R. v. Paul, 2018 NSCA 70

Nova Scotia Court of Appeal Citation: R. v. Paul, 2018 NSCA 70 Date: 20180828 Docket: CAC 451531 Registry: Halifax Between: Aaron Paul and Charles Francis Appellants v. Her Majesty the Queen Respondent Judge: The Honourable Justice Joel E. FichaudAppeal Heard: May 10, 2018, in Halifax, Nova ScotiaSubject: Aboriginal rights – Constitution Act, 1982, s. 35(1) – Wildlife Act, R.S.N.S. 1989, c. 504 – hunting atnight with a lightSummary: Messrs. Paul and Francis are aboriginal members of the Eskasoni First Nation. They were chargedwith hunting at night with the aid of a light contrary to s. 68 of the Wildlife Act.

They acknowledgedthat they had used their vehicle’s headlights to aid their hunting for moose in the Cape BretonHighlands. Their defence was that they were exercising their aboriginal right to hunt for food, a rightthat is affirmed by s. 35(1) of the Constitution Act, 1982. The trial judge held that, under the principles of R. v. Sparrow, (SCC), [1990] 1S.C.R. 1075, they had an aboriginal right to hunt for food under s. 35(1), but that right was notinfringed by s. 68 and, alternatively, any infringement would be justified for safety reasons. The trialjudge convicted Messrs. Paul and Francis of violating s. 68.

The

Summary Conviction Appeal Court dismissed their appeal. Messrs. Paul and Francis appealed to the Court of Appeal.Issues: Did the SCAC err by affirming the trial judge’s rulings that: (1) characterized the aboriginal right, andcited evidence of historical practice to analyze the characterization; (2) there was no prima facieinfringement of their aboriginal right, and that R. v. Bernard, 2002 NSCA 5, leave to appeal refused[2002] S.C.C.A. No. 123, remained good law; (3) any infringement would be justified; and (4) theexpert evidence of historical practice was admissible?

Result: The Court of Appeal dismissed the appeal.

(1) The SCAC and trial judge had not erred in characterizing the aboriginal right as a right to hunt for food. Messrs. Paul and Francis had submitted that the historical practice of hunting with a torch had evolved into use of vehicle headlights. The trial judge found that the submission was inconsistent with the evidence. The trial judge was entitled to consider historical evidence to address the issue. The evidence reasonably supported the trial judge’s finding. The SCAC made no error in affirming the trial judge’s conclusions.

(2) R. v. Bernard has not been overruled. The trial judge and SCAC did not err by ruling that there was no prima facie infringement. The evidence reasonably supported the trial judge’s finding that night hunting in the Cape Breton Highlands posed a significant safety risk.

Section 68 , whose purposes included the promotion of safety, was a reasonable limitation on the appellants’ aboriginal right. The trial judge’s findings that s. 68 imposed no undue hardship and did not interfere with a preferred practice were reasonably supported by the evidence. The SCAC made no error in affirming the trial judge’s conclusions.

(3) The trial judge, upheld by the SCAC, found that the evidence established the conditions for justification of an infringement. The evidence reasonably supported those findings.

(4) The expert historical evidence admitted by the trial judge was admissible. The historical evidence was relevant to the “logical evolution” of the former practice and to the assessment of whether the current practice is a preferred means of hunting in the aboriginal community. The limitation imposed no undue hardship This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 42 pages. Nova Scotia Court of Appeal Citation: R. v.

Paul , 2018 NSCA 70 Date: 20180828 Docket: CAC 451531 Registry: Halifax Between: Aaron Paul and Charles Francis Appellants v. Her Majesty the Queen Respondent Judges: Fichaud, Bryson and Van den Eynden, JJ.A. Appeal Heard: May 10, 2018, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Fichaud J.A, Bryson and Van den Eynden JJ.A, concurring Counsel: Douglas E. Brown for the appellants Timothy O’Leary for the respondent

Reasons for judgment: [1] Messrs. Aaron Paul and Charles Francis are Mi’kmaq members of the Eskasoni First Nation. They have a constitutionallyaffirmed aboriginal right to hunt for food. May they hunt at night using a light despite the prohibition of that activity by Nova Scotia’sWildlife Act? Background [2] On the evening of September 5, 2006, Messrs. Paul and Francis made their way to a gravel pit near Cheticamp in the CapeBreton Highlands. They had hunted in the area before. They drove in, unloaded their truck, made a fire and looked for moose. Mr.

Paulsaid they used their truck headlights to sweep the open areas “to see if I can see eyes”. The trial judge explained what happened next(2013 NSPC 75): [4] … After driving around, they pulled into a gravel pit and Mr. Paul thought he saw something, but not being sure what it was, theykept going. Shortly thereafter they returned to the gravel pit where he [Mr. Paul] “seen the eyes”. Mr. Francis got out of the truck andabout three or four seconds later took a shot at what he thought was a moose. In fact, it was a decoy mechanical “moose” set up byofficers of the Department of Natural Resources.

Those officers immediately proceeded to converge on the two young men with lightsflashing, sirens blaring and with guns drawn. The Natural Resources officers had hidden themselves behind piles of gravel. The twoyoung men were immediately arrested. Their rifles were seized – identical 300 Winchester Magnum rifles with tripods. … [6] In the Agreed Statement of Facts filed before this Court there was an acknowledgement that, on the date of the offence, Mr. Pauland Mr. Francis: … - at the time and place of the event, were hunting moose with the assistance of the “high” beams of a truck - and that Mr.

Francis “shot” the decoy thinking it was a real moose. [3] Messrs.

Paul and Francis were charged with an offence under s. 68 of the Wildlife Act, R.S.N.S. 1989, c. 504: 68 Except as provided in this Act or the regulations, every person is guilty of an offence who takes, hunts or kills or pursues with intentto take, hunt or kill wildlife by means of, or with the assistance of a light or flambeau. [4] The defence was that they were exempt from s. 68 because they were exercising their aboriginal right to hunt for food that isrecognized by s. 35(1) of the Constitution Act, 1982. [5] The trial took 13 days before Judge David Ryan in the Provincial Court.

On August 20, 2013, the judge found Messrs. Pauland Francis guilty of contravening s. 68 (2013 NSPC 75). Each was fined $362.41. Their firearms were returned. Paragraphs 8 and 9 ofthe trial decision chronicled the process from the charges to the trial decision. [6] On October 25, 2013, Messrs. Paul and Francis filed a notice of appeal to the

Summary Conviction Appeal Court (SCAC).The SCAC judge, Justice Patrick Duncan, heard the matter over 6 days. On April 13, 2016, Justice Duncan issued a Decision thatdismissed the appeal (2016 NSSC 99). The SCAC Decision, paras. 4 to 12, set out the chronology of the

summary conviction appeal. [7] The trial and SCAC judges agreed that Messrs. Paul and Francis had an aboriginal right whose features derive from theprinciples established by R. v. Sparrow, (SCC), [1990] 1 S.C.R. 1075. [8] Both judges rejected the defence’s submission that the aboriginal right exempted Messrs.

Paul and Francis from s. 68: • The trial judge found that, based on the evidence, (1) hunting at night with a light is neither a traditional Mi’kmaq practicethat pre-dated contact with the Europeans, nor a preferred method of hunting in the Mi’kmaq community, and (2) night-hunting in thiswell-frequented area of the Cape Breton Highlands was unsafe. Those findings were pivotal to the outcome. The SCAC held that thetrial judge’s findings were reasonable. • The trial judge and SCAC followed this Court’s ruling in R. v. Bernard, 2002 NSCA 5, application for leave to appealdismissed [2002] S.C.C.A. No. 123 (S.C.C.).

Like this case, Bernard involved a charge of night hunting with a light under s. 68 of theWildlife Act. • The trial judge’s conclusions, upheld by the SCAC, were that, under the Sparrow principles:

(1) Messrs. Paul and Francishad a constitutionally protected aboriginal right to hunt for food, but (2) s. 68 was not a prima facie interference with that right and,alternatively, (3) any prima facie interference would be justified for safety reasons. [9] On May 19, 2016, Messrs. Paul and Francis filed a notice of appeal to the Court of Appeal. On May 10, 2018, this Courtheard the appeal and reserved. Issues [10] The notice of appeal lists 18 grounds, a number of which overlap. The appellants’ submissions did not follow each itemized

ground. Rather, the written and oral submissions channeled the grounds into the following: Issue #1: Did the SCAC judge err in law by concluding that the trial judge had properly characterized the appellants’ aboriginal right? Inparticular, did the judges use evidence that was irrelevant to the characterization? Issue #2: Did the SCAC judge err in law by affirming the trial judge’s conclusion that there had been no prima facie infringement of theappellants’ aboriginal right? In particular, did the judges err by following this Court’s decision in Bernard?

Issue #3: Did the SCAC judge err in law by affirming the trial judge’s conclusion that, if there had been a prima facie infringement, theinfringement was justified? Issue #4: Did the SCAC judge err in law by affirming the trial judge’s ruling that the expert evidence presented at trial was admissible? [11] The first three issues follow steps in the Sparrow test. The fourth relates to a pre-trial ruling by the trial judge. Leave to Appeal [12] The appeal is under the Criminal Code, s. 839, which requires leave. In R. v. Pottie, 2013 NSCA 68, paras. 18-21, this Courtapplied R. v.

R.(R.), 2008 ONCA 497, where Doherty J.A. said: 37 In

summary, leave to appeal pursuant to s. 839 should be granted sparingly. There is no single litmus test that can identify all casesin which leave should be granted. There are, however, two key variables – the significance of the legal issues raised to the generaladministration of criminal justice, and the merits of the proposed grounds of appeal. On the one hand, if the issues have significance tothe administration of justice beyond the particular case, then leave to appeal may be granted even if the merits are not particularly strong,though the grounds must at least be arguable.

On the other hand, where the merits appear very strong, leave to appeal may be grantedeven if the issues have no general importance, especially if the convictions in issue are serious and the applicant is facing a significantdeprivation of his or her liberty. [13] Whether s. 68 of the Wildlife Act unjustifiably infringes the appellants’ constitutionally protected aboriginal right is significantto the administration of justice. The appellants’ submissions are arguable. I would grant leave to appeal. Standard of Review [14] Section 839(1) of the Criminal Code restricts an appeal to questions of law alone.

In this case, the issues of law include thestandards that establish and characterize the aboriginal right, assess whether it was infringed and justify any infringement, as well as theprinciples governing the admissibility of the expert evidence. The Court of Appeal applies correctness to determine whether the SCACjudge erred in the statement or application of the standard of review and legal principles that governed the SCAC judge’s analysis of thetrial judge’s decision.

Pottie, paras. 14-17, and authorities there cited. [15] The SCAC’s standard to review the decision of the trial judge is whether the trial judge erred in law or the trial judge’sfindings cannot reasonably be supported by the evidence. The SCAC may not just substitute its view of the facts for that of the trialjudge. The SCAC may re-weigh the evidence at trial, but only to determine whether the evidence reasonably supported the trial judge’sfindings or, as it is sometimes put, whether the finding resulted from a palpable and overriding error – i.e. a clear error that affected theoutcome. R. v.

Van der Peet, (SCC), [1996] 2 S.C.R. 507, para. 81. R. v. Nickerson, 1999 NSCA 168, para. 6. Pottie,para. 16. The Sparrow Principles [16] Section 35(1) of the Constitution Act, 1982 says: 35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. [17] This case involves an aboriginal right not founded in a treaty.

At the hearing in this Court, the appellants’ counsel confirmedthat the defence did not ask the trial judge to consider a treaty right. [18] In Sparrow, Chief Justice Dickson and Justice La Forest for the Court outlined the principles that govern aboriginal rightsunder s. 35(1): • An “existing” aboriginal right is one that was “in existence when the Constitution Act, 1982 came into effect”. (para. 23). • The word “existing” does not freeze “the specific manner in which it was regulated before 1982”. “Existing” means“unextinguished”, and contemplates the evolution of rights over time. (paras. 24-27). • “[R]ecognized and affirmed” means the aboriginal right is subject to a “solemn commitment that must be given meaningfulcontent” (para. 60).

In particular, “[t]he words ‘recognition and affirmation’ incorporate the fiduciary relationship referred to earlier andso import some restraint on the exercise of sovereign power” (para. 62). • Section 35(1) is not subject to s. 1 of the Charter. However: 61 In response to the appellant’s submission that s. 35(1) rights are more securely protected than the rights guaranteed by the Charter, itis true that s. 35(1) is not subject to s. 1 of the Charter.

In our opinion, this does not mean that any law or regulation affecting aboriginalrights will automatically be of no force or effect by the operation of s. 52 of the Constitution Act, 1982. Legislation that affects theexercise of aboriginal rights will nonetheless be valid, if it meets the test for justifying an interference with a right recognized andaffirmed under s. 35(1).

Consequently, the “[r]ights that are recognized and affirmed are not absolute” but “demand the justification of any governmentregulation that infringes upon or denies aboriginal rights” (para. 62).

A regulation that affects aboriginal rights “must be enactedaccording to a valid objective”, and “the way in which a legislative objective is to be attained must uphold the honour of the Crown andmust be in keeping with the unique contemporary relationship, grounded in history and policy, between the Crown and Canada’saboriginal peoples” (para. 64). [19] The Chief Justice and Justice La Forest then set out the methodology for the judicial analysis of aboriginal rights. They beganwith the preface: 66 … We wish to emphasize the importance of context and a case-by-case approach to s. 35(1).

Given the generality of the text of theconstitutional provision, and especially in light of the complexities of aboriginal history, society and rights, the contours of a justificatorystandard must be defined in the specific factual context of each case. [20] Then the methodology: 68 … The inquiry with respect to interference begins with a reference to the characteristics or incidents of the right at stake.

Our earlierobservations regarding the scope of the aboriginal right to fish are relevant here. … … 70 To determine whether the fishing rights have been interfered with such as to constitute a prima facie infringement of s. 35(1), certainquestions must be asked. First, is the limitation unreasonable? Second, does the regulation impose undue hardship? Third, does theregulation deny to the holders of the right their preferred means of exercising that right?

The onus of proving a prima facie infringementlies on the individual or group challenging the legislation. … [T]he test involves asking whether either the purpose or the effect of therestriction … unnecessarily infringes the interests protected by the … right. … 71 If a prima facie interference is found, the analysis moves to the issue of justification. This is the test that addresses the question ofwhat constitutes legitimate regulation of a constitutional aboriginal right. The justification analysis would proceed as follows. First, isthere a valid legislative objective?

Here the court would inquire into whether the objective of Parliament in authorizing the department toenact regulations regarding fisheries is valid. The objective of the department in setting out the particular regulations would also bescrutinized. … … 75 If a valid legislative objective is found, the analysis proceeds to the second part of the justification issue. Here, we refer back to theguiding interpretive principle derived from Taylor [R. v. Taylor, (ON CA), 34 O.R. (2d) 360, (C.A.) and Guerin[Guerin v. R., (SCC), [1984] 2 S.C.R. 335], supra.

That is, the honour of the Crown is at stake in dealings withaboriginal peoples. The special trust relationship and the responsibility of the government vis-à-vis aboriginals must be the firstconsideration in determining whether the legislation or action in question can be justified. … 82 Within the analysis of justification, there are further questions to be addressed, depending on the circumstances of the inquiry.

Theseinclude the questions of whether there has been as little infringement as possible in order to effect the desired result; whether, in asituation of expropriation, fair compensation is available; and, whether the aboriginal group in question has been consulted with respectto the conservation measures being implemented. … [21] Sparrow’s approach remains the test for the appraisal of aboriginal rights under s. 35(1) of the Constitution Act, 1982:Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 , [2014] 2 S.C.R. 257, at para. 150, per McLachlin C.J.C. for the Court. [22] Sparrow’s test has four steps.

First, does an aboriginal right exist and, if so, how is it characterized? Second, has the aboriginalright been extinguished? Third, if it is unextinguished, is there a prima facie infringement of the aboriginal right? Fourth, if there is aprima facie infringement, is there justification for the infringement? R. v. Gladstone, (SCC), [1996] 2 S.C.R. 723, atpara. 20, per Lamer C.J.C. for the majority. [23] On this appeal, issue #1 addresses the first step. The second – extinguishment – does not arise. The third and fourth steps arethe subjects of issues #2 and #3 respectively.

Issue #1 – Characterization of the Aboriginal Right [24] I will start with the rulings that have refined Sparrow’s first step – the establishment and characterization of the claimedaboriginal right. [25] Supreme Court decisions after Sparrow: In Van der Peet, Chief Justice Lamer for the majority wrote: 46 In light of the suggestion of Sparrow, supra, and the purposes underlying s. 35(1), the following test should be used to identifywhether an applicant has established an aboriginal right protected by s. 35(1): in order to be an aboriginal right an activity must be anelement of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right.

The Chief Justice (paras. 48-75) then expanded on the application of that test. His comments included ten directions: Courts must take into account the perspective of aboriginal peoples themselves 49 … In Sparrow, supra, Dickson C.J. and La Forest J. held at p. 1112 that it is “crucial to be sensitive to the aboriginal perspectiveitself on the meaning of the rights at stake”. It must also be recognized, however, that that perspective must be framed in terms

cognizable to the Canadian legal and constitutional structure. … … Courts must identify precisely the nature of the claim being made in determining whether an aboriginal claimant has demonstrated the existence of an aboriginal right 51 … [I]n order to determine whether a claim meets the test of being integral to the distinctive culture of the aboriginal group claiming the right, the court must first correctly determine what it is that is being claimed.

The correct characterization of the appellant’s claim is of importance because whether or not the evidence supports the appellant’s claim will depend, in significant part, on what, exactly, that evidence is being called to support. … In order to be integral a practice, custom or tradition must be of central significance to the aboriginal society in question 55 To satisfy the integral to a distinctive culture test the aboriginal claimant must do more than demonstrate that a practice, tradition or custom was an aspect of, or took place in, the aboriginal society of which he or she is a part.

The claimant must demonstrate that the practice, tradition or custom was a central and significant part of the society’s distinctive culture.

He or she must demonstrate, in other words, that the practice, tradition or custom was one of the things which made the culture of the society distinctive – that it was one of the things that truly made the society what it was . [Chief Justice Lamer’s italics] … The practices, customs and traditions which constitute aboriginal rights are those which have continuity with the traditions, customs and practices that existed prior to contact 60 The time period that a court should consider in identifying whether the right claimed meets the standard of being integral to the aboriginal community claiming the right is the period prior to contact between aboriginal and European societies. … … 62 That this is the relevant time should not suggest, however, that the aboriginal group claiming the right must accomplish the next to impossible task of producing conclusive evidence from pre-contact times about the practices, customs and traditions of their community. … 63 … It is precisely those present practices, customs and traditions which can be identified as having continuity with the practices, customs and traditions that existed prior to contact that will be the basis for the identification and definition of aboriginal rights under s. 35(1).

Where an aboriginal community can demonstrate that a particular practice, custom or tradition is integral to its distinctive culture today, and that this practice, custom or tradition has continuity with the practices, customs and traditions of pre-contact times, that community will have demonstrated that the practice, custom or tradition is an aboriginal right for the purposes of s. 35(1) . … 64 The concept of continuity is also the primary means through which the definition and identification of aboriginal rights will be consistent with the admonition in Sparrow , supra , at p. 1093, that “the phrase ‘existing aboriginal rights’ must be interpreted flexibly so as to permit their evolution over time”.

The concept of continuity is, in other words, the means by which a “frozen rights” approach to s. 35(1) will be avoided. … … Courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating aboriginal claims 68 … The courts must not undervalue the evidence presented by aboriginal claimants simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law torts case.

Claims to aboriginal rights must be adjudicated on a specific rather than general basis 69 … Aboriginal rights are not general and universal; their scope and content must be determined on a case by case basis. The fact that one group of aboriginal people has an aboriginal right to do a particular thing will not be, without something more, sufficient to demonstrate that another aboriginal community has the same aboriginal right. The existence of the right will be specific to each aboriginal community.

For a practice, tradition or custom to constitute an aboriginal right it must be of independent significance to the aboriginal culture in which it exists 70 … The practice, custom or tradition cannot exist simply as an incident to another practice, custom or tradition but must rather be itself of integral significance to the aboriginal society.

Where two customs exist, but one is merely incidental to the other, the custom which is integral to the aboriginal community in question will qualify as an aboriginal right, but the custom that is merely incidental will not. … The integral to a distinctive culture test requires that a practice, custom or tradition be distinctive; it does not require that the practice, custom or tradition be distinct 71 … [A] culture that claims that a practice, custom or tradition is distinctive – “distinguishing characteristic” – makes a claim that is

not relative; the claim is rather one about the culture’s own practices, customs or traditions considered apart from the practices, customsor traditions of any other culture.

It is a claim that this tradition or custom makes the culture what it is, not that the practice, custom ortradition is different from the practices, customs or traditions of another culture. … [Chief Justice Lamer’s italics] The influence of European culture will only be relevant to the inquiry if it is demonstrated that the practice, custom or tradition is onlyintegral because of that influence 73 … If the practice, custom or tradition was an integral part of the aboriginal community’s culture prior to contact with the Europeans,the fact that that practice, custom or tradition continued after the arrival of Europeans, and adapted in response to their arrival, is notrelevant to determination of the claim; European arrival and influence cannot be used to deprive an aboriginal group of an otherwise validclaim to an aboriginal right.

On the other hand, where the practice, custom or tradition arose solely as a response to European influencesthen that practice, custom or tradition will not meet the standard for recognition of an aboriginal right. Courts must take into account both the relationship of aboriginal peoples to the land and the distinctive societies and cultures ofaboriginal peoples 74 … Aboriginal rights arise from the prior occupation of land, but they also arise from the prior social organization and distinctivecultures of aboriginal peoples on that land.

In considering whether a claim to an aboriginal right has been made out, courts must look atboth the relationship of an aboriginal claimant to the land and at the practices, customs and traditions arising from the claimant’sdistinctive culture and society. … [Chief Justice Lamer’s italics] [26] In Gladstone, Lamer C.J.C. summarized Van der Peet’s test: 23 The first step in applying the Van der Peet test is the determination of the precise nature of the claim being made, taking intoaccount such factors as the nature of the action said to have been taken pursuant to an aboriginal right, the government regulation arguedto infringe the right, and the tradition, custom or practice relied upon to establish the right. … … 25 The second step in the Van der Peet test requires the Court to determine whether the practice, tradition or custom claimed to be anaboriginal right was, prior to contact with Europeans, an integral part of the distinctive aboriginal society of the particular aboriginalpeople in question. … … 28 In Van der Peet, at para. 61, this Court held that a claimant to an aboriginal right need not provide direct evidence of pre-contactactivities to support his or her claim, but need only provide evidence which is “directed at demonstrating which aspects of the aboriginalcommunity and society have their origins pre-contact.

It is those practices, traditions and customs that can be rooted in the pre-contactsocieties of the aboriginal community in question that will constitute aboriginal rights”. In Van der Peet this was described as therequirement of “continuity” – the requirement that a practice, tradition or custom which is integral to the aboriginal community now beshown to have continuity with the practices, traditions or customs which existed prior to contact. … [27] In Van der Peet, para. 64, Chief Justice Lamer explained that aboriginal rights evolve over time. In R. v.

Marshall; R. v.Bernard, 2005 SCC 43 , [2005] 2 S.C.R. 220, Chief Justice McLachlin expanded on the “logical evolution” test: 25 Of course, treaty rights are not frozen in time. Modern peoples do traditional things in modern ways. The question is whether themodern trading activity in question represents a logical evolution from the traditional trading activity at the time the treaty was made.Marshall 2 [R. v. Marshall, (SCC), [1999] 3 S.C.R. 533], at para. 20. Logical evolution means the same sort ofactivity, carried on in the modern economy by modern means.

This prevents aboriginal rights from being unfairly confined simply bychanges in the economy and technology. But the activity must be essentially the same. “While treaty rights are capable of evolutionwithin limits, … their subject matter … cannot be wholly transformed. (Marshall 2, at para. 19) [28] Similarly, in Lax Kw’alaams Indian Band v.

Canada (Attorney General), 2011 SCC 56 , [2011] 3 S.C.R. 535, JusticeBinnie for the Court discussed the ambit of “logical evolution”: 7 … The legal requirement for continuity between ancestral practices, customs and traditions and the modern claimed Aboriginal rightincorporates, of course, an allowance for logical evolution within limits. This case, in part, is about where such limits should be drawn. 8 The Lax Kw’alaams live in the twenty-first century, not the eighteenth, and are entitled to the benefits (as well as the burdens) ofchanging times.

However, allowance for natural evolution does not justify the award of a quantitatively and qualitatively different right.… [29] In R. v.

Sappier, 2006 SCC 54 , [2006] 2 S.C.R. 686, Bastarache J. explained the significance of evidence on pre-contact practice to “logical evolution”: 22 … In an oft-quoted passage, Lamer C.J. acknowledged in Van der Peet, at para. 30, that, “the doctrine of aboriginal rights exists, andis recognized and affirmed by s. 35(1), because of one simple fact: when Europeans arrived in North America, aboriginal peoples werealready here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries” (emphasisdeleted [by Bastarache J.]).

The goal for courts is, therefore, to determine how the claimed right relates to the pre-contact culture or wayof life of an aboriginal society. This has been achieved by requiring aboriginal rights claimants to found their claim on a pre-contactpractice which was integral to the distinctive culture of the particular aboriginal community. It is critically important that the Court beable to identify a practice that helps to define the distinctive way of life of the community as an aboriginal community [Bastarache J.’sitalics].

The importance of leading evidence about the pre-contact practice upon which the claimed right is based should not beunderstated. In the absence of such evidence, courts will find it difficult to relate the claimed right to the pre-contact way of life of the

specific aboriginal people, so as to trigger s. 35 protection. … 48 Although the nature of the practice which founds the aboriginal right claim must be considered in the context of the pre-contactdistinctive culture of the particular aboriginal community, the nature of the right must be determined in light of present daycircumstances. As McLachlin C.J. explained in R. v. Bernard, [2005] 2 S.C.R. 220, 2005 SCC 43 (S.C.C.), at para. 25, “[l]ogicalevolution means the same sort of activity, carried on in the modern economy by modern means”.

It is the practice, along with itsassociated uses, which must be allowed to evolve. … [Justice Bastarache’s italics] [30] Nova Scotia authority – Bernard: The leading Nova Scotia decision is Bernard, which, like the present case, involved acharge of hunting at night with a light. This Court held that s. 68 of the Wildlife Act withstood a challenge under s. 35(1) of theConstitution Act, 1982.

Justice Roscoe tabulated Sparrow’s four steps: [21] … In Sparrow, commencing at p. 1094, the court developed the test for scrutinizing legislation to ensure appropriate affirmationand recognition of aboriginal rights in accordance with s. 35(1). The test can be conveniently divided into four stages, each involving anumber of factors to consider: 1. Was the claimant acting pursuant to an aboriginal right? a. How should the aboriginal right be characterized? b. What is the contemporary manner in which it may be exercised? 2. Was that aboriginal right extinguished before the enactment of s. 35? a.

Is the intention of the Legislature to extinguish the aboriginal right clear and plain? 3. Does the legislation interfere with an existing aboriginal right? a. Is the limitation on the exercise of the aboriginal right reasonable? b. Does the regulation impose undue hardship? c. Does the legislation deny a preferred means of exercising an aboriginal right? 4. If there is prima facie interference, the investigation addresses whether there is justification for the infringement, which is determinedby asking: a. Is there a valid legislative objective? b.

If so, has the objective been implemented in a manner consistent with the honour of the Crown in dealing with aboriginal peoples?c. Has there been minimal impairment of the aboriginal right? d. If there has been an expropriation, has there been fair compensation? e. Has there been consultation with the aboriginal people? [22] The person challenging the legislation bears the onus at the first and third stages, that is, that there is an aboriginal right in issue,and that it has been infringed by the impugned legislation. If the Crown claims extinguishment, it bears the onus of proving it.

If theclaimant proves infringement of the right in the third part of the test, at the last stage, the Crown must meet the burden of provingjustification. [31] Justice Roscoe concluded that “the Mi’kmaq people have an aboriginal right to hunt for food in Nova Scotia”, but declined tocharacterize it as an “aboriginal right to hunt at night with a light”: 37 … The question at this first stage is how the right should be characterized: is it simply the right to hunt for food, or is it the right tohunt at night with a light? … Keeping in mind the direction found in Vanderpeet noted above that the right should be general rather thanspecific, it is probably best to accept the trial judge’s characterization with which the respondent and the appellant agree, that the right inissue here is the right to hunt for food.

There was clearly insufficient evidence to establish that night hunting met the Vanderpeet test,that is, that it was integral to the distinctive Mi’kmaq culture. I would agree with and apply the reasoning in Seward [R. v. Seward(1999), 1999 BCCA 163 , 133 C.C.C. (3d) 437 (B.C.C.A.), leave to appeal denied [1999] S.C.C.A.

No. 238] that the respondenthas not established that the method of hunting, that is, with the aid of a light, is an aboriginal right which should receive the protection ofs. 35(1) of the Constitution. [Justice Roscoe’s italics] [32] Justice Roscoe considered the use of a light under Sparrow’s third and fourth steps, prima facie infringement and justification.She concluded that, based on safety considerations, s. 68 of the Wildlife Act was not a prima facie infringement and, if it had been, theinfringement would have been justified (paras. 53 and 54).

I will discuss these points later under Issues #2 and #3. [33] The rulings in this case: In the case of Messrs. Paul and Francis, the trial judge and SCAC reached conclusions similar tothose in Bernard. [34] At the trial, the Crown submitted that the claimed aboriginal right should be characterized as a right “to hunt moose at nightwith the aid of illumination”. Judge Ryan disagreed with the Crown:

[335] The Crown, however, contends (at para. 210 of its Closing Brief) that “the aboriginal right being claimed should be characterized as an exercise of an aboriginal right, to hunt moose at night with the aid of illumination.” The Crown further contends that the characterization of the right as suggested by the Defence “would cast the court’s inquiry at a level of excessive generality”. [336] I disagree with the Crown’s assertion. There is no question that the Mi’kmaq people have an Aboriginal right to hunt for food and ceremonial purposes: [citations omitted].

That right has been recognized and affirmed by the Nova Scotia Court of Appeal in the Bernard decision and even prior to that as noted by the Court in the Bernard decision at para. 37.

Such a recognition has been based upon ample evidence previously presented to the courts including the Court in the case at bar. [ 35 ] Later (para. 357), the trial judge cited the statements from para. 70 of Van der Peet , that the practice must be “independently significant to the aboriginal community”, “cannot exist simply as an incident of another practice”, and “must rather be itself of integral significance to the aboriginal society”.

Judge Ryan said that to characterize the claimed aboriginal right as “to hunt at night with the aid of illumination”, as the Crown had asserted, would “be ‘piggybacking’ and providing constitutional protection to a method or practice of hunting that is not integral to either the Aboriginal community in question or the broader Aboriginal right to hunt for food” (para. 358). [ 36 ] Judge Ryan said he would “anchor my decision in the evidentiary record before me” (para. 359). He thoroughly considered the evidence of the three expert witnesses, Dr. Wicken, called by the defence, and Drs.

Patterson and von Gernet, called by the Crown (paras. 35-215, 369-370), and made the following findings: [371] Based on that evidence [ i.e. of Drs. Wicken, Patterson and von Gernet], I am of the opinion that the most that can be inferred from the evidence is that the Mi’kmaq hunted at night by moonlight. To extend it any farther to include use of a flambeau or torch is not warranted by the evidence and, in that regard, I respectfully disagree with Dr.

Wicken. … [386] … While the evidence shows and I accept that the Mi’kmaq did on occasion hunt for food at night, I am not satisfied the evidence establishes that night hunting with a light was a preferred method of hunting. They were, at the time of contact, primarily a society that lived and survived by products of the sea and rivers though they did hunt when the occasion presented itself.

The evidence does not demonstrate that hunting at night (with a light) was an element of a practice, custom or tradition integral to their distinctive culture which made the culture of the Mi’kmaq society distinctive – i.e. one of the things that truly made the society what it was. It was at most a practice that was only incidental and occasional to the Mi’kmaq Society. Under Issue #2, I will quote the trial judge’s recitation of some of the evidence that supports these findings (below, paras. 96-97). [ 37 ] The trial judge concluded: A.

Are the accused Aboriginal rights holders? [384] The accused are holders of an Aboriginal right to hunt for food and ceremonial purposes. This is not an issue in dispute. B. Was the activity in which the accused were engaged on the night in question an exercise of their Aboriginal right to hunt for food? [385] The accused in the case at bar were hunting by their own admission and as Aboriginal members of the Eskasoni Community they have a right to do so.

However, I am of the opinion that the activity/method of hunting at night with a light or flambeau was not a legitimate exercise of this Aboriginal right to hunt for food and ceremonial purposes. [ 38 ] The SCAC judge declined to overturn the trial judge’s findings and conclusions. Justice Duncan said: [89] The evidence and findings of fact material to Judge Ryan’s determination that hunting at night with a light is not a practice that is integral to the Mi’kmaq culture, was founded in the evidence of Drs. Wicken, von Gernet and Patterson who were qualified to offer opinion evidence. … [92] The trial judge’s

summary of the testimony was thorough and supportable on the evidence. I note, in particular, Dr. Wicken’s description of the manner in which moose were traditionally hunted. See , Decision at paras. 58 and 62; the reasons that Dr. Wicken offered that the practice was “integral”, set out at para. 61; and his admission [as] set out at para. 81 that he was unaware of any references to hunting moose at night with flambeaus. [93] The evidence of Drs. von Gernet and Patterson, was similarly reviewed in detail by the judge and where it differed in material opinions from that of Dr.

Wicken the trial judge preferred that of the Crown’s witnesses. [94] Overall, I am satisfied that the findings made by the trial judge, and which he summarized in paragraphs 363-379 set out above, were reasonable and supported by the evidence. In

summary, the evidence supported the conclusion that moose were hunted for food by the Mi’kmaq of Cape Breton and that they did so on occasion at night, but that there is no evidence it was carried out using a form of illumination.

Based on the trial judge’s findings it cannot be said that the appellants’ use of a light was a modern day evolution from the traditional way in which the Mi’kmaq hunted moose in this locale of Nova Scotia at the time of contact. … [102] The defendant’s position that “hunting at night with a light is a legitimate exercise of the broader Aboriginal right to hunt for food” is not sustainable in law.

In my view, Judge Ryan’s conclusion that the evidence did not support a finding that hunting at night with a light was integral to the distinctive culture of the Mi’kmaq was one that was consistent with the application of the law in other cases

and was correct in law, having regard to the facts as he found them. [103] For the purposes of the infringement analysis the aboriginal right at stake is the “right to hunt for food”. … [39] Analysis of the arguments on this appeal: Messrs. Paul and Francis agree that their aboriginal right is to hunt for food andceremonial purposes. But they submit that the trial judge and SCAC erred in law by using irrelevant historical evidence to narrow thataboriginal right during the characterization step.

Their factum to the Court of Appeal puts it this way: 12. … In the case at bar, historical evidence is irrelevant and unnecessary to such an analysis given the presumed existence of the rightto hunt for food, social and ceremonial purposes in Nova Scotia. … 20. Therefore there is no need to embark on an historical inquiry at all. Hunting for the purpose of food with the aid of a light is a modernexercise.

Again, the search in history for ancient corresponding methods of hunting (the asssitance of a light) that are employedcontemporarily (the assistance of a light) is an application of the “frozen rights” theory. … [40] To assess the appellants’ submission, it is helpful to examine the arguments made to the trial judge. [41] As noted earlier, the Crown’s closing trial brief said “the aboriginal right being claimed should be characterized as an exerciseof an aboriginal right, to hunt moose at night with the aid of illumination”. [42] The Trial Brief of Messrs.

Paul and Francis, on the other hand, said the claim was simply an aboriginal “right to hunt for food”,and the use of a light was a “ ‘logical evolution’ of the pre-contact practice of night-hunting with a light (torch)”:

Summary of Issues Arising from Facts What is the proper characterization of the right at stake in the case at bar? Was the activity the accused were engaged in, that is, huntingat night with the assistance of a light, a legitimate exercise of their broader Aboriginal right to hunt for food? If not, then the accused areoffered no protection under s. 35(1) of the Constitution Act, 1982 and must be convicted. If the answer is affirmative, however, then theinquiry becomes whether or not the application of s. 68 of the Nova Scotia Wildlife Act is a prima facie infringement of their uncontestedAboriginal right to hunt for food. …

Summary of Expert Opinion Evidence Expert opinion evidence adduced by both the Crown and the Defence confirm that night hunting for food (including Moose) was a pre-contact hunting practice of the Mi’kmaq. All three experts also agreed that pre-contact Mi’kmaq used a light (torch) to assist their nighthunting as well. The essential difference between the defence expert opinion (William Wicken) and Crown expert opinion (Dr. StephenPatterson and Dr. Alexander von Gernet) lies in whether the pre-contact Mi’kmaq hunted Moose specifically at night with the assistanceof a light.

On the one hand, the Crown experts stated that there was historical documentary evidence that proved the Mi’kmaq fished and fowled atnight with the assistance of a light.

However, they found no historical documentation that the Mi’kmaq used the assistance of a light tohunt the species of Moose at night prior to European contact. … … The expert for the defence made the inference, given the importance of Moose to the Mi’kmaq, that the Mi’kmaq likely used a light toassist their night hunting of Moose, despite the absence of European accounts of the technique being used specifically and singularlyupon Moose. … Even if the expert defence opinion evidence is disregarded as too far reaching, the idea of a “logical evolution” of the pre-contactpractice of night hunting with a light (torch) would likely extend not only to the fact that bows and arrows evolved to high poweredrifles, and torches evolved to spotlights and headlights of vehicles; but that the species upon which the method was used also evolvedfrom fish and fowl to include Moose and Deer and any other species the Mi’kmaq decide to exploit as “food”. [bolding added] Characterizing the Aboriginal Right at Stake One of the tasks that is asked of this court in this matter is to determine the proper characterization of the Aboriginal right at stake.

TheDefendant’s [sic] submit that the proper characterization is simply the “right to hunt for food”. [43] The Reply Brief of Messrs. Paul and Francis to the trial judge adopted Justice Roscoe’s characterization from Bernard: The Nova Scotia Court of Appeal Correctly Characterized the Claim On characterizing the claim, the Nova Scotia Court of Appeal in R. v. Bernard, 2002 NSCA 5 , [2002] N.S.J.

No. 15, gave thefollowing direction to a similar right hunting case: 37 … Keeping in mind the direction found in Van der Peet noted above that the right should be general rather than specific, it isprobably best to accept the trial judge’s characterization with which the respondent and the appellant agree, that the right in issue here isthe right to hunt for food. [bolding in the Defendants’ Reply Brief] There was clearly insufficient evidence to establish that nighthunting met the Van der Peet test, that is, that it was integral to the distinctive Mi’kmaq culture.

I would agree with and apply thereasoning in Seward that the respondent has not established that the method of hunting, that is, with the aid of a light, is an aboriginalright which should receive the protection of s. 35(1) of the Constitution.

… [44] In my respectful view, the trial judge merely addressed the submissions that were made to him on characterization and logicalevolution, and applied the evidence that was relevant to those submissions. [45] As to characterization: • Messrs. Paul and Francis submitted to the trial judge that the Aboriginal right was “a right to hunt for food” and ceremony,and that the Court of Appeal in Bernard had “correctly characterized the claim”. The Crown proposed a different characterization. • Judge Ryan disagreed with the Crown’s characterization and explained why.

He accepted the characterization of Messrs.Paul and Francis, saying: [384] The accused are holders of an Aboriginal right to hunt for food and ceremonial purposes. … • As proposed by the Rebuttal Brief of Messrs. Paul and Francis, the judge adopted the Nova Scotia Court of Appeal’scharacterization in Bernard, para. 37. [46] The judge made no error in his characterization of the aboriginal right. [47] As to “logical evolution”: • The Trial Brief of Messrs.

Paul and Francis submitted that “a ‘logical evolution’ of the pre-contact practice of night huntingwith a light (torch)” meant “torches evolved to spotlights and headlights of vehicles” and that “the species upon which the method wasused also evolved from fish and fowl to include Moose”. Messrs. Paul and Francis asked Judge Ryan to draw those inferences from theirinterpretation of the historical evidence related by the three experts. • Judge Ryan disagreed with that suggested

interpretation of the evidence and declined to draw the requested inferences. Hefound that historically the Mi’kmaq hunted at night by moonlight, but “[t]o extend it any farther to include use of a flambeau or torch isnot warranted by the evidence” (para. 371). Judge Ryan’s decision identified the historical evidence upon which he relied, and hisfindings are reasonably supported by that evidence (see below, para. 96). • I disagree that the historical evidence was irrelevant.

In Sappier, supra, Bastarache J. emphasized the significance ofevidence of the pre-contact practice. • Judge Ryan weighed the pre-contact evidence that Messrs. Paul and Francis asked him to consider. The issue, posed bytheir written submission, was whether hunting with a light is a “logical evolution” of a “pre-contact practice”. In R. v.

Marshall; R. v.Bernard, in Lax Kw’alaams and in Sappier, the Supreme Court defined “logical evolution” as “the same sort of activity, carried on in themodern economy by modern means”, provided the modern version is not “quantitatively and qualitatively different” than the pre-contactactivity. To similar effect: Mitchell v. Minister of National Revenue, 2001 SCC 33 , [2001] 1 S.C.R. 911, paras. 13 and 29, perMcLachlin C.J.C. for the majority. Consequently, evidence of whether the pre-contact activity was “the same sort” or, on the other hand, “quantitatively andqualitatively different” is relevant.

The judge made no error of law by considering that evidence. [48] The SCAC accepted the trial judge’s characterization of the aboriginal right – i.e. that of Messrs. Paul and Francis – as “theright to hunt for food”. The SCAC correctly determined that the trial judge’s handling of the Defence submission involved no use ofirrelevant evidence, and reflected neither a legal error nor an unreasonable finding from the evidence. [49] I would dismiss the grounds of appeal that represented by this issue.

Issue #2: Prima Facie Infringement [50] In Bernard, paras. 39-53, this Court determined that s. 68 of the Wildlife Act was not a prima facie infringement of theaboriginal right to hunt for food. Justice Roscoe said: [48] Returning then to the three factors that should have been considered at the infringement stage of the analysis, the first involves adetermination of whether the limitation on the aboriginal right is reasonable. It has been established in Seward [R. v. Seward (1999),1999 BCCA 163 , 133 C.C.C. (3d) 437 (B.C.C.A.), leave to appeal denied [1999] S.C.C.A. No. 238] and Badger [R. v.

Badger, (SCC), [1996] 1 S.C.R. 771] that if a provision is proven to be for the purpose of enhancing safety, that it will typicallybe found to be a reasonable limitation. In my view, based on Badger, depending on the nature and extent of the limitation, restrictionsdesigned for the purpose of conservation of the wildlife resource could also be a reasonable limitation. Furthermore, also based onBadger, restrictions for a dual purpose of safety and conservation could also be found to be reasonable.

Justice Roscoe, para. 49, adopted para. 21 from the British Columbia Court of Appeal’s decision in Seward: 21 … The hunter is unable to see anything too much beyond either side of the light beam. A hunter could fail to see moving objectsnearby such as people or animals. A hunter could miss fixed objects such as rock bluffs which could cause a stray bullet to ricochet. Afundamental tenet of hunting is that when the hunter pulls the trigger the hunter should be able to see the target and beyond. This abilityis significantly diminished when hunting at night, even with a light. Justice Roscoe concluded: [52]

Section 68 prohibits a practice which on the preponderance of the evidence and case authorities is inherently unsafe. That itslegislative purpose is at least partially to prohibit unsafe hunting cannot be rationally challenged. In my view, even if conservation of

wildlife was originally the purpose of the section, or if it remains one of its objectives, that does not diminish the significance of itssafety-based objectives and effects. The

section therefore is a reasonable limitation on the aboriginal right to hunt for food. [53] Although the respondent led evidence that it was easier to hunt at night with a light, he has not proven that the Mi’kmaq peoplesgenerally or his band or community specifically would suffer undue hardship if prohibited from night hunting with a light. There was noevidence, for example, that because of a scarcity of deer or other wildlife that it was necessary to travel great distances or spend a longperiod of time to find game, or that it was otherwise unduly burdensome to hunt in the daytime.

Nor has the respondent proven that nighthunting was a preferred means at a community level. Consequently, in my opinion, the limitation on the aboriginal right to hunt for foodcontained in s. 68 of the Wildlife Act is not unconstitutionally infringed. [51] In this case, as in Bernard, the issue is whether s. 68 of the Wildlife Act infringes the aboriginal right to hunt for food. The trialjudge’s findings here are materially the same as the facts in Bernard. If Bernard remains the law, then Justice Roscoe’s decision wouldbe a compelling precedent. [52] Effect of Morris on Bernard: Messrs.

Paul and Francis address Bernard by saying R. v. Morris, 2006 SCC 59 , [2006]2 S.C.R. 915 overruled it. [53] In Morris, Messrs. Morris and Olsen were members of the Tsartlip Indian Band of the Saanich Nation. In 1852, the Governorof the Colony of Vancouver Island, representing the Crown, signed a treaty that the Saanich Nation would be at liberty to fish and hunt“as formerly”. Messrs. Morris and Olsen were charged with several offences including hunting at night with the aid of a light, contrary toss. 27(1)(

d) and (

e) of British Columbia’s Wildlife Act. [54] Justices Deschamps and Abella for the majority held that ss. 27(1)(

d) and (

e) infringed a treaty right that was protected by s.35(1) of the Constitution Act, 1982, and were inapplicable to Messrs.

Morris and Olsen. [55] Justices Deschamps and Abella reasoned as follows. • The issue “entails characterizing the scope of the treaty right claimed by Morris and Olsen and delineating any limits onthat right” (para. 14). • The treaty guaranteed the right to “hunt … as formerly” (para. 28). • The treaty’s guarantee applied to “the full panoply of hunting practices in which the Tsartlip people had engaged beforethey agreed to relinquish control over their lands on Vancouver Island” (para. 25). • One of those pre-treaty practices was night hunting with the aid of a light.

In this respect, Justices Deschamps and Abellaaccepted the trial judge’s finding that: “night hunting with illumination was one of the various methods employed by the Tsartlip[people] from time immemorial” (para. 26). They cited evidence to that effect (paras. 10, 27, 32). • Consequently, the treaty guaranteed night hunting with a light: 29 … the language of the treaty supports the view that the right to hunt “as formerly” means the right to hunt according to the methodsused by the Tsartlip at the time of and before the Treaty.

This would obviously include those methods the Tsartlip have used in hunting“from time immemorial”. … 33 … But changes in method do not change the essential character of the practice, namely, night hunting with illumination. What waspreserved by the Treaty and brought within its protection was hunting at night with illuminating devices, not hunting at night with aparticular kind of weapon and source of illumination [italics in S.C.C. reasons].

This conclusion is dictated by the common intentions ofthe parties to the Treaty, as distilled from the context in which the Treaty was entered into. … • Justices Deschamps and Abella acknowledged that “there is no treaty right to hunt dangerously” (para. 14).

They reconciledthe treaty with safety by interpreting the treaty to exclude what they found, in British Columbia’s circumstances, to be an overbroadprovision that extended beyond safety: 35 We agree, as stated earlier, that it could not have been within the common intention of the parties that the Tsartlip would be granteda right to hunt dangerously, since no treaty confers on its beneficiaries a right to put human lives in danger. This limitation on the treatyright flows from the interest of all British Columbians in personal safety.

It is also confirmed by the language of the Treaty itself, whichrestricts hunting to “unoccupied lands”, away from any town or settlement.

British Columbia is a very large province, and it cannotplausibly be said that a night hunt with illumination is unsafe everywhere and in all circumstances, even within the treaty area at issue inthis case. … 37 … Individual statutory provisions have to be evaluated to determine whether, based on the available historical evidence, they areconsistent with the common intention of the parties to the treaty. 38 In our view, the best reconciliation of the parties’ intentions is one that preserves as much as possible the ancient practices theTsartlip would have understood as forming part of their “liberty to hunt” under the Treaty, subject only to the limit that they do not havea right to put lives or property at risk.

Thus, at the very least, the safety limitation in the Treaty should not be drawn so broadly as toexclude all night hunting [italics in S.C.C. decision]. It could not have been within the common intention of the parties to completely bannight hunting, which was a long-accepted method of hunting for food.

… 40 The blanket prohibition of s. 27(1)(

d) and (

e) applies, of course, throughout British Columbia, including the vast regions of theinterior. Much of the north of the province is uninhabited except by aboriginal people, and there are areas where even they are seen onlyoccasionally.

To conclude that night hunting with illumination is dangerous everywhere in the province does not accord with reality andis not, with respect, a sound basis for limiting the treaty right. … 56 There is no treaty right to hunt dangerously. … 57 However, based on an understanding of the common intention of the parties to the Treaty, the Tsartlip’s treaty right includes theright to hunt at night with illumination, with the modern incarnation of their ancestral method, namely the use of firearms. 58 The legislative prohibition set out in s. 27(1)(

d) and (

e) of the Wildlife Act is absolute, and it applies without exception to the wholeprovince, including the most northern regions where hours of daylight are limited in the winter months and populated areas are few andfar between. The Legislature has made no attempt to prohibit only those specific aspects or geographic areas of night hunting that areunsafe by, for example, banning hunting within a specified distance from a highway or from residences.

The impugned provisions areoverbroad, inconsistent with the common intention of the parties to the treaties, and completely eliminate a chosen method of exercisingtheir treaty right. … 60 … Although provincial laws of general application that are inapplicable to aboriginal people can be incorporated into federal lawunder s. 88 of the Indian Act, this cannot happen where the effect would be to infringe treaty rights. Because paras. (

d) and (

e) of s. 27(1)of the Wildlife Act constitute a prima facie infringement, they cannot be incorporated under s. 88 of the Indian Act. [56] The ruling in Morris was the basis of a remittal by the Supreme Court of Canada, and the subsequent decision of the NewBrunswick Court of Appeal in R. v. Polches, 2008 NBCA 1. [57] Messrs. Paul and Francis submit that Bernard is irreconcilable with the majority’s reasons in Morris. [58] Judge Ryan and Justice Duncan concluded that Morris had not overruled Bernard’s conclusion on s. 68 of Nova Scotia’sWildlife Act. I hold the same view.

My reasons are these. [59] In Morris, Justices Deschamps and Abella did not mention Bernard. So the issue is whether their reasons impliedly overturnedBernard. [60] In Sparrow, para. 66, Chief Justice Dickson and Justice La Forest said “[w]e wish to emphasize the importance of context andthe case-by-case approach to s. 35(1)” and “the contours of a justificatory standard must be defined in the specific factual context of eachcase”. To similar effect: Gladstone, at para. 65, Van der Peet, para. 69, per Lamer C.J.C. for the majority, and R. v.

Nikal, (SCC), [1996] 1 S.C.R. 1013, at para. 95, all noting the fact-specific application of the Sparrow principles. [61] The majority’s ruling in Morris, on the other hand, applied an all-or-nothing approach, based on a form of interjurisdictionalimmunity.

The outcome was a categorical province-wide exclusion of a provincial statutory provision. [62] In Tsilhqot’in Nation, paras. 118-49, Chief Justice McLachlin for the Court reviewed the tests for assessing aboriginal rights,then re-affirmed Sparrow’s approach over that of the majority in Morris: [150] Morris, on which the trial Judge relied, was decided prior to this Court’s articulation of the modern approach to interjurisdictionalimmunity in Canadian Western Bank [Canadian Western Bank v. Alberta, 2007 SCC 22 , [2007] 2 S.C.R. 3] and CanadianPilots Association [Quebec (Attorney General) v.

Canadian Owners and Pilots Association, 2010 SCC 39 , [2010] 2 S.C.R.536], and so is of limited precedential value on this subject as a result (see Marine Services [Marine Services International Ltd. v. RyanEstate 2013 SCC 44 , [2013] 3 S.C.R. 53], at para. 64). To the extent that Morris stands for the proposition that provincialgovernments are categorically barred from regulating the exercise of Aboriginal rights, it should no longer be followed. I find that,consistent with the statements in Sparrow and Delgamuukw [Delgamuukw v.

British Columbia, (SCC), [1997] 3 S.C.R.1010], provincial regulation of general application will apply to exercises of aboriginal rights, including Aboriginal title land, subject tothe s. 35 infringement and justification framework.

This carefully calibrated test attempts to reconcile general legislation with Aboriginalrights in a sensitive way as required by s. 35 of the Constitution Act, 1982 and is fairer and more practical from a policy perspective thanthe blanket inapplicability imposed by the doctrine of interjurisdictional immunity. [63] Consequently, to determine whether Morris impliedly overturned Bernard, one must compare the context that prevailed inMorris to that in Bernard and this case. There are three telling differences. [64] First, in Morris, the majority’s reasons expressly rely on the treaty.

In Bernard, and in this case, there is no treaty. [65] In R. v. Badger, (SCC), [1996] 1 S.C.R. 771, at para. 75, Justice Cory said that, though Sparrow involvedaboriginal rights, Sparrow’s criteria “should, in most cases, apply equally to the infringement of treaty rights”. Cory J. then explained thedifferences of origin and structure between treaty and aboriginal rights: 76 There is no doubt that aboriginal and treaty rights differ in both origin and structure. Aboriginal rights flow from the customs andtraditions of the native peoples. To paraphrase the words of Judson J. in Calder [Calder v.

British Columbia (Attorney General), (SCC), [1973] S.C.R. 313], at p. 328, they embody the right of native people to continue living as their forefathers lived. Treatyrights, on the other hand, are those contained in official agreements between the Crown and the native peoples. Treaties are analogous to

contracts, albeit of a very solemn and special, public nature. They create enforceable obligations based on the mutual consent of the parties. It follows that the scope of treaty rights will be determined by their wording, which must be interpreted in accordance with the principles enunciated by this Court. [ 66 ] Those differences in origin and structure are germane to the comparative contexts of Morris and the Nova Scotia cases. In Morris , the treaty guaranteed the right to “hunt … as formerly”.

Justices Deschamps and Abella interpreted the treaty’s expressed mutual intent to exclude a provincial safety provision that would apply to unoccupied lands where there was no safety risk and which had been night hunted with lights since time immemorial. Then Justices Deschamps and Abella cited the Indian Act , s. 88, which said “[s]ubject to the terms of any treaty … all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province …”.

These treaty-sourced factors were absent in Bernard and in this case. [ 67 ] Second, in Morris , there was evidence, accepted by the trial judge, that the Tsartlip Nation had night hunted with a light since “time immemorial”. [ 68 ] In this case, the trial judge found, based on the three experts’ evidence, that the Mi’kmaq historically had hunted by moonlight, but had not used a light, torch or flambeau (trial decision, paras. 371 and 386; see above, para. 36 and below, para. 96). [ 69 ] Third, in Morris , there was evidence and findings that British Columbia had vast tracts that were largely unoccupied except by aboriginal peoples, aboriginal peoples had night hunted with lights without safety incident and there was no safety risk at the occasion for which Messrs.

Morris and Olsen were charged. The absence of a safety risk was critical to the majority’s ruling. [ 70 ] In this case, the trial judge found there was a significant safety risk, and the finding was amply supported by evidence.

Judge Ryan’s decision included: [365] There was ample evidence before me on the issue of safety and the impugned provisions of the Wildlife Act (N.S.); see, for example, the testimony of Crown witnesses John Momborquette, Director of Enforcement Division of the Department of Natural Resources; Gary Lowe, Aboriginal Conservation Liaison Officer; and Benedict Toney, Conservation Officer with the Department of Natural Resources.

I accept the evidence of these and the other witnesses that “safety” is and should be a primary concern of the impugned provisions of the Wildlife Act . … [ 71 ] Earlier in his reasons Judge Ryan recited the evidence of these witnesses on the safety issue. I will quote his

summary of Mr. Momborquette’s testimony: [237] He was very familiar with the area in question having patrolled that area as a conservation officer the first 15 years of his employment with the department. The area was highly used, and not only by hunters. The department statistics reveal high usage at all times of the year for fishing, camping, recreating. In winter because of high snow accumulations it was very popular with snowmobilers. On one two-day patrol (with RCMP) he had occasion to check over 400 snowmobilers. [238] Mr.

Momborquette emphasized the nature of the usage of the general area where this matter before the Court occurred: “A. Yeah. We have the whole gambit. We have people that are out there utilizing our resources in a commercial operation, whether they’re harvesting, berry picking, people recreating, camping, fishing, hiking, particularly in the Cape Breton Highlands where we see it year round. It’s a high use area at all times of the year. It basically runs the whole gambit. We’d see as many fishermen out there or as many campers out there on any given day in that particular area of the province. Q.

You say in a “particular area”. What are you referring to? A. The Cape Breton Highlands, the area relative to where this offence occurred.” (Transcript, July 23, 2009, pp. 468, 469) [239] In regard to the issue of night hunting with a light, the department put much emphasis on enforcement because of the safety issues associated with such practice. The Hunter’s Mountain area was the source of more complaints regarding night hunting than any other area in the Province. As a safety issue, with the discharge of a high powered firearm at night, there are many variables that come into play.

The line of sight, a very limited knowledge of the background, the lack of knowledge of movement or traffic activity in the area, these are some of those variables that impact on safety. He had seen sheds that were hit by gunfire, mailboxes, vehicles – all hit by stray bullets.

He has had one occasion where a frustrated landowner actually returned gunfire, striking a motor vehicle and wounding an occupant (not in the Hunters Mountain area). [240] He testified that when it came to the issue of hunting at night, other than the safety issue – “I don’t have concerns.” (Transcript July 23, 2009, p. 467) [241] The area has an extensive road system all publicly accessible, owned by the Crown but built and maintained by the forest industry.

Concerning the main road proceeding from the entrance at Hunter’s Mountain to the Wreck Cove Power Generating Facility, “… it’s got posted speed limit signs and road signs on it” (Transcript July 23, 2009, p. 474) [242] He was the recipient of a complaint from the then owner of the forestry rights in that area (Stora Forest Industries) relating to nighttime firearm discharges near their working operations.

Nighttime firearm discharges was the source of the most complaints in that area: “It would be one of the highest number of complaints that we would receive relative to unsafe activities whether it be discharge in close proximity to woods operations, people out there hiking, camping at nighttime and daytime.” (Transcript July 23, 2009, p. 476) [243] The forest industry carried out operations there on a 24/7 basis with workers harvesting, setting up camps, repairing or servicing equipment and engaging in other operational activities. He had one complaint just a few months prior to testifying of:

“… the camp being struck recently by a high-powered rifle. … a trailer was struck by a high-powered rifle in the Hunter’s Mountainarea.” (Transcript July 23, 2009, p. 476) [244] Thus, as a result, his Department had put considerable focus on responding to public complaints, and: “… dealing with the public safety issue is the reason that we’re out there.” (Transcript July 23, 2009, p. 477) [72] In this case, the SCAC judge reviewed this evidence and the trial judge’s findings, then concluded: [116] I am satisfied that the evidence supports the judge’s conclusion that the public safety is put at risk when armed people hunt atnight with a light. … [73] The SCAC judge referred to British Columbia’s vast unoccupied territory that diffused the safety risk in Morris, then said: [123] There was no evidence before the trial court in this case that showed that there are areas of Nova Scotia that are so sparselypopulated or in such low usage by humans that hunting at night with or without a light can be carried out safely. [124] In both Bernard, and the case at bar, the evidence showed the opposite to be true.

The areas where the offences were committed,being Northside East Bay and the Cape Breton Highlands, were found by the trial courts to be inhabited and in regular use by humansfor a wide variety of activities – recreational, institutional and commercial. … [125] Permitting hunting of any species at night in a populated area is dangerous. … [74] In Morris the majority rejected the presumption that night hunting with a light was inherently unsafe. That presumption wasinconsistent with the evidence in Morris.

In this case, the trial judge made a finding, well-supported by the evidence, that night huntingin the Cape Breton Highlands is unsafe. [75] It is Sparrow’s “carefully calibrated test”, as the Chief Justice termed it in Tsilhqot’in Nation, that governs the appraisal ofaboriginal rights under s. 35(1) of the Constitution Act, 1982. Sparrow’s test is fact-specific and context- driven.

As was the case inBernard, the context that underlies s. 68 of Nova Scotia’s Wildlife Act reasonably supports the trial judge’s finding, upheld by theSCAC, that the appellants’ night hunting with a light in this area of the Cape Breton Highlands posed a significant safety risk. [76] I respectfully reject the appellants’ submission that Morris has overturned Bernard’s ruling on the effect of s. 68 in NovaScotia’s Wildlife Act. [77] Prima facie infringement: With the assistance of Bernard, I will turn to the test for prima facie infringement.

In Tsilhqot’inNation, McLachlin C.J.C. reiterated Sparrow’s three questions: [122] Next, in order to determine whether the right is infringed by legislation, a court must ask whether the legislation results in ameaningful diminution of the right: Gladstone [R. v. Gladstone, (SCC), [1996] 2 S.C.R. 723].

As discussed, inSparrow, the Court suggested that the following three factors will aid in determining whether such an infringement has occurred: (1)whether the limitation imposed by the legislation is unreasonable; (2) whether the legislation imposes undue hardship; and (3) whetherthe legislation denies the holders of the right their preferred means of exercising the right (p. 1112). [78] Whether there has been a “meaningful diminution” of the aboriginal right is the ultimate issue to which the three questionspertain: Gladstone, para. 43; Morris, para. 53; Seward, para. 37. [79] First, is the limitation in s. 68 unreasonable? [80] In Badger, Cory J. wrote: 88 … It has been held on a number of occasions that aboriginal or treaty rights must be exercised with due concern for public safety. … Cory J. para. 88, quoted R. v.

Myran, (SCC), [1976] 2 S.C.R. 137, pages 141, per Dickson J. as he then was, for theCourt. Justice Cory continued: 89 That decision was subsequently affirmed by this Court in Sutherland [R. v. Sutherland, (SCC), [1980] 2 S.C.R. 451,p. 460] and Moosehunter [R. v. Moosehunter, (SCC), [1981] 1 S.C.R. 282]. To the same effect R. v. Napoleon, (BC SC), [1986] 1 C.N. L.R. 86 (B.C.C.A.), and R. v. Fox, (ON CA), [1994] 3 C.N.L.R. 132 (Ont. C.A.).Accordingly, it can be seen that reasonable regulations aimed at ensuring safety do not infringe aboriginal or treaty rights to hunt forfood.

Similarly, these regulations do not infringe the hunting rights guaranteed by Treaty No. 8 as modified by the NRTA. Cory J. held (para. 90) that the safety provisions of the provincial Wildlife Act do not constitute a prima facie infringement under theSparrow test. To similar effect: R. v. Sundown, (SCC), [1999] 1 S.C.R. 393, para. 26, per Cory J. for the Court;Seward, paras. 47-48; R. v. Jacob, 2009 ONCA 73, para. 42; R. v. Paul, (QC CS), [2000] 3 C.N.L.R. 262 (C.S.Que.), paras. 38-40; R. v. Ice, [2000] O.J. No. 5857 (Ct. of J.), paras. 6-12; R. v. Pitawanakwat, 2004 ONCJ 50 , [2004] O.J.

No.2075 (Ct. of J.), para. 44. [81] An example of the danger from night hunting with a light appeared in R. v. Fontaine, 2014 MBQB 119, a sentencing decision.The facts were: 6 On the day in question Mr. Fontaine and some friends went moose hunting about midnight. They travelled just outside theircommunity of Sagkeeng on the road leading to Happy Lake. This was on property owned by the local mill. They were hunting to providefood for their families.

7 Unbeknownst to them, Mr. Fontaine’s good friend Jason Guimond had been in that precise area earlier that day. Although he was there to gather firewood, he came across two moose, and shot them. He also intended the moose as food for his family. 8 Mr. Guimond left the moose there so he could take his firewood back and return with help to retrieve the carcasses. Unfortunately, his truck had a flat tire which caused him some considerable delay, but eventually he was able to return to the site with his two friends.

He was wearing a baseball cap that had small LED lights on its peak. 9 The area he was in was only several hundred feet from the road. There were no trees or bushes of any substantial size between his location and the road. 10 Mr. Fontaine and his friends had parked their truck on the road, some distance from Mr. Guimond’s truck, which they did not see. One of the individuals had a spotlight. As he shone the light, Mr. Fontaine thought he saw the eyes of a moose reflecting the light back. He immediately fired his gun. It turned out that he was seeing the LED lights on Jason Guimond’s hat. Mr.

Guimond was shot in the eye and killed instantly. [ 82 ] I will turn to Nova Scotia’s s. 68 . In Bernard , Justice Roscoe said: [52]

Section 68 prohibits a practice which on the preponderance of the evidence and case authorities is inherently unsafe. That its legislative purpose is at least partially to prohibit unsafe hunting cannot be rationally challenged. In my view, even if conservation of wildlife was originally the purpose of the section, or if it remains one of its objectives, that does not diminish the significance of its safety-based objectives and effects. The

section therefore is a reasonable limitation on the aboriginal right to hunt for food. [ 83 ] In the case of Messrs. Paul and Francis, the evidence of a safety risk was more pronounced than in Bernard . Judge Ryan found there were significant safety concerns.

He concluded: [367] Like the courts in Seward (at para. 48 ), Bernard (at para. 52), and Badger (at para. 89 ), I find that measured against the standard of public safety, s. 68 of the Wildlife Act which prohibits hunting with a light is not in my opinion an unreasonable limitation on the Mi’kmaq right to hunt for food or ceremonial purposes. [ 84 ] The SCAC judge accepted that finding. [ 85 ] Earlier (paras. 70-73), I outlined some of the evidence that supports the finding of a safety risk in this case. As this Court held in Bernard , safety is one of the purposes of s. 68 .

The courts below did not err by concluding that s. 68 is a reasonable limitation on the aboriginal right to hunt for food. [ 86 ] Second, does the limitation impose undue hardship? [ 87 ] In Sparrow , p. 1112, Lamer C.J.C. said: Fishing rights are not traditional property rights. They are rights held by a collective and are in keeping with the culture and existence of that group. … [ 88 ] Consequently, the “enquiry should be focused on the collective right of the Band, and whether members of the Band, not the individual appellants, suffered undue hardship by reason of the regulation”: R. v.

Sampson , [1995] B.C.J. No. 2634 (C.A.), para. 62 . [ 89 ] In Nikal , Justice Cory for the majority explained “undue hardship”: 100 The second question is whether the regulation imposes an undue hardship. The term “undue hardship” implies that a situation exists which imposes something more than mere inconvenience. It follows that a license which is freely and readily available cannot be considered an undue hardship. The situation might be different

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