[para13] In this case, the Crown must prove the offences beyond a reasonable doubt and the Powleys must establish their defence of aboriginal right on a balance of probabilities.
[para14] In R. v. Morin (B.A.) et al. (1997), 159 Sask. R. 161 at para. 37, Laing J. stated that:
ì... With respect to the offence(s) alleged, the burden of proof is on the prosecution. With respect to the constitutional defence of aboriginal right, the burden is on the accused to establish that the right claimed was an integral practice, custom, or tradition of central significance to the aboriginal society in question. (Vide: R. v. Van der Peet [1996] 2 S.C.R. 507, at p. 553).î
[para15] In the case of Attorney-General for Ontario v. Bear Island Foundation et al (1984), 49 O.R. (2d) 353, the Court noted that ;
"Hence, the onus is on the defendants to adduce evidence to prove on a balance of probabilities:
(1) the nature of the aboriginal rights enjoyed at the relevant dates (1763 or the coming of settlement);
(2) the existence of an organized social organization and the fact that it exercised exclusive occupation of the Land Claim Area, thereby exercising its aboriginal rights. Included would be proof that there was an organized system of landholding and a system of social rules and customs distinct to the band;
(3) the continuity of the exclusive occupation to the date of the commencement of the action."
[para16] The Bear Island (supra) case deals with aboriginal land claims and accordingly the specific list of criteria outlined by the Court must be considered in light of the particular right being claimed in that case. The issues specific to the Powleys aboriginal right to hunt will be examined in the course of this judgment.
[para17] The agreed statement of facts (Exhibit #1) addresses the
Crown's onus with respect to proving the offences beyond a reasonable doubt.
The issue for the court to decide is whether the Powleys have established
their aboriginal claim on a balance of probabilities.
|
|
|||
|
|
|
|
|
|
|
|||
|
|
|
|
|
|
|
|||