This appeal of R v Bernard, 2016 NBQB 21 was heard in the New Brunswick Court of Appeal.
Mr. Bernard was found guilty of having hunted deer without a valid licence, in contravention of the New Brunswick Fish and Wildlife Act. He was sentenced to the minimum penalty, which was seven days in jail and a $2,000 fine.
Though Mr. Bernard was dismissed on appeal, the court decided to permanently stay the execution of the sentence, meaning that the sentence would not be enforced. Despite this, Mr. Bernard challenged the dismissal of his appeal.
The issue at trial was whether Mr. Bernard was exercising an Aboriginal right protected by s. 35(1) of the Constitution Act, 1982, when he hunted without a licence. Mr. Bernard is Mi’kmaw and a member of the Sipekne’katik First Nation.
One element he had to prove, was that a contemporary Mi’kmaq community exercised the right to hunt for food. Second, he had to prove that he is a member of that community. The trial court concluded it had not been shown that Mr. Bernard had an ancestrally based membership in a contemporary Mi’kmaq community that exercised hunting rights at the location in question.
Mr. Bernard claimed it was an error to consider his ancestry in this way, and alleged that the court of appeal made a legal mistake when it chose not to overturn the trial judge’s decision. However, the trial court and the Court of Appeal demonstrated an adherence to the principles set out by the Supreme Court of Canada concerning the Aboriginal right to hunt under s. 35(1) of the Constitution Act.
While the court permitted Mr. Bernard to appeal the decision, it ultimately dismissed the appeal. As the lower level appeal court had already paused the sentence, Mr. Bernard did not serve the sentence given by the trial judge.
View the Decision on CanLII: 2017 NBCA 48 (CanLII) | Bernard v. R. | CanLII
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