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Hunting and Trapping – Offences and penalties – Hunting with light at night – The Lawyer’s Daily

October 15, 2018

Appeal by the defendants, Paul and Francis, from an appellate decision affirming a conviction under the Wildlife Act. The defendants were Mi’kmaq members of the Eskasoni First Nation with a constitutionally affirmed aboriginal right to hunt for food. They were arrested for hunting for moose at night with the assistance of their truck’s headlights. The defendants submitted that they were exempt from s. 68 of the Wildlife Act, as they were in the process of exercising their aboriginal right to hunt for food. The trial judge convicted the defendants and fined them each $362. A summary conviction appellate court affirmed the conviction. Both judges rejected the defence submission that the aboriginal right exempted the defendants from liability, concluding that hunting at night with a light was unsafe, and was neither a traditional Mi’kmaq practice, nor predated European contact. The defendants appealed to the Court of Appeal.

HELD: Appeal dismissed. The trial judge did not err in characterizing the defendants’ aboriginal right and did not misapprehend the expert evidence in concluding that hunting with the use of headlights was not a logical evolution of a pre-contact practice. The evolution of Supreme Court case law regarding the aboriginal right to hunt for food did not implicitly overturn the NSCA decision in Bernard, which found that s. 68 of the Wildlife Act did not infringe that right. The conclusion that there was no prima facie infringement of the defendants’ right by s. 68 of the Act was reasonable and supported by the evidence. The finding that the defendants’ conduct posed a significant safety risk was supported by the evidence. It was reasonable to conclude that such safety measures were appropriate under the Sparrow test for prima facie infringement.

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