This case was heard in the New Brunswick Court of Queen’s Bench, Trial Division. It was an appeal of the decision in R v McCoy, 1991 CanLII 12196 (NB PC).

The respondent, Leslie McCoy, was charged with hunting with the aid of a light, which violated section 33(i)(b) of the New Brunswick Fish and Wildlife Act. Mr. McCoy had been acquitted after successfully arguing that he had Aboriginal and treaty rights to hunt which were violated by the Act. In this appeal, the Crown argued that the trial judge had erred in deciding that Mr. McCoy’s Aboriginal and treaty rights were violated by the Act. 

In this case, the Court first affirmed that Mr. McCoy had Aboriginal and treaty rights to hunt in the province of New Brunswick. Section 35 of the Constitution Act, 1982 recognizes and affirms the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada. Courts have interpreted this as meaning that section 35 only protects Aboriginal and treaty rights that existed at the time the Constitution Act, 1982 came into force. The Court found that there was no evidence that any Aboriginal and treaty rights Mr. McCoy argued he possessed had been extinguished between the time of European control of the territory and the coming into force of section 35 of the Constitution Act, 1982. The Court also found that the Fish and Wildlife Act had violated those rights by creating legislation which infringed upon these Aboriginal and treaty rights without consulting the affected Indigenous communities. This meant that the Crown had not met the standard that had been set in R v Sparrow, 1990 CanLII 104 (SCC).

The appeal was dismissed.

The government sought leave to appeal this decision (asked the New Brunswick Court of Appeal if it would hear and decide on the case) in R v McCoy, 1993 CanLII 9345 (NB CA).

View the Decision on CanLII: https://www.canlii.org/en/nb/nbqb/doc/1992/1992canlii6298/1992canlii6298.html

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