This motion was heard before the New Brunswick Court of Queen’s Bench, Trial Division, and followed the decision in R v Sappier and Polchies, 2003 NBPC 2.

At trial, the Respondents, Dale Sappier and Clark Polchies, were found not guilty of possessing timber taken from government lands contrary to the New Brunswick Crown Lands and Forest Act. They had successfully relied on a treaty rights argument at trial and, following that decision, the government sought to appeal it.

This motion was concerned with an error that Crown counsel made in their preliminary notice of appeal. Specifically, the date of the last day that the government could file their appeal was incorrectly listed as February 20th, 2003, instead of February 19th, 2003. The government requested  a Court order that would retroactively fix the error, and it also asked to be granted an extra fifteen days to file the appeal. The order was ultimately granted, with the Court finding that the government had shown a valid interest in pursuing the appeal, that it could account for the error (it was determined to be an honest mistake), and that the appeal had merit, representing a matter of public interest as the first case in New Brunswick to deal with issues raised by treaty rights to harvest timber.

After this decision, the matters raised were brought before the Courts again in the following decisions: R v Sappier and Polchies, 2003 NBQB 389, R v Sappier and Polchies, 2004 NBCA 56, Gray v R, 2004 NBCA 57, Gray v R, 2004 CanLII 47133 (NB CA), and R v Sappier; R v Gray, [2006] 2 SCR 686, 2006 SCC 54.

View the Decision on CanLII: www.canlii.org/en/nb/nbqb/doc/2003/2003nbqb228/2003nbqb228.html

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