2014 QCCA 774, 2014 QCCA 774

Arbour c. Directeur des poursuites criminelles et pénales 2014 QCCA 774 COURT OF APPEAL CANADA PROVINCE OF QUÉBEC REGISTRY OF MONTRÉAL No: 500-10-005611-148 (550-36-000012-128) MINUTES OF THE HEARING DATE: April 4, 2014 THE HONOURABLE MR. JUSTICE MARTIN VAUCLAIR PETITIONER JASON ARBOUR Absent RESPONDENT COUNCEL DIRECTEUR DES POURSUITES CRIMINELLES ET PÉNALES PROCUREUR GÉNÉRAL DU QUÉBEC Mtre Isabelle Beaudoin-Desharnais DIRECTEUR DES POURSUITES CRIMINELLES ET PNALES (absent) Mtre Florence Lavigne-LeBuis Mtre Stéphanie Lisa Roberts DIRECTION GÉNÉRALE DES AFF. JUR. ET LÉGIS. (absents) MOTION FOR LEAVE TO APPEAL (291 Code of Penal Procedure)

Clerk: Asma Berrak Court room: RC.18 HEARING Judgment-see page 3. Asma Berrak Clerk JUDGMENT [ 1 ] The governing statutory provision for this motion for leave to appeal is

section 291 of the Code of penal procedure . It requires the Applicant not only to raise a question of law alone, but also to raise one that is serious and justifies that the Court hear the appeal. For example, a question of law based on settled law will usually not qualify. [ 2 ] Some issues identified by the Applicant are not questions of law alone but principally allege errors in the trial judge’s findings of fact. Questions of facts or questions of mixed fact and law cannot be appealed pursuant to

section 291 C.P.P. [ 3 ] The Applicant says he was denied a fair trial because the trial judge refused to grant a Rowbotham motion and, as a result, he was unrepresented. The Superior Court confirmed the trial judge’s decision to dismiss that motion. There is no error of law, and that ground of appeal has no reasonable chance of success. [ 4 ] The question of law raised by the Applicant, and its multiple ramifications, rests on the historical relationship between Canada and its Aboriginal people. Essentially, he seeks protection of his aboriginal rights under

section 35 of the Constitution Act, 1982 . He is not an Indian for purposes of the Indian Act, R.S.C. 1985, c. I-5. Nevertheless, he asserted his aboriginal rights as a defence to the charge of unlawfully hunting a moose, the whole in contravention of

An act respecting the conservation and development of wildlife , CQLR, c C-61.1 , and its regulations. According to him, both judges below erred when they denied him the benefit of those aboriginal rights. [ 5 ] The Supreme Court of Canada has already considered these questions and the analytical framework applicable to determine if one may avail himself of those rights [1] . The trial judge generously applied those guidelines but rejected the Applicant’s contention he could rely on aboriginal rights for his defence.

The Superior Court, sitting on appeal, agreed. [ 6 ] Nonetheless, the Applicant submits that his situation is unique and the Powley test developed by the Supreme Court does not offer a just and complete analysis. The trial judge accepted that his ancestors were living in the Township of Hull and as a result, acknowledged the existence of the historic rights-bearing community. The trial judge, however, concluded to an absence of continuous use of the area by his community and hence, to an absence of a contemporary rights-bearing community.

According to the Applicant, Canada has historically failed in its duty to relocate the disbanded Indians from his community and therefore, it cannot invoke its own fault to deny him his aboriginal rights. Consequently, he says, the Powley test is inadequate. [ 7 ] Notwithstanding the able argument presented by the Applicant, I decide that the issues raised here fall squarely within the Supreme Court’s teachings in R. v. Powley . Therefore, having reviewed the file and heard the parties, I arrive at the conclusion that this motion does not meet the criteria of

section 291 C.p.p. Appellant's case was dealt with in accordance with the law. [ 8 ] FOR THESES REASONS , the motion for leave to appeal is DISMISSED , without costs. MARTIN VAUCLAIR, J.A.