HER MAJESTY THE QUEEN - v. -, 2012 NBPC 19

R. v. Stanley R. Castonguay 2012 NBPC 19 Ta bufile: 02644008 CANADA PROVINCIAL COURT OF NEW BRUNSWICK BETWEEN: HER MAJESTY THE QUEEN - and - STANLEY R. CASTONGUAY DATES OF TRIAL: October 18 th , 2010, November 16 th , 17 th & 18 th , 2011, January 31 st , 2012 and June 28 th , 2012 PLACE OF TRIAL: Grand Falls, New Brunswick DATE OF DECISION: September 18 th , 2012. APPEARANCES: Ms. Karen Lee-Lamrock, on behalf of the crown Mr. Stanley R. Castonguay, per se, with agent DUFFIE, Prov. Ct. J. INTRODUCTION [ 1 ] Mr. Castonguay is charged for having in his possession a portion of a moose carcass contrary to

section 58 of the Fish & Wildlife Act of New Brunswick. [ 2 ] Mr. Castonguay claims that his is an aboriginal because he was issued a membership card from Confederation of Aboriginal People of Canada which confirms his status as a member of an aboriginal community, namely, la Nation autoctone du Nord-Ouest du Nouveau-Brunswick. Consequently, he had a right, protected by s. 35 of the Constitution Act , 1982. [ 3 ] He adds that this is not a question of the right to hunt for substance, but rather the right to possession of moose meat; with the intention of recuperation for the benefit for the community of a moose found dead. FACTS

The offence [ 4 ] Mr. Castonguay does not dispute the essential facts giving rise to this charge. Mr. Castonguay and Karen Lee-Lamrock, agent for the Attorney General, entered into an agreed statement of facts. It was agreed that on October 10 th , 2008 at or near 3425 Route 108, New Denmark, New Brunswick Mr. Castonguay was found in possession of a partial moose carcass. [ 5 ] Mr. Castonguay was stopped by Federal Game Officers on October 9 th , 2008 while in possession of a portion of a moose carcass.

At the time he produced a laminated card issued in his name, identifying him as belonging to the Confederation of Aboriginal People of Canada. He was allowed to go on his way. [ 6 ] On October 10, 2008, a Provincial Conservation Officer was made aware of the situation with Mr. Castonguay and contact was made with Mr. Castonguay who was eventually charged for the possession of the moose carcass. Additional evidence presented by Mr. Castonguay Expert Evidence: [ 7 ] Mr. Alexandre Alemann, an ethnologist, was qualified as an expert to give evidence as to Mr.

Castonguay’s ancestral ties, family ties and his community of interest. Mr. Alemann testified that Mr. Castonguay has some aboriginal lineage between the tenth and thirteenth degrees. [ 8 ] Mr. Alemann’s testimony was very lengthy and historical in nature of our region. However, the bottom line is that he clearly said that in his opinion no Métis community could be identified in New Brunswick. Mr. Alemann confirmed that Mr. Castonguay may have some aboriginal rights such as the right to call himself Métis but the community he says he belong to is neither Indian, Métis or ennuit. [ 9 ] Mr.

Alemann testified that the group founded in the Grand Falls, New Brunswick as the Nation autochtone du Nord-Ouest du Nouveau-Brunswick, to which Mr. Castonguay belongs and that is sanctioned by the Confederation of Aboriginal people of Canada is new and trying to find its way. However, the group is not derived from ancestral roots or communal roots. Mr.

Alemann is of the opinion that the group is trying to use their association as a beginning to self identify themselves as aboriginal and/or Métis but, he is of the view this is not is contemplated by s. 35 of the Constitution Act. [ 10 ] As to the Confederation of Aboriginal people of Canada organization and to the local group Mr. Castonguay belongs to Mr. Alemann agreed they have a right to organize however, he says it is not up to these groups to identify who can achieve aboriginal status under s. 35 of the Constitution Act. He adds that role is reserved for the Courts.

He went on to say that the Grand Falls group may require an amendment to the present law to help them establish any aboriginal status. As they now stand, he is of the view that they are simply structured as a political organization with a non-profit flavor. [ 11 ] In

summary, the Court concludes that Mr. Alemann’s testimony did not assist Mr. Castonguay is establishing his s. 35 rights under the Constitution Act of 1982. In fact, his expert testimony did the contrary. Evidence of Mr. Guy Frigon [ 12 ] Mr. Frigon is the President and Grand Chief of the Confederation of Aboriginal People of Canada. He says the association was created to assist non-status people determine their aboriginal ancestry and to observe aboriginal customs and traditions that were either eliminated or lost so many years ago.

[ 13 ] To gain membership, one must apply and prove some aboriginal ancestry and a willingness to abide by the traditions of the aboriginal way of life. The association does issue a card and it identifies the bearer of the card as having rights under s. 35 of the Constitution Act of 1982. Mr. Frigon was quick to point out however, that the card did not confer any rights under the Indian Act. [ 14 ] Mr. Frigon is of the view that Mr.

Castonguay, while in possession of moose meat, was really a transporter and was simply carrying out his tradition family aboriginal ways to process and distribute meat to his community members in need. And as a card carrying member of the Confederation of Aboriginal People of Canada he had a right to do so. Evidence of Stanley Castonguay [ 15 ] Mr. Castonguay testified that on the 9 th day of October, 2008 he received a call, from an unknown person, that there was a dead moose in the woods and Mr.

Castonguay agreed to find and pick up the moose carcass. [ 16 ] Once he had the moose in his possession he was stopped by a Federal Warden and Mr.

Castonguay produced the card he had been issued by the Confederation of Aboriginal People of Canada and was told everything was legal and sent on his way. [ 17 ] He adds that it was his intention to distribute the meat to those in need and didn’t think he was doing anything wrong because he had his card and the moose was already dead. [ 18 ] However, the next day he was intercepted by a Provincial Conservation Officer who advised him that it was illegal to have moose in his possession and was charged.

He says that the whole situation was confusing as he was told by officials one day he was legal and the next he was not. [ 19 ] He further testified that he and his family always observed the aboriginal ways and customs. He was always a meat carrier even assisting his father to distribute meat. He says when he wanted to hunt for sport he would get a license. He adds that he learned from his grandfather and father to hunt for food and trade in the native way.

In fact, he says once a kill was completed he would participate in a native ceremony acknowledging the kill. [ 20 ] He admitted that his own father was stopped and charged for possession of Deer meat years ago. He also admitted that he applied for and was not granted his Indian status from Ottawa. He believes he should have Indian status rights as his Grandmother was part native and she lived on the Tobique Reserve. He says he has always maintained a close relationship with the native community on the Tobique Reserve and that he would visit his grandmother at the reserve.

He also testified that in the past he has participated in hunting activities with the natives on the reserve [ 21 ] He claims he was part of a Métis community in Ontario and has practiced native customs all his life. Consequently, he identifies himself as aboriginal and thought he was within his rights to possess the moose meat. Crown’s rebuttal evidence [ 22 ] Conservation officer Sterling McKaskill testified that he has known Mr. Castonguay for some 7 to 8 years. He was aware that Mr. Castonguay had a card from the Confederation of Aboriginal People of Canada because in 2007 he had dealt with Mr.

Castonguay in regards to different matters. At the time the issue of the card had been raised by Mr. Castonguay and Mr. McCaskill testified that he advised Mr. Castonguay that the card was not valid and that they would only recognized an Indian Status card. In his view, Mr. Castonguay was fully aware that the card he possessed was not valid for hunting or possession of game meat. Futhermore, he says Mr. Castonguay had advised that he was going to apply for his Indian Status card.

Legislation and Regulatory Regime [ 23 ] Mr. Castonguay is charged under

section 58 of the Fish & Wildlife Act of New Brunswick

Chapter F-14.1 which reads as follows: 58 Every person who at any time has in his possession the carcass of a bear, moose or deer or any part thereof, except in accordance with this Act and the regulations, commits an offence. THE CASE [ 24 ] Mr. Castonguay rested his defence on the claim that, as a member of the Métis community or as a card carrying member of the Confederation of Aboriginal People of Canada , he had an “existing aboriginal” right to possess moose meat and especially meat from a dead moose, as guaranteed by s. 35 of the Constitution Act , 1982. [ 25 ]

Section 35 of the Constitution Act , 1982, reads as follows: RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA Recognition of existing aboriginal and treaty rights 35.

(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. Definition of "aboriginal peoples of Canada"

(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada. Land claims agreements

(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired. Aboriginal and treaty rights are guaranteed equally to both sexes

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons. [ 26 ] As the essential elements of the offence were admitted, the evidence presented related to Mr. Castonguay’s claim that as an aboriginal he has rights under s. 35 of the Constitution Act , 1982. The evidence consisted of genealogy evidence, expert evidence and Mr. Castonguay’s own evidence of how he, his father and grandfather all lived off the land.

He further claims that due to his ancestral background and the fact that throughout his life he has always followed aboriginal heritage and customs that this should be enough to qualify him as a legitimate carrier and transporter of meat for the benefit of his community. ISSUES

[27] First, does the genealogy evidence confirm that Mr. Castonguay is of mixed aboriginal and European descent? [28] Secondly, if his Métis heritage is confirmed, is there any historical evidence of a Métis community in the region where he fishedand lives, or that he forms part of that community which continues to survive, in order to claim his aboriginal status under s. 35 (2) of theConstitution Act, 1982? [29] Does the fact that Mr. Castonguay is a card carrying member of Confederation of Aboriginal People of Canada give him aboriginalstatus under s. 35 (2) of the Constitution Act, 1982?

Furthermore, does it give him the right to transport moose meat (and in particularmeat from a dead moose) and distribute the same to community members in need? [30] Based on the testimony of Mr. Castonguay, should he benefit from the principles established in the R. v. Sault Ste. Marie case,(SCC)

(1978) CanLII 11? Succinctly put, is there a possibility of the defence of believing in a mistaken set of facts or the defence ofreasonable care and due diligence is available to him in the circumstances? POSITION OF THE PARTIES [31] The Crown’s position is that Mr. Castonguay has failed to meet the onus and in particular, he has failed to show the existence of anhistoric rights bearing community, a current rights bearing community, and has failed to show any link ancestral belong to such acommunity. [32] The Crown further submits that Mr.

Castonguay has shown, through his testimony and that of his witnesses, that he belongs to anewly formed non-rights bearing community group which is seeking recognition and an allocation of hunting, fishing and other rights.This community has never been recognized by any government not have they been re-affirmed by s. 35 of the Constitution Act of 1982. More specifically, the Crown puts forward that the current community to which Mr.

Castonguay belongs does not have a continuous linkto any past rights bearing community. [33] With respect to the issue of a mistaken set of facts which was raised by this court, the Crown is of the view that the evidence ofConservation Officer McAskill makes it clear that Mr. Castonguay was aware of the Province’s position with respect to his rights to hunt,fish or possess game meat without a license. [34] However, Mr.

Castonguay’s position is that even though his identity card, issued by the Confederation of Aboriginal People ofCanada which confirms that he is a member of an aboriginal community, namely, “La Nation autochthones du Nord-Ouest du Nouveau-Brunswick”, is not recognized by the Provincial authorities the Court should find and conclude on all of the evidence that he is in factaboriginal. [35] Mr.

Castonguay points out that the evidence clearly shows he is an aboriginal belonging to an aboriginal family which belongs toan aboriginal community from the Grand Falls region, which itself forms part of the “La Nation Autochthones du Nord-ouest duNouveau-Brunswick”. [36] He adds that he has always followed the aboriginal traditions and customs and he plays an important role in his community inregards to the transformation and distribution of foodstuff to those in need.

He is simply following a longtime customs and tradition thathas been carried for generations in his family. [37] He further submits that test outlined by the Supreme Court of Canada in the R. v. Powley, (2003) 2003 SCC 43 , 2 S.C.R.207 should not be applicable to him. He argues that the expert evidence of Mr. Alemann tells us that in his eyes his case is not the sameas the Powley case because the Powley case is situation specific that does not correspond to the situation of the aboriginal people inEastern Canada. He points out Mr.

Powely was declared a Métis living within an Indian Reserve. [38] Nevertheless, at page 10 in paragraph 28 in his brief submitted to the Court Mr. Castonguay agrees that the test he is subjected to in

the one set out by the Supreme Court in R v. Van der Peet ((1992) 2 S.C.R. 507. ANALYSIS [39] Mr. Castonguay has the onus of proof, on a balance of probabilities, that he has an aboriginal right to possess moose meat. [40] The first issue to be considered is whether Mr. Castonguay has a mixed aboriginal and European descent. Having reviewed thereport of Mr. Alemann and listened to his evidence, I am prepared to conclude that Mr. Castonguay does have aboriginal ancestry. [41] Now I must proceed to the second issue and assess Mr.

Castonguay’s claim to his aboriginal rights under s. 35 of the ConstitutionAct, 1982, and in terms of the test established by the Supreme Court of Canada. [42] The Supreme Court of Canada in the case of R. v. Sparrow, , held that Métis rights, like all aboriginal rights,flow from historical traditions and practices of Métis communities. The court further held that aboriginal rights are communal, ratherthan individual, and are site specific. [43] In the case of R. v.

Van der Peet, supra, the Supreme Court affirmed the communal nature of aboriginal rights which was appliedand refined by the Supreme Court of Canada in R. v. Powley, supra, holding that the right claimed must be an activity that is “anelement of a practice, custom or tradition integral to the distinctive culture of the Aboriginal group claiming the right”. [44] The Supreme Court of Canada in R. v.

Powley, supra, reviewed the term “Métis” in paragraph 10 at page 5 as follows: The term “Métis” in s. 35 does not encompass all individuals with mixed Indian and European heritage; rather, itrefers to distinctive peoples who, in addition to their mixed ancestry, developed their own customs, way of life, and recognizablegroup identity separate from their Indian or Inuit and European forebears. Métis communities evolved and flourished prior tothe entrenchment of European control, when the influence of European settlers and political institutions became pre-eminent.

The Royal Commission on Aboriginal Peoples describes this evolution as follows: Intermarriage between First Nations and Inuit women and European fur traders and fishermen producedchildren, but the birth of new Aboriginal cultures took longer. At first, the children of mixed unions were brought up in thetraditions of their mothers or (less often) their fathers. Gradually, however, distinct Métis cultures emerged, combiningEuropean and First Nations or Inuit heritages in unique ways. Economics played a major role in this process.

The specialqualities and skills of the Métis population made them indispensable members of Aboriginal/non-Aboriginal economicpartnerships, and that association contributed to the shaping of their cultures. . . . As interpreters, diplomats, guides, couriers,freighters, traders and suppliers, the early Métis people contributed massively to European penetration of North America. The French referred to the fur trade Métis as coureurs de bois (forest runners) and bois brulés (burnt-wood people)in recognition of their wilderness occupations and their dark complexions.

The Labrador Métis (whose culture had early roots)were originally called “livyers” or “settlers”, those who remained in the fishing settlements year-round rather than returningperiodically to Europe or Newfoundland.

The Cree people expressed the Métis character in the term Otepayemsuak, meaning the“independent ones”. (Report of the Royal Commission on Aboriginal Peoples: Perspectives and Realities, vol. 4, at pp. 199-200 (“RCAPReport”)) The Métis developed separate and distinct identities, not reducible to the mere fact of their mixed ancestry: “Whatdistinguishes Métis people from everyone else is that they associate themselves with a culture that is distinctly Métis” (RCAPReport, vol. 4, at p. 202).

[ 45 ] In the judgment R. v. John (Jackie) Vautour and Roy Vautour, 2010 NBPC 39 , Judge Pierre Arsenault of the Provincial Court dealt with the same issue. He identifies the issue of Métis status at paragraph 4, at page 2, as follows: While the term Métis in Canada is often popularly used to describe a person of mixed aboriginal and European (often French/ Acadian) descent this case is not just about whether Jackie and Roy Vautour have genealogical roots in both the Acadian and Mi’ kmag or some other aboriginal community.

As will be discussed below, aboriginal rights that are entrenched in our Constitution are communal in nature and must be rooted in the existence of a historical and present community (in this case Métis) and may only be exercised by reason of an ancestrally based membership in the present community. [ 46 ] In R. v. Powley , supra, the Supreme Court stated that the onus is on a person claiming a Métis right to prove and establish the following facts: 1) Characterization of the Right [ 47 ] Mr.

Castonguay says his case is not a question of the right to hunt for substance, but rather the possession of moose meat, with the intention of recuperation for the benefit of the community of a moose found dead. Therefore, he must prove, along with the rest of the criteria cited below, that he has some form of aboriginal status or the existence of a historic Métis community in his area to which he belonged to at the time of the alleged offence and that he possessed the moose meat in that specific area. [ 48 ] Mr. Castonguay was unable to present such evidence.

If a Métis community did exist in the Parish of New Denmark and Mr. Castonguay’s or his heirs formed part of that community, there is no evidence that community exists today. There is also no evidence of any aboriginal status in regards to Mr. Castonguay. 2) Identification of the Historic Rights-Bearing Community [ 49 ] Mr. Castonguay submits, that in the present case, it is established by all historians that an aboriginal community originated on the Saint John River urged on by Charles La Tour at the beginning of the seventeenth century till 1645.

He adds this community continued on this same river at the beginning of the eighteenth century and peaked around 1745 by the development of the children that were saved during the historic massacre of Easter Monday 1645 and their descendant’s generation after generation. [ 50 ] He says this community modeled its way of life from the traditions of their aboriginal and French ancestors. However, Mr. Castonguay’s own expert Mr. Alemann pointed out that historically French people along with Aboriginal inhabitants joined creating a mixed race group and they were recognized as French rather than as aboriginal.

As such he says no Métis community in the real sense of its definition was ever created or existed. [ 51 ] Mr.

Alemann testified that in his opinion there is no evidence of a historic Métis community anywhere in New Brunswick. 3) Identification of the Contemporary Rights-Bearing Community [ 52 ] The Supreme Court in Powley , supra, had this to say at page 8, paragraph 24: Aboriginal rights are communal rights: They must be grounded in the existence of a historic and present community, and they may only be exercised by virtue of an individual’s ancestrally based membership in the present community. [ 53 ] I conclude that the evidence does not support the existence of a contemporary Métis community. Again, Mr.

Castonguay’s expert testified that Mr. Castonguay belongs to an organized group seeking aboriginal status however; this was a new group and could not, in his opinion, be linked to an historic Métis community or was able to create a new Métis community so as to meet the requirement of s. 35

of the Constitution Act. [ 54 ] Consequently, Mr. Castonguay’s claim that the present group, that he belongs to in Grand Falls and surrounding area, is a continuation of the historic community of the Saint John River cannot be sustained. 4) Verification of the Claimant’s Membership in the Relevant Contemporary Community [ 55 ] There was no evidence as to Mr. Castonguay’s membership in a relevant contemporary community. There appears to be efforts to identify Mr.

Castonguay’s Métis ancestry by the Confederation of Aboriginal People of Canada and its affiliate la Nation autochtone du Nord ouest du Nouveau- Brunswick and to legitimize his Métis status by granting of a membership card to identify and confirm Métis ancestry. [ 56 ] However, the Supreme Court in R. v. Powley , supra, had this to say about this test at page 8, paragraph 30: We emphasize that we have not been asked, and we do not purport, to set down a comprehensive definition of who is Métis for the purpose of asserting a claim under s. 35 .

We therefore limit ourselves to indicating the important components of a future definition, while affirming that the creation of appropriate membership tests before disputes arise is an urgent priority. As a general matter, we would endorse the guidelines proposed by Vaillancourt Prov. J. and O’Neill J. in the courts below. In particular, we would look to three broad factors as indicia of Métis identity for the purpose of claiming Métis rights under s. 35 : self-identification, ancestral connection, and community acceptance.

And at page 9, paragraph 33: Membership in a Métis political organization may be relevant to the question of community acceptance, but it is not sufficient in the absence of a contextual understanding of the membership requirements of the organization and its role in the Métis community . The core of community acceptance is past and ongoing participation in a shared culture, in the customs and traditions that constitute a Métis community’s identity and distinguish it from other groups. (My underlining). [ 57 ] I accept that Mr.

Castonguay may have presented evidence as to an ancestral connection; however, the evidence is lacking in regards to his self-identity as a member of a Métis community and he has failed to demonstrate that he is accepted by any Métis community. 5) Identification of the Relevant Time Frame [ 58 ] No evidence was advanced as to the pre-contact aspect outlined in R. v. Van der Peet , supra, nor was the post-contact possibility as outlined in R. v. Powley , supra. Consequently, this criterion has not been met. 6) Determination of Whether the Practice is Integral to the Claimant’s Distinctive Culture [ 59 ] Mr.

Castonguay established that his grandfather, his father and he were avid hunters and fishermen and did so to provide for their subsistence, for trade and sharing its bounty in their community. [ 60 ] Unfortunately, no evidence was presented that they did so as part of a Métis community and that members of that community live off the land. The Court is of the view that Mr. Alemann’s expert testimony clearly established that the French and the Aboriginal created a mix race and essentially aboriginals were assimilated into the French culture.

It may well be that they carried out similar activities to sustain their livelyhood, but no aboriginal communities were created as a result in the Grand Falls or anywhere in the Province of New Brunswick.

[ 61 ] Mr. Alemann was of the opinion that the only Aboriginals in existence in New Brunswick are full status Indians living on or off reserves. 7) Establishment of Continuity between the Historic Practice and the Contemporary Right Asserted [ 62 ] Mr. Castonguay claims he has been following long time family traditions by observing and living by aboriginal ways and customs. He insists that the right he is claiming is just as important as an aboriginal right to hunt for subsistence. The right he speaks about is the right to consume and distribute to the community wild game found dead.

He adds that he has been part of a community that has practiced trapping for a very long period of time and the consummation of these foodstuffs is customary and this activity of recuperation is framed by an Aboriginal spiritual ceremony transmitted from generation to generation until today. [ 63 ] The Court has no problem in accepting that Mr. Castonguay and his ancestors carried out many of the activities that customary for Aboriginals in regards to hunting etc. However, again, Mr.

Castonguay was unable to prove the establishment of a Métis community which he or even his ancestors would have to belong to and thus criteria has not been met. 8) Determination of Whether or Not the Right Was Extinguished [ 64 ] The doctrine of extinguishment does not apply in this case as no initial community has been identified. 9) If There Is a Right, Determination of Whether There Is an Infringement [ 65 ] New Brunswick does not recognize any Métis right to hunt or possess moose meat without a license. No rights have been infringed because Mr.

Castonguay was unable to establish that he belonged to a Métis or aboriginal community and thus benefit from such status. 10) Determination of Whether the Infringement Is Justified [ 66 ] No evidence was presented by the crown as to whether the infringement was justified, for example, on the basis of conservation. Nevertheless, since Mr. Castonguay was not able to establish his Métis or aboriginal status, consequently this point is moot. CONCLUSION [ 67 ] Mr.

Castonguay, in his closing remarks, said he is not asking the Court to recognize him as an aboriginal member of the Grand Falls community, but to acquit him because he is an aboriginal according to the card issued by the Confederation of Aboriginal People of Canada that attests to his status. [ 68 ] Notwithstanding Mr. Castonguay’s mixed blood heritage; he did not present any evidence that he participated in any Métis community in New Brunswick or that a Métis community historically existed at the time of the alleged offence. Consequently, I find that Mr.

Castonguay has not met the any of the test as set out in the Supreme Court of Canada referred above and thus he has failed to prove his Métis status under s. 35 of the Constitution Act , 1982. [ 69 ] Unfortunately for Mr. Castonguay, his evidence of a recent identification as Métis and his way of life cannot be linked to an identifiable historic Métis community and his membership in the Confederation of Aboriginal People of Canada is not a criterion that the Court can rest upon to grant some form of aboriginal status. [ 70 ] The Court can appreciate Mr.

Castonguay’s frustration because he testified that he was of the view that since he has aboriginal ancestry and that he lived by a code of conduct inspired by aboriginal customs and heritage that his aboriginal status should be

recognized in some fashion. Furthermore, he claims he does so to help his community. However, the Court is bound by s. 35 of the Constitution Act , 1982, and its

interpretation found in the Supreme Court of Canada cases cited herein in determining who should granted aboriginal status. [ 71 ] However, Mr. Castonguay testified that he believed that he had the right to be in possession of moose meat particularly because it was already dead when he came into possession of the meat. He adds that he relied on the aboriginal status card that was issued to him by the Confederation of People of Canada which was entered as exhibit. On the back of the card you find Mr. Castonguay’s signature and the following declaration: “Is Aboriginal under

Section 35 of the Canadian Constitution Act , 1982.” [ 72 ] The court raised the issue and listened to arguments in regards to the principles found in the seminal case of R. v. Sault Ste. Marie , (1978), CanLII (S.C.C.) 11. [ 73 ] I conclude that the Fish and Wild Life Act is a strict liability offence and that in R. v. Sault Ste. Marie , supra, the Supreme Court summarizes this category as follows: “In strict liability offences mens rea need not be established but where the defence of reasonable belief in a mistaken set of facts or the defence of reasonable care is available.

Thus while the prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act, the defendant need only establish on the balance of probabilities his defence is reasonable care.” [ 74 ] The defence may be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent. [ 75 ] After reviewing Mr. Castonguay’s evidence and the Crown’s rebuttal evidence it is clear to me that Mr.

Castonguay new or ought to have known that it took more than a card issued by the Confederation of Aboriginal People of Canada to establish his Métis status. In fact, Mr. Castonguay had previously inquired as the validity of the card with Conservation Officer McKaskill and he was advised that only full aboriginal status cards would be acceptable. In that regard, Mr. Castonguay testified that he had applied for his full status aboriginal credentials without success. Furthermore, he would or should have known about s. 35 of the Constitution Act , 1982, and the

interpretation provided by the Supreme Court of Canada cases cited herein. [ 76 ] All of these facts would have or should have been known to him long before the date of the offence which is the subject matter of our case. [ 77 ] Consequently, for the reasons set out above, I find Mr. Castonguay guilty as charged. Dated this 18 th day of September, 2012. _______________________________ Paul E. Duffie Judge of the Provincial Court