This case was an appeal of the decision in R. v. Bernard, 2000 CarswellNS 420, and it was heard in the Nova Scotia Supreme Court.
The appellant, Mr. Bernard, was a Mi’kmaw man. At trial, Mr. Bernard was found guilty of “deer jacking” under section 68 of the Nova Scotia Wildlife Act. Although the trial judge accepted that Mr. Bernard had an Aboriginal right to hunt for sustenance, the Court held that section 68 of the Wildlife Act did not infringe that right, because the purpose of the provision was safety. Alternatively, the Court held that even if section 68 did infringe Mr. Bernard's Aboriginal right, that infringement was justified for the same safety reasons.
Mr. Bernard appealed to the Nova Scotia Supreme Court ("NSSC"). The NSSC held that the trial judge had erred in finding that the purpose of section 68 of the Wildlife Act is safety. The NSSC found that the purpose of section 68 is ambiguous, with goals such as conservation and maintaining the sport ethic of hunting being equally likely. The Court held that “Aboriginal rights are to be interpreted generously and liberally in favour of aboriginals”, and it held that the ambiguity in the Wildlife Act should be resolved Mr. Bernard's favour. The Court held that section 68 of the Wildlife Act did infringe Mr. Bernard's Aboriginal right to hunt for sustenance, and it overturned the convinction and replaced it with an acquittal.
The Crown appealed the NSSC's decision, and the case went to the Nova Scotia Court of Appeal in R v Bernard, 2002 NSCA 5.