This case was heard in the New Brunswick Court of Queen’s Bench, Trial Division, and was an appeal of the decision in R. v Bernard, 2010 NBPC 30 (CanLII).

Prior to this case, the New Brunswick Provincial Court had convicted Mr. Bernard of unlawfully hunting deer without having a valid licence in violation of section 32(1)(b) of the New Brunswick Fish and Wildlife Act. In response to this charge, Mr. Bernard had argued that he did not need a license to hunt in that area because he had an Aboriginal right to hunt there which was protected by section 35 of the Constitution Act, 1982. The Provincial Court had found that Mr. Bernard had failed to prove that he had this right.

In this appeal, Mr. Bernard argued that the Provincial Court had erred in finding that he could not prove he had an Aboriginal right to hunt in the area where he had been found. The Court once again found that Mr. Bernard could not prove that he had an Aboriginal right. 

Section 35 of the Constitution Act, 1982 recognizes and affirms the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada. It also defines Aboriginal people as being Indian, Métis, or Inuit. To prove he had Aboriginal rights, Mr. Bernard had to prove that he qualified for rights under section 35 because he was Indian, Métis, or Inuit. He also had to prove that he belonged to a community that possessed the right to hunt in the area where he had been hunting. Mr. Bernard argued that he was an Aboriginal for the purposes of section 35 because he was Indian (specifically, Mi’kmaq). Mr. Bernard had Indian status under the Indian Act. However, he did not identify himself as being affiliated with any specific Mi’kmaw community. Because of this, the Court had to decide whether Mr. Bernard could prove he had Aboriginal rights without belonging to a specific Mi’kmaw community. The Court looked at decisions from past court cases and the wording of section 35 to consider this issue. The Court decided that Aboriginal rights are communal and are held by Indigenous communities rather than by Indigenous individuals. The Court held that Mr. Bernard did not belong to a Mi’kmaw community that had a right to hunt in the area in question.

However, the Court decided that it needed to consider other possible reasons to dismiss the charge. It considered the honour of the Crown and the Crown’s duty to act in good faith towards Indigenous peoples. It also considered the defence of officially induced error, based on the fact that government officials had led Mr. Bernard to believe that he had Aboriginal rights. The Court decided that based on these issues Mr. Bernard’s sentence should be reduced. 

The Court upheld Mr. Bernard’s conviction but permanently suspended his sentence (decided that he would not be punished).

This decision was later appealed in Bernard v R, 2017 NBCA 48 (CanLII).

View the Decision on CanLII: www.canlii.org/en/nb/nbqb/doc/2016/2016nbqb21/2016nbqb21.html

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