R v Paul, 2013 NSPC 75

This case was heard in the Nova Scotia Provincial Court.

The defendants, Aaron Paul and Charles Francis, were charged with violating section 68 of the Nova Scotia Wildlife Actby night hunting using a light (“deer jacking”). 

The defendants were Mi'kmaq. They argued that they had an Aboriginal right to hunt that was protected by section 35 of the Constitution Act, 1982. The defendants requested a summary dismissal of their case because the Supreme Court of Canada had decided in R v Morris, 2006 SCC 59 (CanLII) that laws banning deer jacking infringed the treaty right to hunt that the defendants in that case had held. In R v Morris, the court held that such legislation was inconsistent with the honour of the Crown in its interactions with Indigenous peoples. However, the Court’s decision in R v Morris was based on the defendants’ treaty rights, not their Aboriginal rights. The Indigenous group involved in R v Morris held a treaty right to hunt with the use of a light. In contrast, the Mi'kmaq had not signed a treaty that protected this right. The Court held that this meant the defendants could have a right to deer jack that was protected by the Constitution Act, 1982 was if they had an Aboriginal right to do so. The Court decided that it could not follow the decision in R v Morris in this case because it did not provide an authority for deciding whether there is an Aboriginal right to deer jack. 

Under the test established in R v Van der Peet, 1996 CanLII 216 (SCC), to prove that they had an Aboriginal right to deer jack, the defendants had to prove that hunting with a night at light was a practice that was historically practiced by the Mi’kmaq and which was integral to the distinctive culture of the Mi’kmaq before contact with Europeans. Several expert witnesses claimed that there was little evidence that the Mi’kmaq had historically hunted this way. Because of this, the Court found that the defendants could not prove that they had an Aboriginal right to deer jack that was infringed by section 68 of the Wildlife Act. The Court also held that even if section 68 did infringe their Aboriginal rights, this infringement would be justified because its purpose was to address safety concerns associated with deer jacking

The defendants were found guilty. This case was later appealed in Paul v R, 2016 NSSC 98 (CanLII)/Paul v R, 2016 NSSC 99 (CanLII). Leave to appeal to the Supreme Court of Canada was also granted in Aaron Paul, et al v Her Majesty the Queen, 2019 CanLII 16461 (SCC). 

View the Decision on CanLII: https://www.canlii.org/en/ns/nspc/doc/2013/2013nspc75/2013nspc75.html

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