Henry v Smith v Her Majesty the Queen, 2013 NBQB 271 (CanLII)

This case was heard in the New Brunswick Court of Queen’s Bench, Trial Division.

This case involved an appellant, Henry Smith, who had been charged and convicted of possessing a moose carcass contrary to section 58 of the New Brunswick Fish and Wildlife Act. He had been fined one thousand dollars and given a seven-day jail sentence, which was to be stayed until the outcome of this appeal. 

The facts of the matter were as follows: Mr. Smith had been out hunting deer with a group of other individuals, including Johnathan Jagoe, an Indigenous person. While hunting, they had spotted a moose, which Mr. Jagoe shot, and which they then butchered. The meat was then stored at Mr. Smith’s house with a note stating that it belonged to Mr. Jagoe. Both men were then detained by officers of the Department of Natural Resources, who found some of the moose meat in the truck in which the two men were driving.

The issue before the Court of Appeal was whether the trial judge erred in failing to recognize that the meat was held for Mr. Jagoe, whose possession of the meat was legal, in accordance with his Aboriginal and treaty rights. This argument failed, as the Court found that the meat was in the appellant’s possession, and it held that the fact that the person who had harvested the meat was an Indigenous person with a right to possess the meat did not extend the same right to Mr. Smith, who was not Indigenous. Additionally, the Court held Mr. Smith could not rely on defences such as mistake of fact or due diligence, as nothing brought forward by the appellant suggested that he thought the possession was valid. The Court of Appeal dismissed the appeal, and the stay on Mr. Smith’s sentence was removed.

View the Decision on CanLII: https://www.canlii.org/en/nb/nbqb/doc/2013/2013nbqb271/2013nbqb271.html

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