R. v. Powley

 Between

  Her Majesty the Queen, 
appellant, 

and

        Steve Powley and Roddy Charles Powley, 
respondents

 [2000] O.J. No. 99
 Court File No. 5799/99

  Ontario Superior Court of Justice
    Sault Ste. Marie, Ontario
  O'Neill J.
    Heard:  October 12 and 13, 1999.
   Judgment:  January 19, 2000.
 (95 paras.)\

 Counsel:
      J. Teillet, for the respondents.                                                           No counsel mentioned for the appellant.

      O'NEILL J.

I.   INTRODUCTION

 [# 1]     This is an appeal pursuant to s. 116 of the Provincial Offences Act, R.S.O. 1990, c. P.33 ["Provincial Offences Act"] from a dismissal of charges against the respondents on December 21, 1998.  The respondents were charged with offences under ss. 46 and 47(1) of the Game and Fish Act, R.S.O. 1990, c. G.1 ["Act"]:  unlawfully hunt moose and unlawfully possess game, to wit:  a bull moose or parts thereof, hunted in contravention of the Act.  The learned judge, dismissed the charges on the ground that the respondents have an aboriginal right to hunt as Métis which is protected under s. 35(1) of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ["Constitution Act"] and that ss. 46 and 47(1) of the Act were unjustifiable infringements of that right.

 [# 2]     The offences took place at approximately 9:00 a.m. on October 22nd, 1993 when Steve Powley and his son, Roddy Charles Powley killed a bull moose near Old Goulais Bay Road near the City of Sault Ste. Marie.  The Powleys did not, at that time, possess valid Ontario outdoor cards or valid licences to hunt moose.  Steve and Roddy Powley both admit that they hunted moose without a licence and that they knowingly possessed game (a bull moose).

 [# 3]     Section 121 of the Provincial Offences Act, set s out the powers of this court on an appeal from an acquittal:

      S. 121:  Where an appeal is from an acquittal, the court may by order,

(i)  order a new trial; or
(ii)  enter a finding of guilt with respect to the offence of which, in its opinion, the person who has been accused of the offence should have been found guilty, and pass a sentence that is warranted in law.  R.S.O. 1980, c. 400, s. 104.

 [# 4]     Section 125 also provides that "Where a court exercises any of the powers conferred by sections 117 to 124, it may make any order, in addition, that justice requires."
 

VI.  Disposition

 [# 95]     For all of these reasons, I would dismiss the appellant's appeal, varying only as stated, the trial judge's definition of Métis for the purposes of identifying and affirming site-specific aboriginal rights.  Although, in accordance with s. 125 of the Provincial Offences Act, supra, this court "may make any order, in addition, that justice requires", while I have expressed my view as to the need, and requirement for, negotiations, given my disposition of the within appeal, it is not necessary that an order to this effect be made in this case.