R. v. Howse - Part 3

The Pleas and Defense

The defendants pleaded not guilty to all of the charges.  The Crown entered a stay of proceedings on Count 3, which charged Ron Monsen and Dan LaFrance as a party to the offence, primarily because of Monsen's incapacity to attend the trial.

 [#8]     Each of the defendants claim that they are Métis people, who were taking part in an organized Métis hunt for moose and deer to provide winter food for their families.  They say that this right is as basic as an aboriginal right can be.  They say that their aboriginal right to hunt for food has traditionally been exercised by them or their families. They say that their aboriginal right to hunt has not been extinguished, nor limited by the Crown.  The defendants ask that the aforementioned regulations and sections of the Wildlife Act, R.S.B.C. 1996, c. 488 be declared  unconstitutional, both generally and in their application to the defendants.  They have filed a Constitutional QuestionNotice, which provides particulars of the questions asked: namely:

a)   that the accused are Métis and claim an aboriginal inherent, constitutional or treaty right to pursue their historical, economic and cultural traditions in Canada and in British Columbia; and

b)   those historic, economic and cultural traditions include the right to hunt for food in a traditional communal Métis manner; and

c)   Sections 11(1)(a)(1), 11(1)(a)(ii), 11(1)(a)(iii), 26(1)(c), 33(2), and 97(a) of the Wildlife Act, R.S.B.C. 1996, c. 488 do not recognize the inherent, aboriginal, or treaty rights to hunt and gather food and are therefore of no force and effect with respect to the accused as interfering with the aboriginal rights of the accused; and

d)   Section 13(2)(t), Part 2, Schedule 4 of Britishm Columbia Regulation 190/84 enacted pursuant to the Wildlife Act, R.S.B.C. 1996, c. 488, and, Section 16.01(b) British Columbia Regulation 340/82, enacted pursuant to the Wildlife Act, R.S.B.C. 1996, c. 488, Section 9(1)(b) of British Columbia Regulation 134/93, enacted pursuant to Wildlife Act, R.S.B.C. 1996, c. 488, do not recognize the inherent, aboriginal or treaty rights to hunt and gather food and are therefore of no force and effect with respect to the accused as interfering with the aboriginal rights of the accused.

Interpretive Principles (Powley)

 [#9]     In R. v. Powley, [1998] O.J. No. 5310 (Ont. Prov. Ct.) the Honourable Judge Valliancourt reviewed the interpretative principles to be applied when dealing with s35 of the Constitution Act, 1982, in these words:

Courts have applied a purposive analysis in combination with several general principles when dealing with the legal relationship between the Crown and Aboriginal peoples.  These principles include:

 (a) a court must give a generous and liberal interpretation when analyzing the purposes underlying s. 35(1); all treaties; s. 35 itself, and other statutory and constitutional provisions protecting the interests of aboriginal peoples;

(b) the nature of the relationship between the Crown and Aboriginal peoples is fiduciary thereby placing the honour of the Crown at stake;

(c) any doubt or ambiguity must be resolved in favour of the Aboriginal peoples;

(d) courts must be sensitive to the Aboriginal perspective with respect to the rights at stake, and;

(e) since 1982, rights cannot be extinguished but can only be regulated or infringed with the justificatory test as laid out by the Supreme Court in R.v. Sparrow [1990] 1 S.C.R. 1075 (S.C.C.).

Interpretive Principles (Supreme Court)

 [#10]     The Supreme Court of Canada has set out four  steps which all courts must consider in assessing a claim under s. 35 of the Constitution Act, 1982, namely:
 

1). The court must determine whether the claimant has demonstrated that he or she was acting pursuant to an aboriginal right.

2). The court must determine whether that right was extinguished prior to the enactment of s. 35(1) of the Constitution Act, 1982.

3). The court must determine whether that right has been infringed.

4). The court must determine whether the infringement was justified. (See: R. v. Sparrow, (supra).

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