R v Morin, 2022 SKCA 98

Court of Appeal for Saskatchewan Docket: CACR3503 Citation: R v Morin, 2022 SKCA 98Date: 2022-09-13 Between:Lester Morin, Rose Morin and Richard RabbitskinAppellants AndHis Majesty the KingRespondent Before: Richards C.J.S., Caldwell and Whitmore JJ.A.Disposition: Appeal dismissedWritten reasons by: The Honourable Chief Justice RichardsIn concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice WhitmoreOn appeal from: 2021 SKQB 271, SaskatoonAppeal heard: February 9, 2022Counsel: Donald Worme, K.C. and Mark Ebert for the Appellants James Fyfe for the Respondent Richards C.J.S. I.

INTRODUCTION [1] The appellants, Lester Morin, Rose Morin and Richard Rabbitskin, are treaty Indians. They were hunting for food and shotacross cultivated farmland to kill moose standing at the edge of a slough. They then drove across the farmland to retrieve the moose. Theywere charged with hunting contrary to The Wildlife Act, 1998, SS 1998, c W-13.12 [Wildlife Act]. [2] A Provincial Court judge [trial judge] convicted the appellants and rejected their argument that they had a right to hunt on theland in question.

She found that, as per R v Badger, (SCC), [1996] 1 SCR 771 [Badger], the cultivated land was visiblyincompatible with hunting and that the appellants therefore had no right to access it. The appellants unsuccessfully appealed theirconvictions to the Court of Queen’s Bench: R v Morin, 2021 SKQB 271. [3] The appellants now ask this Court to set aside the Queen’s Bench decision and enter acquittals. They advance a number ofarguments but contend, most centrally, that they were not “hunting” within the meaning of the Wildlife Act.

As explained below, Iconclude that the appellants’ arguments cannot succeed and that their appeals must be dismissed. II. TREATY AND CONSTITUTIONALBACKGROUND [4] Between 1871 and 1923, the federal government concluded treaties with various Indian bands in the western part of Canada.As explained in Badger, the objective of this exercise was “to facilitate the settlement of the west” (at para 39). Broadly speaking, thetreaties involved the surrender by the Indian signatories of their rights, title and privileges in the land described in the treaty in exchangefor various commitments made by the Crown.

These commitments included guarantees of harvesting rights in all of the treaties exceptTreaty 1 and Treaty 2.

These rights were expressed in Treaty 6, the treaty relevant here, as follows: Her Majesty further agrees with Her said Indians that they, the said Indians, shall have right to pursue their avocations of hunting andfishing throughout the tract surrendered as herein before described, subject to such regulations as may from time to time be made by HerGovernment of Her Dominion of Canada, and saving and excepting such tracts as may from time to time be required or taken up forsettlement, mining, lumbering or other purposes by Her said Government of the Dominion of Canada, or by any of the subjects thereofduly authorized therefor by the said Government. [5] The three prairie provinces were not given ownership of Crown resources when they entered Confederation.

The NaturalResources Transfer Agreement (Schedule 3 of the Constitution Act, 1930 (UK), 20-21 Geo V, c 26, reprinted in RSC 1985, App II, No 26)[NRTA], and its counterparts in Alberta and Manitoba were enacted to remedy that situation. The NRTA extinguished treaty rights to huntcommercially but expanded the geographical areas in which Indians have the treaty right to hunt for food. Paragraph 12 of the NRTA readsas follows: 12.

In order to secure to the Indians of the Province the continuance of the supply of game and fish for their support and subsistence,Canada agrees that the laws respecting game in force in the Province from time to time shall apply to the Indians within the boundariesthereof, provided, however, that the said Indians shall have the right, which the Province hereby assures to them, of hunting, trapping andfishing game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indiansmay have a right of access. [6] It follows from all of this, as explained in Badger at paragraph 66, that in respect of privately-owned property, it must be

determined on a case-by-case basis whether the property is “other lands” to which Indians have a “right of access”. If the lands areoccupied, that is “put to visible use which is incompatible with hunting”, Indians will not have a right of access to hunt for food unlesspermission is given by the landowner. However, if privately-owned land is unoccupied, Indians will have a right to hunt there for food. [7] There is a not insignificant body of case law which has dealt with the question of whether land has been put to a visible usewhich is incompatible with hunting. The more instructive decisions in that regard are summarized below: (

a) In Badger itself, the Supreme Court considered the status of three different tracts of land: [67] The first is Mr. Badger. He was hunting on land covered with second growth willow and scrub. Although there were no fences orsigns posted on the land, a farm house was located only one quarter of a mile from the place the moose was killed. The residence did notappear to have been abandoned. Second, Mr. Kiyawasew was hunting on a snow-covered field. Although there was no fence, there wererun-down barns nearby and signs were posted on the land.

Most importantly, the evidence indicated that in the fall, a crop had beenharvested from the field. In the situations presented in both cases, it seems clear that the land was visibly being used. Since the appellantsdid not have a right of access to these particular tracts of land, their treaty right to hunt for food did not extend to hunting there. As a result,the limitations on hunting set out in the Wildlife Act did not infringe upon their existing right and were properly applied to these twoappellants. The appeals of Mr. Badger and Mr. Kiyawasew must, therefore, be dismissed. [68] However, Mr.

Ominayak’s appeal presents a different situation. He was hunting on uncleared muskeg. No fences or signs werepresent. Nor were there any buildings located near the site of the kill. Although it was privately owned, it is apparent that this land was notbeing put to any visible use which would be incompatible with the Indian right to hunt for food. Accordingly, the geographical limitationsupon the Treaty right to hunt for food did not preclude Mr. Ominayak from hunting upon this parcel of land. This, however, does notdispose of his appeal.

It remains to be seen whether the existing right to hunt was in any other manner circumscribed by a form ofgovernment regulation which is permitted under the Treaty. (

b) In R v Horse, (SCC), [1988] 1 SCR 187, the Court found there was no right of access to privately-ownedlands that were not posted but that were sown to hay and grain. The lands were thus, as it was put in Badger at paragraph 62, “visibly andactively used for farming”. (

c) In R v Peeace, 2000 SKCA 16, [2000] 4 WWR 221, this Court affirmed a Queen’s Bench finding that the land in issue wasoccupied (see: R v Peeace (1999), (SK KB), 182 Sask R 9). The land had been described as follows by the trial judge: [4] The appellant, George Peeace, is a member of the Yellow Quill First Nation which was a party to Treaty No. 4. On October 15,1995, he shot, with a high powered rifle, two cow moose for food. The land on which the moose were shot was privately owned. It was atthe time in summer fallow, although there were some unbroken bush covered areas.

It had been cropped the previous year and it was theintention of the owner to plant a cereal crop the following year. There were no signs, fences, buildings, corrals or domestic animals on theland. The owner and his family lived approximately two miles away. There was another occupied farm site about a mile away, however,because of the terrain the farm buildings could not be seen from the spot where the moose were shot. The appellant did not seek or obtainpermission to hunt on the private land. (

d) In R v Pierone, 2018 SKCA 30, 361 CCC (3d) 217 [Pierone], this Court found no visible, incompatible use in respect of aslough abutting a roadway. Justice Caldwell described the situation at issue in these terms: [42] On this basis, I find the land in question for the purposes of determining whether there had been a visible, incompatible use is theslough in which Mr. Pierone shot and killed the moose. It does not extend to the full quarter

section of cultivated farmland upon which theslough is located, although that land and the agricultural use to which it was being put is still relevant to the analysis (e.g., if there hadbeen animals, buildings, or equipment present or indicated). I draw this conclusion because the slough is sufficiently large in area (60 by70 metres or yards), geographically distinct from the cultivated field, and at a lower elevation, being a slough. There was no evidence as tothe calibre or range of Mr. Pierone’s rifle or as to how far a bullet fired from it might have travelled. Nor was there any indication otherthan that Mr.

Pierone had simply stopped on the grid road, walked down the bank of the road allowance into the edge of the slough (about70 metres) and fired one shot from a short distance, downing a standing moose. His second shot had been a coup de grâce fired at closerrange. Mr. Pierone processed the moose carcass in the slough and removed the meat from the slough all without accessing the cultivatedfield. That is, nothing on the evidence suggests the cultivated part of the quarter

section had been involved in or affected by Mr. Pierone’shunt. (Emphasis in original) III. FACTUAL BACKGROUND [8] There is no dispute about the facts underpinning this appeal. An Admission of Facts was filed at the trial. Between it, the factsas found by the trial judge and the exhibits filed, the following picture is revealed: (

a) The appellants are members of the Big River First Nation and are beneficiaries of Treaty 6. (

b) On October 7, 2018, the appellants were hunting moose for food near Young, Saskatchewan. (

c) The appellants were driving on Murray Road, a north-south grid, when they saw a moose and two calves standing on a strip ofuncultivated land at the edge of a slough on a quarter

section of land [Land]. (

d) The Land was to the immediate east of Murray Road. There was no cultivated space between the western extremity of theslough and Murray Road. (

e) The significantly largest part of the Land was cultivated and being actively farmed. At the relevant time, it was covered with

wheat stubble. (

f) Lester Morin, who testified at the trial, knew the Land was being farmed and understood that he would need permission tohunt on it. (

g) The Land was owned by Scott Keffer. He had not given the appellants permission to hunt on the Land and testified that, if hehad been asked for permission, he would not have given it because he does not allow big game hunting on his property. The Land was notfenced or marked with “no hunting” signs. (

h) Mr. Keffer’s residence is located one mile to the west of the Land. Another residence is located one mile straight north of theLand. That said, no buildings are visible from the slough or the immediately adjacent land. There were no buildings on the Land itself. (

i) The slough had been cultivated at one point, but it had been too wet to farm for 15 or 20 years. The slough itself, i.e., thewaterbody proper and its immediate shoreline, was bounded in part by a narrow area of land that had not been cultivated, at least in 2018,because it was, or had been, too wet for cultivation. (

j) There were two small bluffs of trees near the slough but separated from it by cultivated land. The area between the two bluffshad been farmed in the past but was no longer under cultivation because it is too narrow to accommodate present-day farm machinery. (

k) After the appellants saw the moose at the edge of the slough, they kept driving for a kilometre to see if they could locate alocal landowner to ask for permission to hunt. When they saw no farmyards, they returned to the spot where they had sited the moose. Theappellants positioned themselves on Murray Road and began firing with rifles across a cultivated part of the Land at the moose. (

l) The cow moose fell and died on the uncultivated land where she had been standing. The calves ran into the slough and diedthere. (

m) The appellants drove their truck across the cultivated part of the Land to retrieve the moose. They then used an ATV to pull themoose over more of the cultivated land to the area between the two bluffs of trees and proceeded to field dress the moose at that location. (

n) The appellants’ activities were observed by a passerby, Dion Dieno, who was concerned about possible illegal hunting andapproached them as they were dressing the moose. Mr. Dieno took pictures of the appellants’ truck and of Lester Morin’s driver’s licence.When the appellants asked Mr. Dieno if he knew who owned the Land, Mr. Dieno, knowing it was not true, indicated that his “cousin”was the owner. He said that he was going to get his cousin and return to the hunt site. Mr. Dieno contacted the conservation authoritiesand then followed the appellants when they left the Land and drove toward their home. [9] The appellants were charged with hunting contrary to s. 25(1)(

a) of the Wildlife Act. It reads as follows: 25(1) Subject to subsection (2), no person shall hunt any wildlife within Saskatchewan: (

a) other than at the times, in the places and in the manner prescribed by this Part and the regulations[.] IV. THE TRIAL DECISION [10] The trial judge began her decision by reviewing the evidence and the factual background.

She proceeded on the basis that thecase fell to be determined “on the application of the visible incompatible use test established in Badger”. [11] The trial judge considered some of the most relevant case law and, in the course of that survey, distinguished Pierone becausethe hunting activity in question there had taken place entirely within the geographical area of a slough bordering on a roadway. [12] The trial judge did not accept the appellants’ argument to the effect that entering onto the cultivated land was merely incidentalto the exercise of their right to hunt.

She said the appellants’ hunting had involved shooting across, and driving on, cultivated land and thatsuch activities were part and parcel of hunting, not somehow incidental to it. [13] The trial judge concluded her decision by saying this: The accused had a Treaty right to hunt for food on private land that is unoccupied and not put to a visible use. The Crown has provenbeyond a reasonable doubt that the lands in question which extended beyond a slough into the stubble field around it were put to a visibleuse that is incompatible with the Treaty right to hunt for food.

Accordingly, the accused hunted on lands which they did not have a right to access, and I therefore find the accused guilty. [14] The appellants then appealed to the Court of Queen’s Bench in its capacity as the

summary offence appeal court. V. THE QUEEN’S BENCH DECISION [15] The Queen’s Bench judge [appeal judge] rejected the appellants’ argument that their actions of shooting across the cultivatedpart of the Land and driving on the cultivated part of the Land to retrieve the moose did not amount to “hunting” within the meaning of theWildlife Act. In so doing, he relied in part on this Court’s decision in R v Baptiste (1985), (SK CA), 40 Sask R 250 (CA)[Baptiste]. VI. LEAVE TO APPEAL

[16]

Summary conviction appeals of provincial offences of the type in issue here are governed by s. 4(4) of The

Summary OffencesProcedure Act, 1990, SS 1990-91, c S-63.1. It incorporates the

summary offence appeal provisions of the Criminal Code, including s. 839.All of this means that this Court has authority to hear an appeal from the decision of the appeal judge, with leave, on questions of lawalone. [17] The leave issue is governed by R v Bray, 2017 SKCA 17. It provides that leave should be granted only if the appellant raises aquestion of law that is either significant to the administration of justice generally or compellingly meritorious. [18] I have little difficulty in concluding that the issues concerning the

interpretation of the Wildlife Act raised by this appeal are ofsufficient general importance to warrant granting leave to appeal. VII. ANALYSIS [19] The appellants accept that the cultivated parts of the Land had been put to a visible use incompatible with hunting. As a result,they do not argue that those areas of the Land were “unoccupied” and that they had a right to hunt on them.

Rather, the appellants framethis appeal as being about the retrieval of dead game and argue that retrieving the moose by driving across cultivated land was not“hunting” within the meaning of the Wildlife Act. [20] I note here, as a preliminary point, that the appellants proceed on the basis that the slough and the narrow band of uncultivatedland at its perimeter constituted unoccupied land on which they had a right to hunt. The trial judge made no express finding on this pointand neither did the appeal judge.

However, both of them, seemingly with Pierone in the background, appear to have seen and treated theslough and the strip of uncultivated land around it as being unoccupied land, i.e., as not having been put to a visible use which isincompatible with hunting. When asked in this Court for its submissions on the status of the slough, the Crown declined that opportunityand took no position on the matter.

As a result, I will assume that the slough and the uncultivated area that bordered it, the area where themoose were standing, was land on which the appellants were entitled to hunt for food. [21] The key to the appellants’ argument that “hunting” does not involve the retrieval of dead animals is the definition of that term ins. 2 of the Wildlife Act.

It reads as follows: “hunting” includes taking, wounding, killing, chasing, pursuing, worrying, capturing, following after or following on the trail of, searchingfor, shooting at, trapping, setting snares for, stalking or lying in wait for any wildlife, or attempting to do any of those things, whether ornot the wildlife is then or subsequently captured, wounded or killed[.] [22] The appellants contend that, notwithstanding its broad language, this definition does not comprehend the act of entering on landfor the purpose of retrieving wildlife that is already dead and that it therefore does not apply to what they did on the cultivated part of theLand.

In the appellants’ view, the entirety of the definition of “hunting” is oriented around, and concerned with, live animals. In thisregard, the appellants emphasize the concluding part of the definition – “whether or not the wildlife is then or subsequently captured,wounded or killed” – and submit that those words inform the whole of what comes before them.

Thus, they say, even though thedefinition refers to, for example, “searching for” wildlife, that must be understood as a reference to searching for live animals given thatthose words are followed by “any wildlife … whether or not the wildlife is then or subsequently captured, wounded or killed” (emphasisadded). The appellants submit that the use of the words “then” and “subsequently” makes sense only if the wildlife in issue is alive whenthe searching takes place. [23] In my respectful view, the appellants’ argument has two flaws.

First, it is advanced on the assumption that the definition of“hunting” in the Wildlife Act is exhaustive. In other words, the appellants’ argument is put forward as if the definition of “hunting”declares the complete meaning of that term. However, the definition is not exhaustive. It says that “hunting” includes the various actionsthat are then listed. As a result, the definition does not displace the ordinary meaning of “hunting”. The effect of a definition structured inthis way is explained as follows by Ruth Sullivan in The Construction of Statutes, 7th ed (Toronto: LexisNexis Canada, 2022) at 71: … While

definitions that begin with “includes” are non-exhaustive in the sense that they do not displace the ordinary meaning of thedefined term and often enlarge it, they are exhaustive in the sense that, for the definition to apply, the person or thing in question mustcome either within the ordinary meaning of the defined term or within the meaning of the terms following “includes”. … (Emphasis in original) [24] Accordingly, even if the concluding words of the definition of “hunting” do colour what comes before them so that the actionsdescribed are taken as relating to live animals, it is still necessary to take into account the ordinary meaning of “hunting” in order todetermine whether the appeal judge misinterpreted that term as it appears in s. 25(1)(

a) of the Wildlife Act. That ordinary meaning must beconsidered as per the so-called modern approach to

interpretation now codified in s. 2-10 of The Legislation Act, SS 2019, c L-10.2. Itreads as follows: 2-10(1) The words of

an Act and regulations authorized pursuant to

an Act are to be read in their entire context, and in their grammaticaland ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of the Legislature.

(2) Every Act and regulation is to be construed as being remedial and is to be given the fair, large and liberal

interpretation that bestensures the attainment of its objects. [25] The object of the Wildlife Act is to protect wildlife and regulate hunting in the interest, among other things, of public safety andwildlife conservation and management. See: R v Glessing, (SK PC), [1990] 2 CNLR 144 (Sask PC) at para70; and R v Alsager, 2013 SKCA 129 at para 35, 427 Sask R 80. I see nothing in that object, or in the scheme of the Wildlife Act, tosuggest that “hunting” should be given anything other than its regular meaning. [26] There are a number of cases that have considered the ordinary meaning of “hunting”. The most frequently cited is R v Prince,

(SCC), [1964] SCR 81. There, working without the benefit of a statutory definition, Hall J. relied on dictionaries toascertain the meaning of the term. He cited the Oxford English Dictionary (“The act of chasing wild animals for the purpose of catching orkilling them; to chase for food or sport; to scour a district in pursuit of game” (at 84)) and Webster’s Third New International Dictionary(“To follow or search for game for the purpose and with the means of capturing or killing” (at 85)). Neither of these

definitions, nor whatis found in the other cases that have considered the meaning of “hunt” or “hunting”, is of particular assistance in resolving the issuesraised by this appeal. [27] It seems readily apparent, however, that “hunting” in the ordinary sense of the word involves more than just the killing ofwildlife. It also involves taking possession of animals after they have been killed. At least when hunting for food or for trophies, theretrieval of the dead animal is the whole point and purpose of the venture. See: Baptiste at para 14.

As a result, the hunting exercise isnormally not complete until the body of the animal has been secured. It is not necessary here to attempt to specify exactly how far“hunting” extends with respect to the continuum of activity involved in the retrieval, dressing and processing of game.

For presentpurposes, it is enough to say that, contrary to the appellants’ submission, an action or activity that involves the retrieval of dead wildlifedoes not, of necessity, fall outside the scope of “hunting” as that term is used in the Wildlife Act. [28] Before leaving this point, I might also note the practical problems involved in the appellants’ attempt to have the definition of“hunting” turn on the question of whether the wildlife in issue is dead or whether it is only wounded. The reality is that a hunter will oftennot know if the animal fired at is dead.

For example, the animal might disappear into the bush and therefore deprive the hunter of beingable to see if it is still standing or is down. Also, depending on how the animal goes down after being shot or what it is shot with, thehunter may well not know whether it is dead or only wounded. It is therefore somewhat unworkable, in real world terms, to have thedefinition of “hunting” turn on the difference between an animal being wounded and being dead.

If that distinction were made, a hunterwould often not know whether they were breaching the Wildlife Act when entering property because they would have to wait until theycame upon the animal that they had shot before being able to tell whether it was dead or alive and hence whether or not they were“hunting”.

Indeed, they could be “hunting” when they entered upon the land and began walking toward the downed animal but thensuddenly not “hunting” at some point if the animal died as they approached it. [29] The second flaw in the appellants’ argument is that it ignores the fact that they did more than just drive across occupied land toretrieve the dead moose. They also fired across that land to kill the moose. This is of some consequence. [30] Obviously, as the appellants contend, the bullets that killed the moose did not touch the occupied part of the Land. Theytravelled over it.

Nonetheless, the occupied part of the Land was essential to the appellants’ killing of the moose. Without takingadvantage of that part of the Land, they would not have felled their prey. Firing over the cultivated land necessarily implicated that land inthe act of shooting. Thus, in the ordinary meaning of the word, the appellants were “hunting” on the occupied part of the Land by virtue offiring over it.

Indeed, there is a strong argument that the appellants were using the occupied part of the Land for “shooting at” wildlife, asper the definition in s. 2 of the Wildlife Act, when they fired over it to kill the moose. This view of “hunting” is reinforced by the fact thatthe Wildlife Act has a public safety objective. That objective would be significantly compromised if hunters could shoot over land without“hunting” on it.

See, for example, s. 39 of the Wildlife Act: “No person shall hunt any wildlife while intoxicated or under the influence of anarcotic or alcohol”. [31] The appellants rely heavily on R v Ritter, 2010 ABPC 360 [Ritter]. Mr. Ritter shot a deer while both he and the deer were onunoccupied Crown land. After it was shot, the deer crossed a roadway, jumped a fence and then collapsed and died on occupied land.Mr. Ritter went on to the occupied land and dragged the deer toward the adjacent road.

He was charged under s. 38(2) of the AlbertaWildlife Act, RSA 2000, c W-10, which provides that “[n]o person shall hunt any wildlife or discharge any firearm on or over occupiedland or enter on occupied land for the purpose of doing so, without the consent of the owner or occupant of it”. The term “hunt” wasdefined at s. 1(1) in that Wildlife Act as follows: (o) “hunt” means, subject to subsection (6), with reference to a subject animal, (

i) shoot at, harass or worry, (ii) chase, pursue, follow after or on the trail of, search for, flush, stalk or lie in wait for, (iii) capture or wilfully injure or kill, (iv) attempt to capture, injure or kill, or (

v) assist another person to hunt in a manner specified in subclause (i), (ii), (iii) or (iv) while that other person is so hunting[.] [32] Provincial Court Judge Tjosvold acquitted Mr. Ritter, finding that the definition of “hunt” did not include retrieving a deadanimal. However, as is apparent, Ritter differs from the present case in two major respects. First, Mr. Ritter did not fire across occupiedland when he shot the deer. Second, the definition of “hunt” in the Alberta legislation, although generally similar to the definition of“hunting” in the Wildlife Act, is an exhaustive definition, not an inclusive one.

Ritter does not assist the appellants. [33] Nor does this Court’s decision in Pierone help the appellants. In that case, as noted above, the Court underlined that Mr.Pierone had walked down the bank of the road allowance directly onto the edge of a slough and fired a shot downing a moose standing inthe slough. He processed the carcass in the slough and removed the meat from the slough without accessing the cultivated field thatsurrounded it. Thus, as Caldwell J.A. concluded at paragraph 42, “nothing on the evidence suggests the cultivated part of the quartersection had been involved in or affected by Mr.

Pierone’s hunt”. This, of course, stands in contrast to the present situation where theappellants shot across cultivated land, drove across cultivated land to reach the moose and then dragged the moose across more cultivatedland to where they were dressed. [34] In the end, therefore, I conclude that the appeal judge did not err in his

interpretation of “hunting” in the Wildlife Act. He wascorrect to find that the appellants had no right to shoot across occupied land to kill wildlife, drive across that occupied land to retrieve thewildlife and then drag the wildlife across other parts of the occupied land to where it was dressed. This amounted to “hunting” on theoccupied part of the Land.

[35] The appellants briefly make a number of other points in broad furtherance of the argument that they should be acquitted ofviolating the Wildlife Act. Let me also deal with those submissions. [36] First, the appellants point to s. 22 of The Wildlife Regulations, 1981, RRS c W-13.1 Reg 1. It creates an offence for the wastingand abandonment of game by providing as follows: 22(1) A person who has killed or is in possession of any game other than a bear or wolf shall not allow its edible flesh to be wasted,destroyed, spoiled or abandoned.

(2) A person who kills or injures any game shall make every reasonable effort to retrieve the game and include it in his or her lawful limit. … [37] The appellants argue that, in light of s. 22, they faced what amounted to a Catch-22. They could either have crossed Mr.Keffer’s cultivated land to retrieve the moose or faced prosecution under s. 22 for abandoning their kill. However, that is no basis for thisCourt to decide that the appeal judged erred in law when he sustained their convictions.

I am unable to see how a hunter could shootmoose in contravention of the Wildlife Act and then turn that unlawful action into a lawful one by virtue of the fact that they have ageneral obligation to retrieve killed and injured game. This sort of bootstrapping has no proper legal foundation.

That said, it is obviousthat the appellants’ concern on this front would have considerably more force and legitimacy if this case involved a true Ritter-typesituation, i.e., if, rather than firing across occupied land to kill the moose, the moose had been shot on unoccupied land while they werestanding on such land but had then moved to occupied land before dying. [38] Second, the appellants contend that, if there is any ambiguity to be addressed in the definition of “hunting”, it should beresolved in favour of First Nations peoples. I of course accept this point at the level of general principle.

See: R v Nowegijick, (SCC), [1983] 1 SCR 29 at 36; and R v Van der Peet, (SCC), [1996] 2 SCR 507 at paras 23–25. Indeed, this Courthas taken that very approach to resolving a statutory ambiguity in at least one case involving the

interpretation of the definition of“hunting” in the Wildlife Act. See: R v Wolverine, (SK CA), [1989] 4 WWR 467 (Sask CA). Here, however, there is noambiguity that needs to be resolved. As a result, the

interpretational principle cited by the appellants does not assist them. [39] Third, the appellants suggest, as I understand it, that this Court should change the concept of “visible incompatible use” so as toallow Indians to access privately-owned land when hunting for food so long as they do not interfere, or so long as they interfere onlyminimally, with the use and enjoyment of that land. In this regard, the appellants underline the need to give meaningful effect to treatyrights and that Mr.

Keffer only learned of the hunting second hand, that they drove over stubble – not standing crop – to retrieve themoose, that all three moose were dragged along the same path from the slough to where they were dressed, and that the “gut piles” of themoose were not left on the cultivated land. In support of their position, the appellants refer to a decision of the British Columbia Court ofAppeal, R v Bartleman (1984), (BC CA), 13 CCC (3d) 488 [Bartleman].

There, at page 506, the Court said, “Thehunting must take place on land that is unoccupied in the sense that the particular form of hunting that is being undertaken does notinterfere with the actual use and enjoyment of the land by the owner or the occupier”. [40] In my view, this Court does not have the authority to give effect to this argument. The Supreme Court has directly addressed, inBadger and other decisions, the question of how to assess whether privately-owned land is “unoccupied” for the purpose of determiningthe geographic reach of Indians’ rights to hunt for food.

Badger, notably, was decided some 12 years after the Bartleman decision reliedon by the appellants and therefore trumps or displaces it. Supreme Court precedents are binding on this Court and the doctrine of staredecisis requires that they be followed. Thus, although the appellants raise some important and interesting perspectives that may warrantfurther examination, the controlling authorities must nonetheless be respected. [41] Fourth, the appellants make submissions on the issue of obtaining consent to hunt on privately-owned land.

The precisecontours and bottom line of this argument are not entirely clear but it involves the idea that they made an effort to obtain consent to hunton the Land, that they were obstructed in this regard by Mr. Dieno holding himself out to be the “cousin” of the landowner and, as well, asubmission that, in the wake of the trial concerning the death of Colton Boushie, it is a difficult and intimidating thing for a First Nationsperson to drive into a farmer’s yard to seek permission to hunt on their land. [42] I am unable to give any effect to these submissions. Mr.

Dieno did mislead the appellants by saying that he was Mr. Keffer’scousin but, by that time, the moose had already been killed and the appellants were in the process of dressing them. Further, according toMr. Morin, the appellants drove only a kilometre after spotting the moose and, when they did not see a farmstead, returned and shot themoose. Mr. Morin did not testify that he had not made additional efforts to obtain consent because he was fearful of approaching farmersto ask for permission to hunt on their land.

He said that he became concerned after the moose had been killed when the appellants wereapproached and then followed by Mr. Dieno. Like the appeal judge, I empathize with Mr. Morin if in fact he did feel concern aboutdriving into farmers’ yards. All of that said, however, there is no apparent legal basis for giving any effect to the appellants’ submissionsabout consent, at least not when those submissions are presented in such a general and abstract way.

As underscored by the appeal judge,the reality is that the appellants did not have permission to hunt on the Land. [43] Fifth, the appellants invoke R v Sundown, (SCC), [1999] 1 SCR 393 [Sundown], for the proposition, as Iunderstand it, that their actions in retrieving the moose should be seen as reasonably incidental to their treaty right to hunt for food. Theysay, as per the Supreme Court’s decision, that “the right to hunt to be effective must embody those activities reasonably incidental to theact of hunting itself” (at para 17, quoting R v Simon, (SCC), [1985] 2 SCR 387 at 403).

I am not persuaded that Sundownadvances the appellants’ position in this case. [44] Mr. Sundown had a right to hunt on land to which Indians had a right of access, a provincial park, and the question was whetherthat entitlement included the right to build a cabin for use when hunting. That issue was resolved in Mr. Sundown’s favour. Here,however, the appellants’ actions were not grounded in the lawful exercise of their right to hunt. As explained above, by firing acrosscultivated land and driving over that land to retrieve and dress the moose, they hunted on that land.

As a result, their argument amounts, ineffect, to saying that they had a right to hunt on occupied land (the cultivated part of the Land) because they had a right to hunt on

unoccupied land (the slough). This sort of reasoning has no proper legal basis. That said, the situation might, at least arguably, be differentif the appellants had not fired over occupied land to kill the moose, but that is not the state of affairs at hand. As noted above, this is not aRitter-type case. [45] Sixth, the appellants also invoke Sundown in a brief submission to the effect that their treaty hunting rights can only be limitedin the name of conservation and that retrieving a dead animal serves no conservation purpose.

In this regard, the appellants appear tocontend that the Wildlife Act is inoperative to the extent it has a reach unrelated to protecting living animals. [46] Again, I am not persuaded by the appellants’ argument. Treaty rights can be limited in ways that are justifiable as per the test inR v Sparrow, (SCC), [1990] 1 SCR 1075. Sundown concerned limitations on a right to hunt confirmed by the NRTA, i.e.,the right to hunt on land to which Indians had a “right of access”.

It was in that context that the Supreme Court, quoting from Badger, saidthat “[t]he provincial government’s regulatory authority under the Treaty and the NRTA did not extend beyond the realm of conservation”(at para 70). The situation here is self-evidently different. The appellants had no right to hunt on the occupied parts of the Land and, as aresult, the Province does not have to provide a conservation, or other, justification for sanctioning or limiting their hunting activity on thatpart of the Land. [47] In the end, and by way of

summary, the appellants have not established that the appeal judge erred in law when he sustainedtheir convictions. VIII. CONCLUSION [48] As explained above, I conclude that the appellants’ appeals must be dismissed. “Richards C.J.S.” Richards C.J.S.I concur. “Caldwell J.A.” Caldwell J.A.I concur. “Whitmore J.A.” Whitmore J.A.