HUNTING VIOLATIONS
from C.A.S.H. Committee To Abolish Sport Hunting

CANADA: Nova Scotia appeals court upholds conviction of two Mi'kmaq hunters who fired at decoy moose

August 29, 2018

From NationalPost.com

As they scanned the darkness with the headlights from their truck, Mi’kmaq hunters Aaron Paul and Charles Francis, members of the Eskasoni First Nation, thought they saw the eyes of a moose staring back at them.

They fired a shot.

But it turned out what they were shooting at on the night of Sept. 5, 2006, was a decoy — a mechanical moose set up by Nova Scotia authorities to catch illegal poachers.

In a case that has dragged on for more than a decade, the Nova Scotia Court of Appeal on Tuesday upheld the conviction of the men for unsafe hunting. The men had tried to argue they were exercising their aboriginal right to hunt for food.

Their lawyer, Douglas Brown, did not return messages seeking comment on the decision.

That night, Paul and Francis drove to a gravel pit in the Cape Breton Highlands and set up a fire. They then used their truck’s headlights to sweep the area for any sign of moose. At one point, Paul thought he had “seen the eyes” of a moose in the distance.

Francis got out of the truck and within seconds fired a round from his 300 Winchester Magnum rifle. What he thought was a moose was actually a decoy set up by officers with the provincial Department of Natural Resources.

Officers, who had been hiding behind piles of gravel, converged on the men with lights flashing and sirens blaring, court heard. They arrested both men and seized their rifles.

Paul and Francis were charged under section 68 of the provincial wildlife act, which states “every person is guilty of an offence who takes, hunts or kills or pursues with intent to take, hunt or kill wildlife by means of, or with the assistance of, a light or flambeau.”

Both men argued they were exempt from the act, citing their aboriginal rights to hunt for food. The use of headlights, they said, was merely a “logical evolution” of their historical practice of hunting with a torch.

After a two-week trial, Provincial Court Judge David Ryan found both men guilty in August 2013 and fined each of them $362.41.

Ryan found that while there was “no question” both men had a constitutionally protected aboriginal right to hunt for food and for ceremonial purposes, that right did not supersede the parameters spelled out in section 68. Specifically, hunting at night with the aid of a light was neither a traditional Mi’kmaq practice — at most, expert evidence showed they hunted at night by moonlight, he said — nor a preferred method of hunting.

“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.… It was at most a practice that was only incidental and occasional to the Mi’kmaq Society,” the trial judge said.

Ryan also found that there was a significant safety risk, citing testimony from a conservation officer who said the area was heavily used by people camping, fishing and snowmobiling.

To prohibit Mi’kmaq people from hunting with a light would not result in undue hardship, Ryan added.

In 2016, the Summary Conviction Appeal Court found the trial judge’s ruling was reasonable and dismissed an appeal by both men, citing a 1996 Supreme Court of Canada decision that “Aboriginal rights are not general and universal; their scope and content must be determined on a case-by-case basis.”

Undeterred, both men took their appeal to the province’s highest court.

But in its unanimous decision Tuesday, the Nova Scotia Court of Appeal found no errors in the lower court decisions.

The argument that night hunting is unsafe is well supported by the evidence, Justice Joel Fichaud wrote on behalf of the panel, adding that the record contains “no evidence” the Mi’kmaq community would suffer any undue hardship if prohibited from hunting with a light.

Fichaud went on to say that he agreed Section 68 “minimally impairs” on the aboriginal right to hunt for food, citing previous evidence that non-aboriginal hunters “who may hunt one week per year and in compliance with s. 68, have a ‘success’ rate of 90-100%.

“Aboriginal hunters whose numbers are much fewer, may hunt 52 weeks per year.”


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