This case was heard in the Nova Scotia Court of Appeal.

The appellants, Aaron Paul and Charles Francis, were charged with hunting at night with illumination (“deer jacking”). Deer jacking violated section 68 of the Nova Scotia Wildlife Act. The appellants had been convicted of this charge in R v Paul, 2013 NSPC 75 (CanLII). They appealed that decision in Paul v R, 2016 NSSC 99 (CanLII). Their appeal was dismissed. In the current case, the appellants appealed their conviction once again.

There were four issues raised in this case. First, the appellants argued that the lower courts were incorrect when they found that their Aboriginal right to hunt as Mi’kmaw individuals did not include the right to hunt at night with a light. However, the Court upheld this finding because historic evidence suggested that torches had only been used to hunt fish and birds, not large game like deer. Second, the appellants argued that the lower Courts had made a mistake in finding that their Aboriginal rights had not been infringed. The Court rejected this argument. It held that deer jacking was a dangerous activity, and that based on R v Bernard, 2002 NSCA 5 (CanLII), regulation of an activity for valid safety concerns would not violate an Aboriginal right to hunt. Third, the appellants argued that the lower Courts had been incorrect when they found that even if their Aboriginal right to hunt was infringed, the infringement would be justified. The Court rejected this argument, reasoning that even if regulation of an activity for safety concerns could be considered an infringement of an Aboriginal right, this regulation would be justified because of its important purpose. Finally, the appellants argued that historic evidence that the Mi’kmaq had not historically hunted large game at night with lights should not be considered by the Court. However, the Court found that the evolution of Aboriginal rights in the modern context requires knowledge of the historic position, so historic evidence must be considered. 

The appeal was dismissed. 

The appellants were also granted leave to appeal to the Supreme Court of Canada 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/nsca/doc/2018/2018nsca70/2018nsca70.html

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