Court File and Parties

Court File No.: City of North Bay 2561-110170

Date: 2012-08-15

Ontario Court of Justice

Between:

Her Majesty the Queen

— AND —

Kenneth Paquette Sr.

Before: Justice of the Peace L.M. Scully

Heard on: June 26, 2012

Reasons for Judgment released on: August 15, 2012

Counsel

Brian Wilkie ....................................................................................................... for the prosecution

The defendant Kenneth Paquette Sr. on his own behalf

Cases Cited

• R. v. Powley, 2003 SCC 43, [2003] S.C.J. No. 43
• R. v. Van der Peet, [1996] 2 S.C.R. 507
• R. v. Marshall (1999), 139 C.C.C. (3d) 391 (S.C.C.)
• R. v. Fortin, [2006] O.J. No. 1166 (C.J.)
• R. v. Gagnon, [2006] O.J. No. 4738 (C.J.)
• R. v. Guay, [2006] O.J. No. 1165 (C.J.)
• R. v. Beaudry, [2006] O.J. No. 790 (C.J.)
• R. v. Laurin, [2007] O.J. No. 2344

Statutes Cited

• Fish and Wildlife Conservation Act, 1997, s. 6(1)(a)
• Courts of Justice Act
• Constitution Act, 1982, s. 35(1) and s. 35(2)
• Canadian Charter of Rights and Freedoms, s. 15

Judgment

JUSTICE OF THE PEACE L.M. SCULLY:

[1] At the start of this trial the Prosecutor withdrew count 1 of the 2 count Information. This trial proceeded on count 2 which charged Mr. Paquette Sr. with unlawfully hunting big game, namely moose, without a licence, contrary to s. 6(1)(a) of the Fish and Wildlife Conservation Act, 1997.

[2] There was an agreed statement of facts read in by the Prosecutor, Mr. Wilkie. It was agreed that on Oct. 15, 2010 at Thistle Township Mr. Paquette Sr. shot a cow moose with a 30.06 rifle and that he did not have a licence to hunt cow moose and that he was co-operative throughout this investigation.

[3] Section 6(1)(a) of the Fish and Wildlife Conservation Act, 1997 states "except under the authority of a licence and in accordance with the regulations, a person shall not hunt or trap, (a) big game." "Big game" is defined in the Act as including moose. As the defendant did not have a licence to hunt cow moose I am satisfied based on the agreed statement of facts that the Crown has proven the offence.

Constitutional Question

[4] The defendant filed a Notice of Constitutional Question and served the appropriate parties pursuant to the Courts of Justice Act. The defendant alleges that as a Métis person his rights pursuant to sections 35 and 15 of the Constitution Act, 1982 have been violated. The defendant testified and filed a number of documents in an attempt to prove that he was entitled to Métis hunting rights. The burden of proof is on the defendant to prove on a balance of probabilities that his constitutional rights were violated.

[5] Section 35 of the Constitution Act, 1982 states as follows:

35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. 35(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.

Section 35 Hunting Rights Analysis

[6] The leading case on Métis s. 35 hunting rights is the case of R. v. Powley, 2003 SCC 43. In this decision the Supreme Court of Canada modified the test they had set out in the Van der Peet case (R. v. Van der Peet, [1996] 2 S.C.R. 507) to apply to the unique situation of the Métis people. The Powley case set out 10 steps to determine if a person is a Métis who has a constitutional right to hunt for food and whether that right has been violated.

[7] I agree with the submissions of the Prosecutor that the defendant has not proven that he has a s. 35 right to hunt for food. Mr. Paquette Sr. clearly self-identifies as a Métis person and it is good to hear that the defendant and his family are no longer ashamed of their Métis heritage but self-identification is not enough. The case law is clear that aboriginal hunting rights are community based not individually based as per the decision of R. v. Marshall (1999), 139 C.C.C. (3d) 391 (S.C.C.) at paragraph 17 and that self-identification is only one part of the test.

[8] I will not review all of the steps in the Powley decision but will review only those that are the most clear cut and problematic for the defendant in this particular case. Failing to prove any one of the parts of the Powley test is fatal to the defendants' s. 35 claim and therefore I need not review all of the parts of the test. Firstly the defendant must prove the existence of a historic Métis community living a distinctive Métis lifestyle as of the time of effective European control in the area where he was hunting. The case law is clear that the Robinson-Huron treaty of 1850 essentially establishes European control and therefore 1850 or just prior to would be the appropriate date to look at. No case that I am aware of has found a historic Métis community in the area north of Lake Nipissing and east of Sudbury and the defendant provided me no evidence of a historic Métis community in this general area or in the specific area where he was hunting which was in Thistle Township.

[9] The defendant must also trace his own ancestry to a local historic Métis community in the area where he was hunting. The evidence provided by the defendant (namely the family trees located in composite exhibit 2) show that the defendant traces his aboriginal roots back to Quebec. His evidence supports the fact that his ancestors did not arrive in the Sturgeon Falls area until sometime between 1856 and 1902. This is after the date of effective European control and therefore would not meet the Powley test. The Prosecutor provided me with many cases that are similar to this case and the courts have consistently found that a person who traces his aboriginal ancestry to eastern Canada, and whose family moved to Ontario after the date of European control, does not have section 35 rights in Ontario. The cases which support this proposition are R. v. Fortin, [2006] O.J. No. 1166 (C.J.); R. v. Gagnon, [2006] O.J. No. 4738 (C.J.); R. v. Guay, [2006] O.J. No. 1165 (C.J.) and R. v. Beaudry, [2006] O.J. No. 790 (C.J.). These cases all followed the test in the Powley decision.

Section 15 Charter Rights Analysis

[10] Mr. Paquette Sr. also asserts that his section 15 Canadian Charter of Rights and Freedoms right to equality has been violated. The defendant led evidence that his cousins and uncles have Harvester's certificates from the Métis Nation of Ontario (hereinafter called the MNO). The defendant has tried to obtain one of these certificates but has been unsuccessful although he does have a Citizenship card from the MNO. The defendant states that he is being treated unequally by the MNO as he should be able to have a Harvester's card just like his uncles and cousins and he believes that would give him the right to hunt and fish without a licence. During Mr. Paquette Sr.'s evidence the Prosecutor's position as part of an agreed statement was that the Ministry of Natural Resources (hereinafter called the MNR) would treat those with Harvester's cards within the geographical area of Lake Nipissing the same as status aboriginal persons with respect to hunting and fishing rights. However later in the Prosecutor's submissions Mr. Wilkie stated that a Harvester's certificate doesn't equal s. 35 rights. This would seem on its' face to be a contradiction however there was very little evidence led by either side with respect to the Harvester's certificates and the defendant does not have a Harvester's certificate in any event.

[11] The defendant is not claiming that the MNR or any branch of government of Ontario or Canada has violated his s.15 Charter right and I have no factual basis before me to find that they did. The defendant is claiming that the MNO is the organization that has treated him unequally and the MNO is not a party to this case. Any claim against the MNO would have to be dealt with in a different forum.

[12] I have read the case of R. v. Laurin, [2007] O.J. No. 2344 which is a decision of Justice Rodgers dealing with charges against 3 persons who were charged with various fishing violations in relation to their fishing activities in the French River. All three defendants had Harvester's cards (certificates) from the MNO. Justice Rodgers stayed the charges against the three defendants but in doing so stated "This ruling is limited to the issue of whether these prosecutions amounted to a violation of the July 7, 2004 interim agreement which expired in July of 2006. I have made no ruling regarding the merits of any claim that the Mattawa/Nipissing area contains section 35 rights bearing Métis communities. That has yet to be determined, ideally between the parties themselves." The interim agreement referred to by Justice Rodgers is an agreement between the MNR and MNO after lengthy negotiations as a result of the Powley decision. The decision outlines the ongoing disagreements between the MNR and MNO with respect to the appropriate geographical limits of the Harvester's cards and who should be given these cards and perhaps explains the apparent contradictions in the statements of the Prosecutor which make sense in light of the Laurin decision and the context of the issuance of these Harvester's cards. The Laurin case does not assist the defendant in his claim for s. 35 rights or in his s. 15 argument.

Verdict

[13] Therefore for the reasons indicated I find that the Prosecution has proven the charge beyond a reasonable doubt and I find that the defendant has not proven on a balance of probabilities that he has section 35 rights or that his section 15 rights have been violated and I find Mr. Paquette Sr. guilty of count number two.

Released: August 15, 2012

Signed: "Justice of the Peace L.M. Scully"