R. v. Vienneau (Y.), (2014) 419 N.B.R.(2d) 205 (TD)

• Judge: Ferguson, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: November 15, 2013
• Jurisdiction: New Brunswick
• Citations: (2014), 419 N.B.R.(2d) 205 (TD);2014 NBQB 92

R. v. Vienneau (Y.) (2014), 419 N.B.R.(2d) 205 (TD);

    419 R.N.-B.(2e) 205; 1090 A.P.R. 205

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Temp. Cite: [2014] N.B.R.(2d) TBEd. AP.021

Renvoi temp.: [2014] N.B.R.(2d) TBEd. AP.021

Yvon Vienneau and Michel Vienneau (appellants) v. Her Majesty the Queen (respondent)

(N/CA/2/2013; 2014 NBQB 92; 2014 NBBR 92)

Indexed As: R. v. Vienneau (Y.)

Répertorié: R. v. Vienneau (Y.)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Miramichi

Ferguson, J.

April 9, 2014.

Summary:

Résumé:

The accused were convicted of unlawfully hunting moose contrary to s. 32(1)(a) of the Fish and Wildlife Act (N.B.). Both accused were sentenced to a $2,000 fine and seven days' imprisonment. The accused appealed.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the appeal.

Fish and Game - Topic 809

Indian, Inuit and Métis rights - General principles - Aboriginal or treaty rights - Proof of - [See Fish and Game - Topic 826 ].

Fish and Game - Topic 826

Indian, Inuit and Metis rights - Definitions - Aboriginal defined - The accused appealed their convictions for unlawfully hunting moose contrary to s. 32(1)(a) of the Fish and Wildlife Act (N.B.) - Both accused acknowledged that they were hunting moose during the closed season for hunting moose - Their sole defence was that they had a right to do what they did because of their aboriginal status - Both accused were of mixed lineage, but denied that they were Métis - At issue was whether the accused had status under s. 35 of the Constitution Act as members of the "aboriginal peoples of Canada" - The trial judge found that they did not have aboriginal status where they had not established "acceptance by the modern aboriginal community", the third principle enunciated in R. v. Powley (S.) et al. (SCC 2003) - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the appeal - The trial judge's finding that the third branch of Powley had not been met was affirmed - The evidence established that the aboriginal community that was the only community of Indians in that part of the Province was the Pabineau Falls aboriginal community, whether the members of that Indian community lived inside the physical boundaries of the community or outside of them - The trial judge was not in error in using that Indian community as the measure against which the evidence led supporting "community acceptance" of each of the accused could be quantified and judged - The trial judge did not err in her finding that each accused failed to establish "past and ongoing participation in a shared culture, in the customs and traditions" that constituted the Indian aboriginal community in the Pabineau Falls area and "the solid bond of past and present mutual identification of common belonging between the claimant[s] and the other members" of the "community."

Indians, Inuit and Métis - Topic 2.2

General - Aboriginal defined - [See Fish and Game - Topic 826 ].

Indians, Inuit and Métis - Topic 6012

Aboriginal rights - General - Evidence and proof - [See Fish and Game - Topic 826 ].

Chasse et pêche - Cote 809

Droits des Indiens, des Inuits et des Métis - Principes généraux - Droits ancestraux ou issus de traités - Preuve - [Voir Fish and Game - Topic 809 ].

Chasse et pêche - Cote 826

Droits des Indiens, des Inuits et des Métis - Définitions - Autochtone - [Voir Fish and Game - Topic 826 ].

Indiens, Inuit et Métis - Cote 2.2

Généralités - Définitions - Autochtone - [Voir Indians, Inuit and Métis - Topic 2.2 ].

Indiens, Inuits et Métis - Cote 6012

Droits ancestraux - Généralités - Preuve - [Voir Indians, Inuit and Métis - Topic 6012 ].

Cases Noticed:

R. v. Powley (S.) et al., [2003] 2 S.C.R. 207; 308 N.R. 201; 177 O.A.C. 201; 2003 SCC 43, appld. [para. 5].

R. v. Lavigne (G.) (2005), 283 N.B.R.(2d) 298; 740 A.P.R. 298; 2005 NBPC 8, affd. (2007), 319 N.B.R.(2d) 261; 823 A.P.R. 261; 2007 NBQB 171, refd to. [para. 28].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 44].

R. v. Fowler (M.O.) (2006), 304 N.B.R.(2d) 106; 788 A.P.R. 106 (C.A.), refd to. [para. 44].

J.A.M. v. D.L.M. (2008), 326 N.B.R.(2d) 111; 838 A.P.R. 111; 2008 NBCA 2, refd to. [para. 45].

Counsel:

Avocats:

Terrence Lenihan, for the defendants;

Bannon Morrissy, for the Crown.

These appeals were heard on November 15, 2013, by Ferguson, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Miramichi, who delivered the following decision on April 9, 2014.