R. v. Many Fingers, 2011 ABQB 137

Court of Queen ’ s Bench of Alberta Citation: R. v. Many Fingers, 2011 ABQB 137 Date: 20110310 Docket: 051224616S1 Registry: Lethbridge/Macleod Between: Her Majesty The Queen Respondent - and - Norman Bevis Many Fingers Appellant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R.J. Hall _______________________________________________________

Summary Conviction Appeal from the Oral Judgment by The Honourable Judge T. G. Hironaka Dated the 29 th day of April, 2009 (2009 ABPC, Docket: 051224616P1) Facts [ 1 ] The facts below were set out by the Trial Judge: R. v. Many Fingers (29 April 2009), Lethbridge 051224616P101001 (Alta. Prov. Ct.) [“Trial Transcript”] at pp. 571-573. [ 2 ] On October 18, 2005 Richard Charles Red Crow (“Red Crow”) was walking his two dogs (a Pitbull and a Pitbull/Rottweiler

cross) in front of the house of the Appellant, Mr. Norman Bevis Many Fingers (“Many Fingers”). [ 3 ] The house is located in the township of Standoff, located on the Blood Reserve in southern Alberta. [ 4 ] Red Crow’s dogs were attacked by two stray dogs. The Pitbull subdued one of the stray dogs by the neck. The other stray dog left the scene.

The Rottweiler barked and ran in circles around the area where the Pitbull and stray dog were. [ 5 ] Red Crow, and two other individuals in the area Eliza Mills (Many Fingers’ spouse) and Tina Eagle, attempted to stop the dogs engaged in the fight apparently by striking the dogs with sticks and or other objects. Eliza Mills returned to her residence and soon after Many Fingers emerged from this same residence carrying a rifle. [ 6 ] At this point the fighting dogs were located three to four metres from the residence. Many Fingers walked within a few feet of the fighting dogs and fired two shots.

One shot struck the Pitbull in the neck and the other shot apparently struck the Rottweiler. [ 7 ] After being shot, the Pitbull released its hold on the stray dog which left the scene. Nothing more is known about the whereabouts or condition of the stray dog. [ 8 ] Red Crow discovered that the Pitbull was alive but disabled after being shot. He instructed Many Fingers to “finish him off”. Many Fingers complied and shot the Pitbull in the head from close range.

Witnesses estimate that there were 15-30 people, mostly children, in the immediate vicinity of the shooting. [ 9 ] Many Fingers was charged with unsafe use of a firearm under ss. 86(1) and 88(1) of the Criminal Code, R.S.C. 1985, c. C-46 and failure to register a firearm under s. 91(1) of the Criminal Code . Many Fingers was found guilty under s. 91(1) and appeals this charge. Issues [ 10 ] Many Fingers advanced several grounds of appeal in his Notice of Appeal including: the defence of necessity; procedural fairness issues associated with the trial; errors in

interpretation of Treaty 7; error of law; as well as a lengthy supplemental brief questioning the link between gun control and safety. [ 11 ] In my opinion, the relevant legal issues for this appear are: Does s. 91(1) of the Criminal Code violate Many Fingers’ right to hunt for food? Is the duty to consult engaged? If so was it satisfied? If the conviction is upheld, is an absolute discharge warranted? Law [ 12 ] Hunting rights for the Blood First Nation are enshrined in Treaty No. 7, made July 12, 1877 and Adhesions, Reports, etc. by

Roger Duhamel, Queen's Printer and Controller of Stationery, 1966 (“Treaty 7”): And Her Majesty the Queen hereby agrees with her said Indians, that they shall have right to pursue their vocations of huntingthroughout the Tract surrendered as heretofore described, subject to such regulations as may, from time to time, be made by theGovernment of the country, acting under the authority of Her Majesty and saving and excepting such Tracts as may be required or takenup from time to time for settlement, mining, trading or other purposes by Her Government of Canada; or by any of Her Majesty's subjectsduly authorized therefor by the said Government. [13] Generally the Natural Resources Transfer Agreement, a

Schedule to the Alberta Natural Resources Act, R.S.C. 1930, c.3 (the“NRTA”) settled certain constitutional questions between the western provinces and the federal government. With regard to the NRTA’seffect on aboriginal and treaty rights, the Supreme Court in R. v. Badger, (SCC), [1996] 1 S.C.R. 771 at para. 3 heldthat it: (

a) duplicated the right of Indians to hunt for food which was contained in Treaty No. 8 [similar to Treaty 7]; (

b) widely extended the geographical area to include the whole of the province rather than being limited to the tract of land surrendered; (

c) shifted responsibility for passing game laws from the federal government to the provinces; (

d) eliminated the right to hunt for commercial purposes; (

e) is a constitutional document and the Treaty is not, although the Treaty receives constitutional protection by virtue of s. 35(1) of theConstitution Act, 1982. [14] At trial, Many Fingers was convicted of possessing a firearm without a license contrary to s. 91(1) of the Criminal Code. Itstates: Subject to subsections (4) and (5), every person commits an offence who possesses a firearm without being the holder of (

a) a licence under which the person may possess it; and (

b) a registration certificate for the firearm. [15] The licensing and registration requirements for firearms are set out in the Firearms Act, S.C. 1995, c. 39 ss. 4-16. There is afee of approximately $60 for the acquisition of a firearms license with waiver provisions for subsistence hunters: Firearms FeesRegulations, SOR/98-204. [16] The Aboriginal Peoples of Canada Adaptations Regulations (Firearms), SOR/98-205 (the “Aboriginal Regulations”) werecreated to account for the special needs and circumstances of aboriginal peoples by adapting certain provisions of the Firearms Act.

TheAboriginal Regulations allow for recommendations from elders and exemptions from firearms safety courses for elders who haveknowledge of firearms safety and lack a course in their community. [17] Discharges of criminal convictions are governed by s. 730(1) of the Criminal Code: Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which aminimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before

which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, insteadof convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation ordermade under subsection 731(2). The Right to Hunt [18] Many Fingers argues that his conviction and sentencing under s. 91(1) of the Criminal Code violates his aboriginal and treatyrights to hunt for food.

In his view, the NRTA applies only on ceded and surrendered lands and does not apply to reserve lands. [19] The Crown argues that Many Fingers was not in the course of exercising his aboriginal rights at the time of the shooting andtherefore cannot rely on them. The Crown further argues that the s. 91(1) prohibition against unregistered guns goes to safety and thatthe Aboriginal Regulations adapted provisions of the Firearms Act to accommodate aboriginal peoples. [20] R. v.

Sparrow, (SCC), [1990] 1 S.C.R. 1075 sets out the general test for infringement of an aboriginal right.The first question is whether the legislation in question interferes with an existing aboriginal right. If it does there is a prima facieinfringement of s. 35(1) of the Constitution Act, 1982, being

Part II

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the“Constitution Act, 1982”). [21] The burden then shifts to the Crown to justify that the limitation is reasonable. [22] In Badger, three status Indians under Treaty 8 were charged with offences under the Wildlife Act, S.A. 1984, c W-9.1including shooting a moose and hunting without a license. The Supreme Court held that reasonable firearms requirements do not infringeon the aboriginal right to hunt for food.

The accused persons who were hunting on undeveloped land were acquitted under the “visibleincompatible use” test from Sparrow. [23] Badger establishes that reasonable firearms requirements do not infringe the aboriginal or treaty right to hunt for food and thatthese rights are not necessarily expanded or limited by the NRTA. Justice Cory held that the NRTA will not modify a treaty unless there isa direct conflict between the NRTA and the treaty.

Therefore the aboriginal right to hunt for food is an aspect of Treaty 8 that continues inforce and effect: Badger at para. 47. [24] At para. 88, Justice Cory held that there are a number of occasions where aboriginal or treaty rights must be exercised withdue concern for public safety: Standing on its own, the requirement that all hunters take gun safety courses and pass hunting competency tests makes eminently goodsense. This protects the safety of everyone who hunts, including Indians.

It has been held on a number of occasions that aboriginal ortreaty rights must be exercised with due concern for public safety. [25] The other cases cited by Many Fingers consider the extent of the aboriginal right to hunt. The Supreme Court of Canada in R.v. Morris, 2006 SCC 59, [2006] 2 S.C.R. 915 held that changes in hunting methods, in this case night hunting, do not diminish treatyrights although aboriginal persons do not have the right to hunt dangerously. [26] In R. v.

Sundown, (SCC), [1999] 1 S.C.R. 393 a member of a Cree First Nation was permitted to cut downtrees in a provincial park and use them to build a log cabin. The Supreme Court of Canada held that building a log cabin is reasonablyincidental to this First Nation’s right to hunt in their traditional expeditionary style. The hunting method employed by the accused wasfound to be not only traditional but appropriate since shelter was an important component. [27] Conversely in R v. Wilson, 2003 BCPC 56 the aboriginal accused was convicted of hunting bears during a closed season.

TheCourt held that Wilson did not kill the bears for ceremonial or sustenance purposes. There was no evidence that the situation was anemergency, although the Trial Judge did not decide whether safety is subsumed under the right to hunt.

[ 28 ] In Badger , Morris and Sundown the accused persons were in the course of exercising their right to hunt. Many Fingers was not. He admits that he was not hunting for food on October 18, 2005: Trial Transcript at p. 576 lines 6-7. [ 29 ] Many Fingers contends that as an aboriginal person he is not required to licence a firearm that may be used for hunting but does not provide authority for this. Further, Many Fingers has not provided evidence that the right to hunt extends to shooting animals outside of your premises for safety purposes.

The Court in Wilson held that the hunting in question was not for ceremonial or sustenance purposes. The Court declined to conclude whether the right to hunt includes the protection of life or property at para. 20: [D]efence counsel argues that killing a bear to protect life or property is included, or subsumed, in the aboriginal right to hunt for ceremonial and sustenance purposes. I have come to the conclusion that it is not necessary for me to answer that question in this case. In any event, no evidence was led by the defence to support the argument raised by Mr. Sebastian.

Furthermore, the facts of this case, as I find them, do not support the argument that the grizzly bear and cub in question were killed to protect life or property. [ 30 ] Similar reasoning applies to Many Fingers’ conviction. Little evidence was presented regarding whether the right to hunt includes shooting fighting dogs outside of your residence. However, I find that it clearly does not. [ 31 ] For these reasons, Many Fingers has not proven that the aboriginal and treaty right to hunt includes possessing an unlicenced firearm for the activity in question.

The activity in question was not subsumed by the aboriginal right to hunt. Section 91(1) of the Criminal Code does not interfere with an existing aboriginal right in this case: Sparrow . Even if the licencing requirement was a prima facie infringement, it is reasonable to promote public safety for non-hunting purposes: Badger at para. 88 .

The Duty to Consult [ 32 ] Many Fingers argues that there was no consultation with the Blood Nation regarding the gun registration legislation and that the Trial Judge failed to acknowledge the testimony of several witnesses to this effect. [ 33 ] The Crown argues that aboriginal consultation is not required for the criminal law .

Nevertheless, the Crown submits that Bill C-68 which subsequently became the Firearms Act , did include some consultation with aboriginal peoples while in the Senate: Debates and Proceedings of the Senate Committee for Legal and Constitutional Affairs (Hansard), November 19, 1995, at 64:17-64:18; and 64:23-64:24.

If aboriginal consultation is required, the Crown requests the opportunity to present additional evidence on justification [ 34 ] The Supreme Court in Sparrow held that the duty to consult and accommodate is triggered when the legislation in question interferes with an existing aboriginal right causing a prima facie infringement of s. 35(1) . The duty to consult was expanded in Haida Nation v. British Columbia (Minister of Forests) , 2004 SCC 73 , [2004] 3 S.C.R. 511 at para. 35 to situations where there is an unproven but potential aboriginal right asserted: But, when precisely does a duty to consult arise?

The foundation of the duty in the Crown’s honour and the goal of reconciliation suggest that the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the aboriginal right or title and contemplates conduct that might adversely affect it [...] [ 35 ] Shortly after Haida , R. v. Mikisew , 2005 SCC 69 , [2005] 3 S.C.R. 388 at para. 59 clarified that the duty to consult applies in the context of treaties. [ 36 ] The content of the duty to consult and accommodate depends on the circumstances.

The scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the aboriginal right and the seriousness of the potentially adverse effect on the right claimed. Weak claims might only require that the Crown provide notification. Conversely, strong claims could require deep consultation and accommodation: Haida at paras. 39-43.

[37] The Crown cites R v. Lefthand, 2007 ABCA 206 as authority that the government has no consultation requirement forcriminal law. In Lefthand two accused Treaty 7 aboriginal persons were charged under the federal Fisheries Act, R.S.C. 1985, c. F-14and provincial regulations for fishing in a closed area and fishing with live bait respectively. [38] The Court in Lefthand held at para. 122 that the scope of aboriginal fishing rights can be regulated for conservation purposes.The threshold for infringement of aboriginal rights is low and is usually a matter of evidence.

Consultation becomes an issue oncelegislation is in place and there is a prima facie breach of aboriginal rights: Lefthand at para. 38; quoting Mikisew, at para. 59. [39] Lefthand does not support the Crown’s submission that consultation is not required for criminal law legislation. In my view,Lefthand is an application of the principles from Haida and Mikisew. [40] Many Fingers contends that R v.

Nayanookeesic, 2004 ONCJ 108 establishes that the legislation in question isunconstitutional. [41] In Nayanookeesic, two aboriginal men were charged with failing to have a firearms license contrary to s. 91(1) of theCriminal Code. The men claimed that their aboriginal treaty rights allowed them to hunt without a license. The Crown did not presentevidence to establish why it did not honour treaty obligations or consult. The Court determined that the licencing fee provision of theFirearms Act, S.C. 1995, c. 39 infringed s. 35 of the Constitution Act, 1982.

The men were acquitted. [42] The sufficiency of aboriginal consultation was at issue in Nayanookeesic at para. 12: In 1994 the Government produced a document called "The Government's Action Plan on Firearms Control" the last sentence of whichreads: "...aboriginal communities will be consulted on all aspects of the program's implementation to ensure that their aboriginal rights andTreaty rights are respected." [43] The Court found no evidence that the Whitesand Band, of which the two accused were members, was consulted:Nayanookeesic at para. 13. [44] In November 1995, Justice Minister Allan Rock, as he then was, appeared before a Senate Committee and supported anopinion by Constitutional law scholar Peter Hogg that aboriginal people should be relieved from their obligation to pay fees licencingand registration: Nayanookeesic at paras. 14-15.

No fee waiver was incorporated into the Aboriginal Regulations. [45] The Nayanookeesic decision was overturned on appeal with respect to costs ordered against the Crown and not the FirearmsAct or aboriginal rights analysis: R. v. Nayanookeesic (2005), (ON SC), 197 C.C.C. (3d) 212, 131 C.R.R. (2d) 287(Ont. Sup. Ct.).

The Superior Court of Ontario ruled on appeal that a declaration of constitutional invalidity is not available in provincialcourt but confined its judgment to the costs issue. [46] Nayanookeesic had many similarities with the charges against Many Fingers: both charges were under s. 91(1) of theCriminal Code; both accused claimed an aboriginal right to hunt; and both accused argued that the Crown did not satisfy its duty toconsult. [47] The Crown argues that Nayanookeesic is wrongly decided, non-binding and distinguishable.

While the decision is not bindingin this Court, there is little support for the other arguments in the Crown’s brief.

[48] A distinguishing fact is that the Court in Nayanookeesic held that the accused persons were exercising their treaty right tohunt within the Treaty territory and were utilizing firearms as their preferred means of hunting: Nayanookeesic at para. 23. The Crownargues that in Alberta, the only hunting activity constitutionally protected is the right to hunt for food. Many Fingers admits that he wasnot hunting for food when charged: Trial Transcript at p. 576 lines 6 and 7. [49] The Crown cites R v.

Côté, (SCC), [1996] 3 S.C.R. 139 as authority that the requirement to pay a $60firearm licence fee is reasonable and does not amount to an infringement of aboriginal hunting rights. In Côté, the accused was convictedon Federal charges for entering a harvest zone without paying a fee to teach young aboriginals hunting and fishing techniques. Theaccess fee ranged from $3 to $7 and the fine was between $75 and $200.

The Supreme Court held that the financial burden does notamount to an infringement of the appellant’s right to fish for food: Cote at para. 78. [50] There is an issue whether or not the duty to consult was triggered. On one hand, some cases suggest that a prima facie breachof aboriginal rights is required to trigger the duty to consult: see Sparrow and Lefthand.

The Supreme Court in Haida, however,expanded the duty to consult to situations where an unproven but potential aboriginal right exists. [51] The first option is to conclude that Many Fingers has no actual or potential aboriginal right to hunt in these circumstances andthus the duty to consult is not triggered. The second option is to conclude that the duty to consult is triggered for Many Fingers’unproven but potential right to possess an unlicenced firearm for safety purposes. [52] If the duty to consult is triggered the next question is whether it has been satisfied.

The Crown contends, without authority inmy opinion, that the duty to consult does not apply to the criminal legislation. As stated above, I disagree. [53] The adverse affect of the firearm license regulations on the aboriginal right to hunt for food, would likely be at the lower endof the spectrum defined in Haida. This conclusion is based on the Aboriginal Regulations adapting certain firearms regulations toaccommodate aboriginal rights.

The lower adverse effect of the regulations is also supported by the finding in Côté that a modestfinancial burden does not automatically impair an aboriginal person’s right to fish for food. There is at best a tangential connectionbetween Many Fingers’ using an unlicensed firearm for safety purposes as was the case and hunting for food. [54] Haida requires as little as notification to satisfy the duty to consult for “weak claims”: Haida at paras. 39-43. The Court inNayanookeesic considered whether the defendants’ aboriginal ground, the Whitesand Band, was notified.

The Crown has not providedevidence that the that Many Fingers’ Blood First Nation was notified of the Firearms Act regulation. [55] The Crown’s consultation evidence is limited to the Hansard from a 1995 Senate hearing on the Firearms Act. The outcomeof this Senate hearing was seriously questioned in Nayanookeesic. The Minister indicated a preference for waiving fees and certainregistration requirements for aboriginal peoples at the hearing in line with the submissions of aboriginal groups.

This preference does notappear to be reflected in the Aboriginal Regulations. [56] If this was a case where the accused’s treaty rights to hunt for food were being exercised, then I would follow the decision ofNayanookeesic. However, Many Fingers was not exercising such a right. Accordingly there has been no prima facie breach of hisaboriginal rights. I find that, in those circumstances, the issue of whether there was proper consultation between the Crown and theBlood Indians does not arise here. Discharge [57] Many Fingers spent one night in jail and is faced with a $600 fine and a criminal record.

He argues that the Trial Judge deniedhis requests to cross-examine and did not duly consider his time in custody. Many Fingers submits that if he is found guilty he shouldreceive an absolute discharge. [58] The Crown argues that a discharge should only be ordered when it would be in the best interest of the accused and when the

grant of discharge is not contrary to the public interest. The Crown further argues that the findings of the Trial Judge should be upheldand a grant of discharge denied. [59] The Trial Judge determined that a grant of discharge would not be in the public interest and the registration of a convictiondoes not create an unusual hardship on the accused. A discharge was denied because of Many Fingers’ lack of remorse and the publicnotoriety of the trial, Trial Transcript at p. 619 lines 31-34 : In

summary, I am not satisfied that the registration of a conviction would create an usual hardship on Mr. Many Fingers. Further, I amsatisfied that in the light of his lack of remorse and the notorious circumstances of the offence, that to grant a discharge in this case and topermit Mr. Many Fingers to avoid the stigma of a conviction would undermine the public interest. [60] In R. v. McFarlane (1976), 1976 ALTASCAD 6 , 55 AR. 222 (S.C. A.D.), the accused admitted to knowinglybuying and possessing stolen goods and pled guilty. The accused was convicted and a discharge were refused.

There were two conditionsprecedent to the granting of a discharge: whether it was in the best interests of the accused, and whether it was not contrary to the publicinterest. In this case the offence was of a serious nature and the accused profited from it. His previous good behaviour was not of itself areason for a discharge and he deserved a criminal record. [61] Whether a penalty will be in the best interests of the accused depends on whether it would deter him or her from furthercriminal activity.

The Court in McFarlane held “[i]t is to be borne in mind that one of the strongest deterrents to criminal activity,particularly in the case of those who have no records, is the fear of the acquisition of a criminal record.” To be not contrary to the publicinterest, a discharge must not be treated as a substitute for probation and suspension of a sentence: McFarlane at p. 4. [62] The relevant factors to be considered in every case are found in McFarlane at p. 4-5: (1) the nature (and seriousness) of the offence; (2) prevalence of the particular offence; (3) whether the accused stood to make a personal gain at the expense of others (distinguished from situations where motives were otherthan self-interest); (4) the value of property destroyed; (5) whether the crime was calculated; and (6) whether the accused has committed an offence that should be a matter of record (IE theft from employer). [63] In R. v.

Fallofield, (BC CA), [1973] 6 W.W.R. 472, 13 C.C.C. (2d) 450 (B.C.C.A.) the accused wasemployed both as a corporal in the Canadian Armed Services and with a moving company. After a delivery to a new apartment buildinghe took several pieces of carpet that he believed were left over from construction. The accused was convicted of unlawful possession attrial. A discharge was granted on appeal because a conviction would not be in the best interests of the accused and his future career inthe military. The Court further held that deterrence of others would not be diminished by granting a discharge. [64] In R. v.

Sanchez-Pino, (ON CA), [1973] 2 O.R. 314 (C.A.) a discharge was denied for an accused who stolea number of items from several areas of a department store. The accused was an exchange graduate student from Chile and argued that aconviction would lead to her deportation and adversely affect her career. In refusing the discharge, the Court held that the theft was notthe result of a sudden momentary impulse and widespread shoplifting is a matter of public notoriety.

[ 65 ] The Trial Judge also relied on R. v. Poitras , 2005 ABPC 334 , 389 A.R. 38 where a bipolar accused received a discharge from a dangerous driving conviction. The Court held that the reason for the behaviour of the accused should be considered in assessing the deterrence element of the public interest: Poitras at paras. 56 and 61 .

The Court held that deterrence of dangerous driving arising from bipolar behaviour was not necessary. [ 66 ] Section 730(1) of the Criminal Code requires consideration of whether a discharge is in the best interests of the accused and not contrary to the public interest compared to convicting the accused. The Trial Judge cited Many Fingers’ lack of remorse and the “notorious circumstances of the offence” as reasons for denying a discharge. [ 67 ] The best interests of the accused should take into account that Many Fingers views the offence in question as an infringement of his aboriginal rights.

Poitras established that the mitigating circumstances of the accused should be taken into account. In this case, the relevant circumstances include Many Fingers’ status as a aboriginal person. [ 68 ] Many Fingers argued at trial that a criminal record may disqualify him from obtaining a Firearms Acquisition Certificate and exercising his aboriginal right to hunt for food: Trial Transcript at p. 617 lines 6-7.

Similar to the accused in Fallofield , Many Fingers was under the impression that the activity leading to his conviction was lawful due to his aboriginal rights. [ 69 ] The public notoriety stemming from the events of October 18, 2005 likely relates to the shooting of the dogs and not Many Fingers’ possession of an unlicenced firearm.

The Court of Appeal in Fallofield held at para. 21 that the public interest must be given due weight but “does not preclude the judicious use of the discharge provisions.” [ 70 ] Nayanookeesic established that possession of an unlicenced firearm may be permitted as part of the aboriginal right to hunt for food. Therefore, there is some basis for Many Fingers’ belief that he was permitted to possess an unlicenced firearm. [ 71 ] The Court of Appeal held in McFarlane that the relevant factors must be considered in every case: McFarlane at p. 4.

The Trial Judge erred in concluding that the first four McFarlane factors are not particularly important and they were not considered. [ 72 ] Applying the McFarlane factors, the offence in question, possessing an unregistered firearm, does not appear to be unusually serious or prevalent in nature. Many Fingers made no personal gain. [ 73 ] Contrary to the conclusion of the Trial Judge, given Many Fingers’ view of his aboriginal hunting rights prior to the conviction, the crime was not calculated. Unlike Sanchez-Pino , there were not several offences committed over a period of time.

There is little evidence why it should be a matter of record. [ 74 ] Many Fingers spent one night in jail, a factor that was not brought to the attention of the Trial Judge, but which is conceded by the Crown. [ 75 ] In my view, the best interests of the accused and public interest under s. 730(1) of the Criminal Code as well as the McFarlane factors favour a discharge. Conclusion [ 76 ] Many Fingers has not proven that his aboriginal right to hunt for food includes the right to possess an unlicensed firearm for non-hunting purposes such as safety.

There is insufficient evidence that s. 91(1) of the Criminal Code violates Many Fingers’ aboriginal right to hunt for food.

[ 77 ] The duty to consult is triggered where there is a real or potential infringement of an aboriginal right. However, where, as here, the accused was not exercising an aboriginal right, the question is moot; the issue does not arise. [ 78 ] An absolute discharge is warranted based on the best interests of the accused and the lack of a countervailing public interest. The reasons of the Trial Judge in denying a discharge do not appear responsive to the mandatory factors required to be considered in s. 730(1) of the Criminal Code and as defined by the Court of Appeal in McFarlane .

Heard on the 10 th day of January, 2011. Dated at Lethbridge/Macleod, Alberta this 10 th day of March, 2011. R.J. Hall J.C.Q.B.A. Appearances: Eric Brooks for the Respondent Norman Bevis Many Fingers self-represented