R. v. Eymard Chiasson, 2012 NBPC 14

R. v. Eymard Chiasson , 2012 NBPC 14 PROVINCE OF NEW BRUNSWICK File: 04330211 PROVINCIAL COURT HER MAJESTY THE QUEEN - v - EYMARD CHIASSON Decision delivered by the Honourable Ronald LeBlanc, judge of the Provincial Court, at Bathurst, New Brunswick, on September 6, 2012. Counsel: Georges Chiasson, Q.C., for the Crown Terrence P. Lenihan, for the accused [TRANSLATION] 1 . Mr. Eymard Chiasson is charged with having hunted moose by means of a snare and bear by means of a trap on October 21, 2011, at Allardville, New Brunswick, contrary to s. 32(1) (

c) of the New Brunswick Fish and Wildlife Act . He does not dispute these allegations. He admits he was hunting moose and bear with snares. However, he maintains that he has the right to do so by reason of his aboriginal status. He states that he is of Mi’kmaq descent and a member of the Mi’kmaq First Nation. He bases his entire defense on the premise that on the date in question, he was exercising his aboriginal right as well as a treaty right, specifically a right granted by the Treaty of 1779. 2 . Since Mr.

Chiasson admits all of the essential elements of each of the two offences, I will not review the evidence produced regarding the offences. It is enough to say that the facts presented to the Court at trial would suffice, absent a defence based on s. 35(1) of the Constitution Act, 1982 , to find him guilty of the offences. 3 . The sole issue to be determined is whether Mr. Chiasson may benefit from s. 35(1) of the Constitution Act, 1982 , which provides as follows:

35(1) The existing aboriginal and treaty rights of the aboriginal people of Canada are hereby recognized and affirmed. 4. At paragraphs 12 and 13 of Mitchell v. M.N.R., 2001 SCC 33 , [2001] 1 S.C.R. 911, McLachlin, Chief Justice of theSupreme Court of Canada, summarized as follows the test for establishing an aboriginal right: […] Since s. 35(1) is aimed at reconciling the prior occupation of North America by aboriginal societies with the Crown’s assertion ofsovereignty, the test for establishing an aboriginal right focuses on identifying the integral, defining features of those societies.

Strippedto essentials, an aboriginal claimant must prove a modern practice, tradition or custom that has a reasonable degree of continuity with thepractices, traditions or customs that existed prior to contact. The practice, custom or tradition must have been “integral to the distinctiveculture” of the aboriginal peoples, in the sense that it distinguished or characterized their traditional culture and lay at the core of thepeoples’ identity. It must be a “defining feature” of the aboriginal society, such that the culture would be “fundamentally altered” withoutit.

It must be a feature of “central significance” to the peoples’ culture, one that “truly made the society what it was” (Van der Peet,supra, at paras. 54-59 (emphasis in original)). This excludes practices, traditions and customs that are only marginal or incidental to theaboriginal society’s cultural identity, and emphasizes practices, traditions and customs that are vital to the life, culture and identity of theaboriginal society in question.

Once an aboriginal right is established, the issue is whether the act which gave rise to the case at bar is an expression of that right.Aboriginal rights are not frozen in their pre-contact form: ancestral rights may find modern expression. The question is whether theimpugned act represents the modern exercise of an ancestral practice, custom or tradition. 5. Before we examine the issue of whether or not the existence of an aboriginal right has been established, the defendant must firstprove that he is exercising this right as an aboriginal.

If he is not an aboriginal, the recognition of an aboriginal right is of no use to him. 6. Therefore, the Court must determine which criteria to apply in order to establish whether Mr. Chiasson is an aboriginal within themeaning of s. 35(2) of the Constitution Act, 1982, which reads as follows: 35(2) In this Act, “aboriginal people of Canada” includes the Indian, Inuit and Métis peoples of Canada. 7. The defense argues that Mr. Chiasson is an Indian. In addition, counsel for the defendant has clearly and unequivocally deniedand refuted that Mr. Chiasson is a Métis.

He insists that the Court should only examine the issue of whether he is an “Indian”. In hisopinion, he cannot meet the test set out in R. v. Powley, 2003 SCC 43 , [2003] S.C.J. No. 43 (S.C.C.). He bases his argument forthe recognition of the status of Indian mainly on R. v. Lavigne, 2005 NBPC 8 , 283 N.B.R. (2d) 298, a decision by Arsenault,Judge of the New Brunswick Provincial Court, dated January 28, 2005. This decision was confirmed on appeal by McIntyre, Justice ofthe Court of Queen’s Bench, in R. v. Lavigne (G.), Jr. (2007), 2007 NBQB 171 , 319 N.B.R. (2d) 261. 8.

It must be noted that jurisprudence regarding the recognition of aboriginal rights has evolved since January 2005. McIntyre, J.referred to this fact in paragraph 39 of his reasons in Lavigne. It is not enough to establish “a sufficient and substantial connection with atribe”, the test set out in New Brunswick by Clendening, J. in R. v. Fowler, [1993] N.B.J. No. 85. McIntyre, J. set out the three criteria ofIndian identity: self-identification, ancestral connection and community acceptance. These are now essential indicia of Indian identityfor the purpose of claiming rights as an Indian under s. 35.

To establish this identity, a case-by-case approach is mandated, taking intoconsideration the value of community self-definition and the need for this process to be objectively verifiable. 9. Further, the New Brunswick Court of Appeal stated the following at paragraphs 9 and 14 of R. v. Hopper, 2008 NBCA 42: 9 In R. v. Van der Peet, (SCC), [1996] 2 S.C.R. 507, [1996] S.C.J. No. 77 (QL) and R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207, [2003] S.C.J. No. 43 (QL), […] the Supreme Court set out ten factors to be considered in determiningentitlement to a s. 35 exemption from the application of a general law.

Although Mrs. Van der Peet was a status Indian and the Powleyswere Métis, the Powley test has been adopted in New Brunswick in order to determine aboriginal status for non-status Indians, such asthat claimed by Mr. Hopper. The accused in R. v. Acker (2004), 281 N.B.R. (2d) 275, [2004] N.B.J. No. 525 (QL), 2004 NBPC 24, andR. v. Lavigne (2007), 319 N.B.R. (2d) 261, [2007] N.B.J. No. 169 (QL), 2007 NBQB 171, both considered themselves to be non-statusIndians to whom a treaty right had been vested. They each claimed a s. 35(1) treaty exemption from the application of the Fish andWildlife Act.

In each case, the court applied the Powley test to determine aboriginal status for non-status Indians. I agree this is theappropriate approach when dealing with such claims. It was also the approach adopted by this Court in response to claims of Métis statusin R. v. Castonguay (R.) et al. (2006), 298 N.B.R. (2d) 31, [2006] N.B.J. No. 183 (QL), 2006 NBCA 43. […]

14 Powley sets out three broad factors as indicia of Métis identity for purposes of claiming Métis rights. As was done in Acker and Lavigne , I would adopt those same three indicia for the purposes of determining aboriginal status for a non-status Indian: (1) self- identification, (2) ancestral connection, and (3) community acceptance. 10 . Therefore, in order to prove a non-status Indian identity in New Brunswick, a person must necessarily establish on a preponderance of evidence that these three criteria have been met. They must all have been met for the purpose of claiming a right under s. 35. 11 .

The defense only called two witnesses: Donald J. Morrison and the defendant. 12 . According to Mr. Morrison, a genealogy expert who researched the defendant’s family tree, the defendant’s closest aboriginal ancestor is Michel Larocque Jr., four generations removed. He was born September 29, 1835, and died September 15, 1911. This is the defendant’s maternal line. Michel Larocque Jr.’s father, Michel Larocque Sr., was the son of Jean Larocque, a Mi’kmaq, and Brigitte Larocque – Native. In the course of his research, Mr.

Morrison discovered documents such as baptism certificates, marriage certificates and census records where Jean and Brigitte Larocque were identified as “sauvage” (native), “Micmac” or “indien” (Indian). This is the reason why Mr. Morrison concluded that Michel Larocque Jr. was indeed an aboriginal. It must be noted that Michel Larocque Jr., son of Michel Larocque Sr., is not identified in any document as being an aboriginal, but since his father was identified as such, Mr. Morrison concluded that the son was as well. 13 .

The defendant’s closest aboriginal ancestor on his father’s side, seven generations removed, was Michel Haché Gallant, who was born circa 1660 and died April 10, 1737. 14 . When he researched the family tree, Mr. Morrison found a grand total of 63 aboriginal lineage on both sides of the family, leading to the defendant. 15 . Therefore, I am satisfied that Michel Larocque Jr., who was the son of two aboriginals, was the [great]-great-grandfather of the defendant, Eymard Chiasson.

This same Michel Larocque Jr. was the father of Marie-Béatrice Larocque, who gave birth to a daughter Marie-Elisa Gauvin, whose daughter Eugénie Gionet was the defendant’s mother. 16 . I will now deal with the evidence of the defendant Eymard Chiasson. He was born February 25, 1939, in Allardville, New Brunswick, and has lived there all his life. He comes from a large family of 6 brothers and 3 sisters. He has 8 children, and at the time of the trial, he was 73. He worked as an ironworker, then as a boilermaker, until an accident, in 1980, forced him to stop working. He used to travel a lot for his work. 17 .

He owns 300 acres of land in Allardville. On this land, he hunts moose and bear. He traps 1 to 3 moose a year. He does it to feed himself and his family. He has never sold meat from the animals he hunts. With regard to bears, he only traps them to kill them. He says bears eat moose calves and females and he kills them to prevent them from eating the moose. He is only interested in bears to kill them so they won’t eat moose calves and females. He does not like bears. 18 . He has been hunting and fishing since his youth, especially hunting. His mother, rather than his father, got him interested in hunting.

His father was a carpentry contractor and was often away from home because of his work. His father never mentioned being an aboriginal. He simply never talked about it. In addition, the defendant never mentioned to his colleagues at work that he is an aboriginal. 19 . His earliest memory regarding aboriginals is an admonition by his mother when he was a child. Her mother said, “Don’t tell anyone you’re an Indian, you’ll get mistreated”. That is how he learned that there was Indian blood in his family. They were not supposed to talk about it, it had to be kept a secret.

It is only once he was an adult that he found proof of his aboriginal connection. 20 . Sometime before 1962, he sent an application to Fredericton to obtain a Status Indian card. He put an end to his efforts in 1962 when the program was cancelled. He was about 23 at that time. Since then, he has belonged to an Aboriginals assembly established in

Bathurst. This assembly later split up and a

chapter was created in Allardville, where the defendant lives. Mr. Chiasson says that he doesnot often take

part in these assemblies which meet once or twice a year. One of his brothers attends the assembly meetings in Bathurst.He did not specify the purpose and object of the assemblies, and only said that members of the New Brunswick Aboriginal PeoplesCouncil have the right to speak at the meetings. He did not specify when he became a member of these assemblies, but he stated thatseveral members of his family are members, although he did not name them. 21. A copy of his New Brunswick Aboriginal Peoples Council membership card, marked as “Exhibit D-5”, was produced intoevidence. It says that Mr.

Chiasson was approved for membership in 2006. The card was signed by Carol LaBillois Slocum, V.C. Noevidence was adduced regarding Mrs. LaBillois Slocum’s authority to sign the card for the Association. The card certifies that EymardChiasson “has met full membership requirements for the N.B.A.P.C. and is of the following ancestry: Mi’kmaq” and bears his picture.The card number is 840. The Crown accepts that the card is valid, but is contesting the accuracy of its content. 22. Mrs. LaBillois Slocum did not testify regarding the membership criteria of the Council. However, according to Mr.

Chiasson,there were three criteria: (1) the person must be at least 16 years of age; (2) have resided in New Brunswick for at least 6 months; and (3) have an aboriginal ancestor who was living on July 1st, 1867, the date on which Confederation was proclaimed. 23. In Mr. Chiasson’s opinion, this card is very important. It gives him the right to hunt without a licence in New Brunswick. He saysthe card allows him to hunt because he has aboriginal connections to back him up, that he needed the “right papers” to get it, and that notevery applicant gets this card.

He stressed, however, that he has a right to hunt because he is an aboriginal, and not just because he has aCouncil membership card. 24. With regard to evidence of a connection to an aboriginal community, Mr. Chiasson says that he attends pow wows two or threetimes a year. He has attended pow wows in Pointe-à-la-Croix, Pabineau, Newcastle and Neguac. He acknowledges that these pow wowsare open to the public and free of charge. He believes that everyone in his area recognize him as an aboriginal. 25.

This summarizes the defendant’s testimony regarding his connections and beliefs on the subject of his aboriginal identity. I mustdecide whether I am satisfied, on the evidence as a whole, that Mr. Chiasson is an aboriginal within the meaning of s. 35(2) of theConstitution Act, 1982, and this analysis must rest on the requirements of self-identification, ancestral connection and communityacceptance. 26. In my opinion, the evidence with regard to the three criteria is deficient, weak and insufficient.

In dealing with s. 35(2) of theConstitution Act, 1982, we address the recognition of a special constitutional protection for certain members of Canadian society. TheCrown has a fiduciary obligation to aboriginal peoples with the result that in dealings between the government and aboriginals, thehonour of the Crown is at stake. The Constitution requires that the substantial rights which fall within the provision apply to theaboriginals who lived on the land in distinctive societies, with their own practices, traditions and cultures.

The aboriginal rightsrecognized and affirmed by s. 35(1) must be directed towards the reconciliation of the pre-existence of aboriginal societies with thesovereignty of the Crown. For the foregoing reasons, I am of the opinion that courts must be careful and conscientious when dealing withclaims of Indian status. 27. In my view, Mr. Eymard Chiasson is not an Indian within the meaning of s. 35 of the Act. He has to go back at least fivegenerations before finding an obvious Indian ancestry. He can produce no evidence that family has since then celebrated Indian life andculture.

His mother insisted that he not mention it when he was a child. His father categorically refused to talk about it. Therefore, thedefendant’s family did not practice an aboriginal culture. It is true that his family tree shows aboriginal ancestry; however, mereancestral lineage must not bring about a recognition of individual aboriginal rights. 28. Mr. Chiasson bases his application in a large part on his membership in the New Brunswick Aboriginal Peoples Council. I willreiterate the comments I made at paragraph 68 of R. v. Acker, 2004 NBPC 24 , [2004] N.B.J.

No. 525, which I consider as quiteapplicable in this case: 68 As can be readily ascertained, the membership requirements to the New Brunswick Aboriginal Peoples’ Council are rather liberaland tolerant. Besides residence and age, membership is based exclusively on the existence of an aboriginal heritage existing in 1867 [...]Interestingly, based on the membership criteria presently in existence, provided the first two are met, the defendant’s descendants willalways qualify for membership in the Council. Twenty generations from now, Mr.

Acker’s descendants will still have an Indian ancestorwho was known or alive in 1867 and will therefore qualify as an off-reserve Indian according to the current membership criteria for theNew Brunswick Aboriginal Peoples’ Council. Surely the recognition of constitutional protection for rights accorded specifically to theaboriginal peoples of Canada, in recognition of their distinctiveness and out of respect for their prior occupation of this country, cannotdepend entirely upon such a frail platform for establishing community acceptance.

29 . Further, Mr. Chiasson cannot in any way meet the third criteria of community acceptance. I quote paragraph 33 of Powley , supra : 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 Metis community’s identity and distinguish it from other groups.

This is what the community membership criterion is all about. Other indicia of community acceptance might include evidence of participation in community activities and testimony from other members about the claimant’s connection to the community and its culture. The range of acceptable forms of evidence does not attenuate the need for an objective demonstration of a solid bond of past and present mutual identification and recognition of common belonging between the claimant and other members of the rights-bearing community. 30 .

In the instant case, besides occasional attendance at pow wows, which are activities open to the public, Mr. Chiasson did not produce any evidence in support of acceptance by the Indian community. He cannot meet this criterion by asserting that the members of the Allardville community recognize him as an Indian. The Allardville community is not an aboriginal community. I did not hear any evidence that Mr.

Chiasson is participating or has participated in the past in the activities of an aboriginal community whose shared culture distinguishes it from other groups, and that as a result of his participation, this community has recognized him as an aboriginal. 31 . The mere fact of identifying oneself as an Indian is not legally sufficient for recognizing a status as venerable and honourable as the status granted to Indians in our society. 32 . Although no evidence was adduced regarding the Treaty of 1779, counsel for the defense nonetheless produced the document itself as evidence because of its historical importance.

I cannot take judicial notice of its historical importance. I cannot assume either that the agreement concluded with the Mi’kmaqs “residing between Cape Tormentine and the Bay de Chaleurs” applied to the aboriginals living in the Allardville or Pabineau areas and I cannot find that Mr. Chiasson, who is not a Mi’kmaq, had an ancestor who signed the treaty on behalf of the Mi’kmaqs living at the time in the area in question. The treaty is of no value given the lack of evidence regarding it. 33 . Since Mr.

Chiasson did not establish that he has Indian status, I find him guilty of both offences, the Crown having proven his guilt beyond a reasonable doubt. Signed at Bathurst on September 6, 2012. Ronald LeBlanc Judge of the Provincial Court