R v Caissie, 2012 NBPC 1 (CanLII)
This case was heard in the New Brunswick Provincial Court.
Mr. Caissie was charged under subsection 17(2) of the Maritime Provinces Fishery Regulations, made under the federal Fisheries Act, for possessing twenty-four speckled trout when the daily limit was five per person at a time. Mr. Caissie admitted to the facts of the offence but claimed that he had an Aboriginal right to fish for his personal consumption under section 35 of the Constitution Act, 1982 because he was a member of an historic Métis community and a holder of a membership card issued by the Métis Council of Canada.
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. Mr. Caissie argued that he had Aboriginal rights under section 35 because he was Métis. To decide if Mr. Caissie did have Aboriginal rights, the Court had to determine whether Mr. Caissie could prove that he was Métis. To do this, the Court had to decide on two points.
First, Mr. Caissie was required to prove that he was of mixed Aboriginal and European descent. The Court concluded that Mr. Caissie was of mixed Aboriginal and European descent based on genealogical research provided by a witness.
Aboriginal rights under section 35 are communal in nature. This meant that the second thing Mr. Caissie had to prove that there was an historic Métis community in the area where he had been fishing, that there was a contemporary community that was a continuation of this historic community, and that he was a member of this contemporary community. The Court decided that Mr. Caissie had not provided enough evidence to prove that there were any contemporary Métis communities in New Brunswick. Because of this, it held that Mr. Caissie was unable to prove that he belonged to a Métis community. Since the Court found that Mr. Caissie was not a member of a Métis community, it decided that he could not prove that he was Aboriginal for the purposes of the Constitution Act, 1982. As such, the Court determined that Mr. Caissie could not prove that he had an Aboriginal right to fish.
Further, the Court decided that Mr. Caissie could not use the defence of believing in a mistaken set of facts or the defence of reasonable care and due diligence. Mr. Caissie believed that the Métis Council of Canada card entitled him to Aboriginal rights. The back of the card had Mr. Caissie’s signature and the declaration: “Is Aboriginal under Section 35 of the Canadian Constitution Act, 1982.” However, the Court decided that Mr. Caissie either knew or should have known that the government or courts needed to confirm that he had Aboriginal rights as a Métis person.
Mr. Caissie was found guilty.
View the Decision on CanLII: www.canlii.org/en/nb/nbpc/doc/2012/2012nbpc1/2012nbpc1.html
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