit and Métis rights - Right to hunt for food - On non-reserve land - An accused Native was charged with, inter alia, discharging a firearm across a travelled portion of a highway or within 100 feet - The accused was hunting off Reserve land at night with a rifle and light - The deer was found 40 yards from the highway - The Nova Scotia Provincial Court concluded that the aboriginal right to hunt for food off a Reserve did not apply to the public highway and its 66 foot right-of-ways, but acquitted the accused, because it was not satisfied beyond a reasonable doubt that the accused fired the shot while he was within 100 feet of the travelled portion of the highway - See paragraphs 35 and 46.

Fish and Game - Topic 848

Indian, Inuit and Métis rights - Right to hunt for food - On non-reserve land - The Nova Scotia Provincial Court reviewed the jurisprudence relating the aboriginal right to hunt for food, conclud­ing that "... an unextinguished aboriginal right to hunt for food off the Reserve survives to this day through s. 35(1) of the Constitution Act, 1982. It could have been or may be ex­tinguished or modified by Treaty ... grants or possibly licenses, leases or prescription" - See paragraph 27 - The court held that the prohibitions under the Nova Scotia Wildlife Act against jacking and shooting across a highway or within 100 feet of it and the requirement that a rifle be encased at night did not encroach on the aboriginal right to hunt for food - Alternatively, if jacking was an encroachment, the mischief addressed justified the infringement - See paragraphs 36 to 43.

Fish and Game - Topic 2354

Hunting offences - Firearms - Discharg­ing a firearm across or near a highway - [See first Fish and Game - Topic 848 ].

Cases Noticed:

R. v. Isaac (1975), 13 N.S.R.(2d) 460; 9 A.P.R. 460 (C.A.), consd. [para. 6].

R. v. Denny et al. (1990), 94 N.S.R.(2d) 253; 247 A.P.R. 253 (C.A.), consd. [para. 6].

R. v. Simon, [1985] 2 S.C.R. 387; 62 N.R. 366; 71 N.S.R.(2d) 15; 171 A.P.R. 15, consd. [para. 7].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241; 56 C.C.C.(3d) 263, refd to. [para. 8].

R. v. Cope (1982), 49 N.S.R.(2d) 555; 96 A.P.R. 555 (C.A.), refd to. [para. 16].

R. v. Johnson (S.G.) (1990), 122 N.S.R.(2d) 280; 338 A.P.R. 280 (Prov. Ct.), refd to. [para. 23].

R. v. Mousseau, [1980] 2 S.C.R. 89; 31 N.R. 620; 3 Man.R.(2d) 338, consd. [para. 35].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295; 85 D.L.R.(3d) 161; 40 C.C.C.(2d) 353; 3 C.R.(3d) 30; 7 C.E.L.R. 53, consd. [para. 45].

Statutes Noticed:

Constitution Act, 1982, sect. 35 [para. 8]; sect. 35(1) [para. 18 et seq.]; sect. 52 [para. 21].

Lands and Forests Act, R.S.N.S. 1967, c. 163, sect. 150 [para. 24].

Treaty of 1752, clause 4 [para. 25].

Wildlife Act, R.S.N.S. 1989, c. 504, sect. 2 [para. 36]; sect. 6(1), sect. 6(2) [para. 37]; sect. 14, sect. 15, sect. 16, sect. 19 [para. 34]; sect. 19(1), sect. 26, sect. 29, sect. 32 [para. 38]; sect. 38(4) [para. 34]; sect. 39 [para. 38]; sect. 68 [para. 44]; sect. 72 [para. 35]; sect. 80(4), sect. 85 [para. 44]; sect. 105 [para. 48].

Counsel:

Lloyd Tancock, for the Crown;

Walton Cook, Q.C., for the defence.

This case was heard on June 15, 1993, at Bridgewater, Nova Scotia, before Batiot, P.C.J., of the Nova Scotia Provincial Court, who delivered judgment on November 18, 1993, at Annapolis Royal, Nova Scotia.