This case was heard in the New Brunswick Court of Appeal. Yvon and Michel Vienneau sought leave to appeal convictions that had been entered by a trial judge.

The Vienneaus were charged with hunting moose during the closed season in violation of section 32(1)(a) of the New Brunswick Fish and Wildlife Act. In response, the Vienneaus argued that they had an Aboriginal right to hunt moose that was protected by section 35 of the Constitution Act, 1982. They had been convicted by the Provincial Court, and the Court of Queen’s Bench had upheld this conviction.

Section 35 of the Constitution Act, 1982 recognizes and affirms the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada. It also defines Aboriginal people as being Indian, Métis, or Inuit. The Vienneaus argued that they were Aboriginal because they were Indian (specifically, Mi’kmaq). To prove that they were Indian, the Vienneaus had to prove three things as set out in the test developed by the Supreme Court of Canada in R v Powley 2003 SCC 43 (CanLII). The Vienneaus needed to prove that they were of Indian ancestry, that they identified as Indian, and that they were accepted by a modern Indian community. Prior to this case, the New Brunswick Provincial Court and Court of Queen’s Bench had both decided that the Vienneaus could not prove that they were Indian for the purpose of the Constitution Act, 1982 because they could not establish community acceptance. 

In the current case, the Vienneaus argued that the lower courts had erred in deciding that they could not prove community acceptance. Specifically, they sought leave to appeal the decision of the Court of Queen’s Bench on the basis that the court had not properly considered their membership in the New Brunswick First People’s Council when deciding if they could prove community acceptance. The Vienneaus argued that the Provincial Court had not properly considered their membership and that the Court of Queen’s Bench had erred in not considering their membership in the New Brunswick First People’s Council at all. In this case, the Court of Appeal decided that it could not grant leave to appeal on this basis. It decided that the Vienneaus had not brought up the issue of their membership when they had appeared before the Court of Queen’s Bench. The Court of Appeal could only grant leave to appeal the decision of the Court of Queen’s Bench based on issues that had actually been raised during the case. 

The Vienneaus’ leave to appeal was dismissed and their convictions were upheld. 

This matter had previously been heard in Vienneau and Vienneau v R, 2014 NBQB 92 (CanLII). 

View the Decision on CanLII: www.canlii.org/en/nb/nbca/doc/2017/2017nbca20/2017nbca20.html

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