R. v. Smith, 2012 NSPC 84

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Smith, 2012 NSPC 84 Date: 20120706 Docket: 1748670, 1748671, 1748672 Registry: Annapolis Royal, NS Between: R. v. Ward Tracey Smith Judge: The Honourable Judge Jean-Louis Batiot, J.P.C. Heard: April 25, 26, 2012, May 17, 2012, in Annapolis Royal, Nova Scotia Decision: July 6, 2012 Charge: Contrary to Sections 39(2)WLA, 26WLA, 40(3)WLA Counsel: James Earl Clarke, for the Crown Ward Tracey Smith, self represented By the Court : [ 1 ] These matters have taken a very long time to come to trial. Mr.

Smith, the Defendant was represented by counsel in the past; there have been difficulties to gather the proper evidence; he now represents himself. The Court heard evidence in November 2011 and April 2012. We then adjourned for summations to May 17th, and a decision today, July 6th, 2012.

[2] The Defendant is charged that on October 23rd, 2006, he was, contrary to the Wildlife Act, R.S.N.S. 1989, c. 504, huntingwildlife during the closed season (s. 39 (2) (a)), hunting without a valid licence or permit (s. 26), and in possession of a carcass or partthereof of the deer family (s. 40 (3)). [3] In R. v. Bernard, 2002 NSCA 5, 200 N.S.R. (2d) 352 at para. 37, the Nova Scotia Court of Appeal stated that ... there isno debate that the Mi'kmaq people have an aboriginal right to hunt for food in Nova Scotia, [and refers to particular authorities]. (See R.v.

Isaac (1975), (NS CA), 13 N.S.R. (2d) 460 (C.A.); R. v. Denny (1990), (NS CA), 94 N.S.R. (2d)253 (C.A.); and R. v. Toney (1993), (NS PC), 127 N.S.R. (2d) 322 (P.C.)). [4] It is a simple case for the Crown to establish. It is a more complicated matter to defend since the Defendant has the onus toestablish his right to hunt for food. It is also, understandably, an important issue for him, who is not a Status Indian, and not a member ofa recognized band. [5] An agreed statement of facts was filed on or about September 30th, 2008, establishing the actus reus of the offences.

Thedefendant argues that, as an aboriginal, he is entitled to hunt without a licence and out of season. He has taken exception to CrownCounsel’s characterization of him as a Metis. [6] Indeed Mr. Smith, in his closing statement stated forcefully that he was an aboriginal, but did not present his own evidence,as he had been invited to do so. He was satisfied with the evidence of his witness, Mr. Vincent Giles. [7] Both parties made their submissions in writing.

Crown Counsel reviews the law in dealing with s. 35 of the ConstitutionAct, 1982 defences, referring to the landmark jurisprudence from the Supreme Court of Canada. I refer to the cases most relevant tothe case at bar: R. v. Van der Peet, (SCC), [1996] 2 S.C.R. 507, at para. 69,...the existence of an aboriginal right will depend entirelyon the practices, customs and traditions of the particular aboriginal community claiming the right.

As has already been suggested,aboriginal rights are constitutional rights, but that does not negate the central fact that the interests aboriginal rights are intended toprotect relate to the specific history of the group claiming the right. Aboriginal rights are not general and universal; their scope andcontent must be determined on a case-by-case basis. The fact that one group of aboriginal people has an aboriginal right to do aparticular thing will not be, without something more, sufficient to demonstrate that another aboriginal community has the sameaboriginal right.

The existence of the right will be specific to each aboriginal community. R. v. Mitchell, 2001 SCC 33 , [2001] 1 S.C.R. 911, at para. 11: ...The enactment of s. 35(1) [of the Constitution Act, 1982]elevated existing common law aboriginal rights to constitutional status... At para. 26: Van der Peet [supra] set out the test for establishing an aboriginal right protected under s.35(1).

Briefly stated, the claimantis required to prove: (1) the existence of the ancestral practice, custom or tradition advanced as supporting the claimed right; (2) thatthis practice, custom or tradition was "integral" to his or her pre-contact society in the sense it marked it as distinctive; and (3)reasonable continuity between the pre-contact practice and the contemporary claim. R. v. Nikal, (SCC), [1996] 1S.C.R. 1013, at para. 95: It must also be remembered that aboriginal rights, bydefinition, can only be exercised by aboriginal peoples.

Moreover, the nature and scope of aboriginal rights will frequently be dependantupon membership in particular bands who have established particular rights in specific localities. In this context, a licence may be theleast intrusive way of establishing the existence of the aboriginal right for the aboriginal person as well as preventing those who are notaboriginals from exercising aboriginal rights. R. v. Badger, (SCC), [1996] 1 S.C.R. 771, at para. 76: There is no doubt that aboriginal and treaty rights differ inboth origin and structure.

Aboriginal rights flow from the customs and traditions of the native peoples... Treaty rights, on the other hand,are those contained in official agreements between the Crown and the native peoples.

At para. 77: This said, there are also significant aspects of similarity between aboriginal and treaty rights. Although treaty rights are theresult of mutual agreement, they, like aboriginal rights, may be unilaterally abridged. R. v. Marshall, (SCC), [1999] 3 S.C.R. 533, at para. 17: In the event of another prosecution under the regulations,the Crown will (as it did in this case) have the onus of establishing the factual elements of the offence.

The onus will then switch to theaccused to demonstrate that he or she is a member of an aboriginal community in Canada with which one of the local treaties describedin the September 17, 1999 majority judgment was made, and was engaged in the exercise of the community's collective right to hunt orfish in that community's traditional hunting and fishing grounds. [8] The issue in this case is whether the Defendant, Ward Smith, is aboriginal and part of the Mi’kmaq community. [9] Mr. Smith called one witness, Mr. Vincent Giles, as an expert.

Mr Giles holds a diploma from the former Land SurveyInstitute in Lawrencetown, Annapolis County, NS. He is an engineer by profession, dealing with water works and other design projects;he has also studied history, and particularly genealogy, an interest triggered as he researched his wife’s own genealogy. Over time, hehas acquired a certain clientele -- there was no mention he receives any consideration for such research -- and has developed a specializedunderstanding of the genealogy of African Canadians (Blacks) and Aboriginals (Indians) in the western part of this Province.

He hassearched archives, university and parish records, vital statistics and census. He endeavours to determine the history by searching for, and verifying, whenever possible, original documents, to bring to light any error that could have been made, for instance, in transcribingthem.

In light of the Supreme Court of Canada admonition to have due regards to the difficulties inherent with historical evidence(Mitchell, supra, at para. 27), and with the consent of Crown Counsel, I accepted that he testify as a lay historian, because of hisspecialized knowledge acquired in the course of personal studies. [10] The defence tendered seventeen documentary exhibits over the two days of testimony. The evidence focussed on theDefendant’s genealogy. Mr. Giles, their author, describes, with the help of these documents, the six generations preceding Mr.

Smith,including several of the siblings of each direct ancestors, to introduce relevant evidence of their aboriginal nature, in order to establish, byanalogy, Mr. Smith’s aboriginal ancestry. [11] Since the subject matter deals with racial issues, I will use the dated terminology in vogue at the time these records werecreated (Black, Indian, Negro), as the present terms African/Canadian, or Aboriginal were not yet in use. [12] The earliest relevant record begins around 1790. Mr. Giles’ research shows the Defendant’s ancestry as: 1. ANCESTOR.

George Sims (born circa 1790 - died est. 1865) was born in Maryland, U.S.A., married, on 20th of July 1816, byBanns in the Anglican church of Granville, Annapolis County, NS, Maria (Hanna) Brown (born in Nova Scotia, circa 1790). Accordingto Exhibit 12, the couple had 12 children. The third son, born in the Annapolis County, John W. Sims, is the Defendant’s: 2. GREAT GREAT GREAT GRANDFATHER. John W. Sims, born on 25 February, 1821 (and likely died before the 1901 Census),married Margaret Ann Francis (1824-1910). They had seven children, all born in Annapolis County (Exhibit 5). Their third son is: 3.

GREAT GREAT GRANDFATHER, William Henry Sims (3 May 1841- 30 November 1922), who married Elizabeth Wilson (1846-1928). They had 13 children (Exhibit 13) born in various locations in the Annapolis County, including Delap’s Cove, (the birthplace ofdaughter Inez Sims (1891-1923), which, this aspect will become relevant later. Their tenth daughter is Mr. Smith’s: 4. GREAT GRANDMOTHER, Elizabeth (Lizzie) Sims (Exhibit 15)). She also was born in Delap’s Cove in 1878.

She lived withArthur Lawrence Francis (1878-1938), her first partner – she was married to Stephen James Gehue in Bridgetown, Annapolis County on27 April 1901 – and had several children with Mr. Francis. Her second son, Clifford Francis, was born on 30 October 1909, and is theDefendant’s grandfather. 5. GRANDFATHER. Clifford Francis (d. 21/09/1985) married Ruth Marion Butler (1907-2005). They had six children. Their third

daughter is the mother of the Defendant. 6. MOTHER. Helen Yvonne Francis (04/08/1933 - 04/08/1997) married Everett Smith. The evidence does not indicate where and when. Mr. Giles states that was the Defendant’s mother. [ 13 ] Mr. Smith introduced a further document, Exhibit 18, on summation, with the consent of Crown Counsel, tending to correlate with this genealogy, but showing the other side of the family tree, yet without dates.

It does not add much to the evidence. [ 14 ] The chronology reports do not contain any indications of any membership in an aboriginal community, except for Arthur Francis (the Defendant ’ s common law great grandfather, residing on both the Pictou and Millbrook reserves , and Katherine Lavina Francis at Millbrook (Exhibit 18)). [ 15 ] Mr. Giles does state that the Sims , or Simms name was “ Indian ” . He indicates that in his research he has found documentary evidence that the sister of the Defendant ’ s great grandmother Elizabeth (Lizzie) Sims, Inez Sims was the mother of Marguerite Sims, who married a Mr.

Irving D. Hall. She is described in a Social History report (Exhibit 2) of the Children ’ s Aid Society of Annapolis, dated May 14, 1948, as follows: As the history is given by Rev. A.J. Prosser, a former Agent of the Children ’ s Aid Society of Annapolis, who was responsible for the apprehension of Mr. Hall ’ s first family, Marguerite ’ s mother was an Indian. Some white man, who does not appear to have been known, got the Indian woman pregnant and when he discovered her condition took her to a Ben Sims of Annapolis County and offered him $100 to marry the woman.

Ben accepted the money and married her and Marguerite was born. She was brought up in the coloured settlement just outside of Bridgetown known as Hungry Hill . [ 16 ] Mr. Giles (Exhibit 9) indicates Marguerite was born in 1911, to Inez Sims. The only person shown on the record (Exhibit 13) who could have been Ben , Benjamin George Sims (1881-1964) was Inez’s brother, thus Marguerite’s uncle. Mr. Giles assumes Ben accepted the money to find Marguerite a husband, as he was already married . The point of that evidence is that, as far as the late Rev.

Prosser was concerned, Inez was an Indian, and her daughter had a white father, and the Children’s Aid Society worker believes Marguerite was raised in a Black community (now an African/Canadian one). [ 17 ] We have Inez Sims ’ s death certificate (Exhibit 3). She passed away in Bridgetown on March 9th, 1923, at 32 years of age (born in 1891). Her racial origin is shown as Negro. [ 18 ] Mr. Giles indicates that often it was preferable to be known or described as Black to avoid unnecessary difficulties or discrimination.

He recognizes as well, from his own earlier observations of persons who are now deceased, that they often showed negroid facial features (such as nose shape, hair, skin colour). [ 19 ] Indeed, he refers to a massacre in Digby in 1759 of native people as a reason that likely in the past, native people who could, would suppress their native identity to avoid reprisals, and prefer to be taken as Black . [ 20 ] Another confirmation of racial origin is the Medical Case History of Pte. Ainsley Hathaway Francis (Exhibit 4). It is an eight page documents, covering apparently the year 1943, signed by Army Capt. A.B.

Carter in Halifax, describing Pte. Francis as “ N.A. Indian ” , “ friendly little Indian or of Indian descent , and his father as full Indian. Ainsley ’ s father was Charles Sims, son of Willam Henry Sims, already mentioned, and brother of Inez Sims and Elizabeth Sims, the Defendant ’ s great grandmother . [ 21 ] Mr. Giles describes these small groups of people, of just a few families, as somewhat transient, depending on the economics of the time, living usually by either a Black or Indian community, or on their own, in Delap ’ s Cove, Annapolis County, for instance.

They also went to other parts of the Province, to Ontario or the United States, in search of economic opportunities.

[22] Mr. Smith’s forebears lived in Delap’s Cove, Mr. Giles says, a small community near the shore of the Bay of Fundy, west ofthe present small harbour. It is not clear for how long it existed, but it had a church and a school. There is no longer anyone there. It issome distance, and north of the Annapolis Basin. Mr. Smith claims a right to hunt south of the Annapolis Basin, in Digby, DigbyCounty.

One can only imagine the difficulties of everyday life, so far from communities, with likely very minimal roads and means oftransport. [23] The Defendant filed a written final submission of over 200 pages, including case law. He did not testify. [24] Obviously, Mr. Smith has thought and read a great deal about his history. Much of the reading has been on the Internet. Herefers to many www. (World Wide Web) sites, inviting the Court to do likewise.

That information, unfortunately, is simplyinadmissible, in its form, content and manner of introduction. [25] He cites several cases dealing with aboriginal rights: R. v. Blais, [2003] S.C.C. 44, where the Appellant Manitoba Metis was convicted of hunting deer out of season on unoccupied Crownland. Was he immune from prosecution, as the relevant Wildlife Act regulations infringed his right, as a Metis, to hunt for food? TheSupreme Court of Canada dismissed his appeal as the legal regime in Manitoba treated Metis differently from Aboriginals, and“Indians” did not include “Metis”. Kack and Charlie v.

The Queen, (SCC), [1985] 2 S.C.R. 332. A prohibition under the Wildlife Act of BritishColumbia against killing deer does not raise issue of freedom of religion or the practice of aboriginal religion. This was a decision of theSupreme Court of Canada and it was decided before the Charter of Rights and Freedoms. Pictou v. Canada, 2003 FCA 9 , 2003 F.C.A. 9 (C.A.). The Appellants had argued their Treaty rights to trade with non-Indianswere not limited to fish and other commodities. The Court of Appeal, the Federal Court of Appeal overruled on this and othergrounds. At any rate it is irrelevant to the case at bar.

The other cases, dealing with the right to proceed in French, or for costs, or with family law issues, or identification in a criminal case, ordangerous offender application, or motion to liquidate a corporation, or the doctrine of relation back in property law and executor andadministrator, or solicitor’s security for costs, or human rights law and duty to accommodate, are completely irrelevant to this case, andshould not have been included. [26] The defendant has the onus to establish, on a balance of probabilities, that he is Aboriginal and a member of an Aboriginalcommunity who enjoys the right to hunt for food, as already recognized by the Nova Scotia Court of Appeal in Bernard, supra.

Such aright belongs to a community, who manages it. There is simply no evidence of such community in a case at bar, or of the exercise ofsome managerial system of enjoying that right, a right existing before contact with Europeans, or recognized by Treaty (Marshall,supra). Furthermore, there is no evidence that such community would be entitled to exercise that right in the place Mr. Smith huntedand killed the deer, at or near Digby, Digby County, NS. [27] The evidence discloses that Mr. Smith has a mixed racial heritage, African-Canadian, Aboriginal and Caucasian.

He haselected to establish his status as an Aboriginal. It is not clear what blood percentage should be present to prove it. He has not shown hebelongs to an Aboriginal community who enjoys the right to hunt for food. [28] For the sake of completeness, on the fact of his mixed racial origin, it could be argued that he is a Metis. [29] In R. v.

Powley, 2003 SCC 43 , [2003] 2 S.C.R. 207, the Supreme Court of Canada states, at para. 10: The term “Metis” in s. 35 [of the Constitution Act, 1982] does not encompass all individuals with mixed Indian and Europeanheritage; rather, it refers to distinctive peoples who, in addition to their mixed ancestry, developed their own customs, way of life, andrecognizable group identity separate from their Indian or Inuit and European forebears.

And at para. 17, ...The constitutionally significant feature of the Metis is their special status as peoples that emerged between firstcontact and the effective imposition of European control. [30] The evidentiary difficulty, had this case been argued, is the paucity of evidence as to Mr. Smith’s mixed ancestry, customs,way of life, and recognizable group identity predating effective imposition of European control in this area. A persuasive authority isCanada v. Vautour, 2010 NBPC 39 , [2010] N.B.J.

No 392 Arseneault, A.C.J., New Brunswick Provincial Court, who saysat para. 34, that by 1670 effective political and legal control over the new colony [Acadia] as understood in R. v. Powley, supra hadbeen attained in Acadia. Acadia is the former political entity which eventually became Nova Scotia, as well as other provinces andstates.

And, in the case at bar the earliest we go back is 1790, some 120 years later. [31] In conclusion, on the evidence of this case, I can only say that the Defendant has not established his claim to have a right tohunt for food in a closed season, without a license, or possess a carcass of a deer, in Digby, Digby County and since he has admitted theactus reus of the offences, I must find him guilty of same. _________________________ Jean-Louis Batiot, J.P.C. Annapolis Royal, Nova Scotia July 6, 2012