R v Lavigne, 2005 NBPC 8 (CanLII)

This case was heard in the New Brunswick Provincial Court.

Mr. Lavigne was charged with unlawfully possessing a firearm during the closed season and unlawfully hunting moose without a license, both of which violated the New Brunswick Fish and Wildlife Act.

In his defense, Mr. Lavigne argued that he had an Aboriginal right to hunt for food. To decide whether Mr. Lavigne had such a right, the Court had to decide two things. The first was whether Mr. Lavigne could prove that he was Aboriginal for the purposes of the Constitution Act, 1982. The second was whether Mr. Lavigne had an Aboriginal right to hunt for moose during the closed season and without a license. 

First, the Court considered whether Mr. Lavigne could prove that he was Aboriginal. Section 35 of the Constitution Act, 1982 recognizes and affirms the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada. This section also defines Aboriginal people as being Indian, Métis, or Inuit. Mr. Lavigne argued that he was Indian. Courts often accept that an individual is Indian if they have Indian status under the federal Indian Act. However, Mr. Lavigne did not have status. As such, to decide whether Mr. Lavigne should be considered an Indian, the Court applied the criteria that had been set out in R v Fowler (J) (1993), 1993 CanLII 15520 (NB PC) and R v Powley, 2003 SCC 43 (CanLII). Based on these cases, Mr. Lavigne needed to establish a “sufficient and substantial connection” to an Aboriginal community. To do this, Mr. Lavigne provided evidence that he had Aboriginal ancestry, self-identified as Indian, and enjoyed community acceptance at a local level in the Pabineau Falls First Nation community. The Court decided that there was enough evidence to establish that Mr. Lavigne was Aboriginal for the purposes of the Constitution Act, 1982. 

The Court then had to decide whether Mr. Lavigne had an Aboriginal right to hunt for food that was protected under the Constitution Act, 1982. The Court used a five-step legal test laid out in in Gray v R, 2004 NBCA 57 (CanLII) and R v Sappier and Polchies, 2004 NBCA 56 (CanLII) to answer this question. 

First, the Court had to identify the nature of the Aboriginal right being claimed, and it established that Mr. Lavigne was not hunting for commercial purposes, but rather was claiming the right to hunt moose, fish, and deer for the use of himself and his family.

Second, the Court had to decide whether the right Mr. Lavigne claimed to have was specific to a certain place. The Court held that Mr. Lavigne was claiming the right to hunt specifically on Crown lands that had been traditionally occupied by the Mi’kmaq. 

Third, the Court had to determine whether Mr. Lavigne had provided enough evidence to establish that hunting for oneself and one’s family was a practice that existed prior to contact with Europeans. The Court decided that Mr. Lavigne had successfully proved this. 

The fourth thing the Court had to determine was whether the practice of hunting for oneself and one’s family was integral to the distinctive culture of the Mi’kmaq at the relevant moment in history (prior to contact with Europeans). The Court held that it was.

Finally, Mr. Lavigne had to establish that his hunting was a continuation of the hunting that the Mi’kmaq practiced prior to contact with Europeans. Courts have found that this step can be satisfied even if the practice has evolved from how it was practiced in the past. A “modern expression” of an ancestral practice can be enough to establish continuity. The Court decided that Mr. Lavigne’s practice of hunting with a gun was a modern expression of traditional Mi’kmaw hunting practices. 

The Court decided that Mr. Lavigne’s hunting satisfied all five requirements. The Court ruled that Mr. Lavigne was an Aboriginal person and that he had been exercising an Aboriginal right. He was found not guilty.

This decision was later appealed in R v Lavigne, 2007 NBQB 171 (CanLII).

View the Decision on CanLII: www.canlii.org/en/nb/nbpc/doc/2005/2005nbpc8/2005nbpc8.html

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