Myran v. R., [1976] 2 SCR 137

Supreme Court of Canada

Myran v. R., [1976] 2 S.C.R. 137

Date: 1975-06-26

Joseph Myran, James Meeches, Dorene Meeches and Ruth Myran Appellants;

and

Her Majesty The Queen Respondent.

1975: May 21; 1975: June 26.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Indians—Hunting rights—Accused hunting without due regard for safety of others in vicinity—Whether immune from prosecution by terms of para. 13 of Memorandum of Agreement approved under The Manitoba Natural Resources Act, R.S.M. 1970, c. N30—The Wildlife Act, R.S.M. 1970, c. W140, s. 10(1).

Trespass—Hunters entering private property without owner’s permission—Question of right of access.

The appellants, Treaty Indians, were each convicted on the charge of hunting without due regard for the safety of others in the vicinity, contrary to the provisions of s. 10(1) of The Wildlife Act, R.S.M. 1970, c. W140, and the convictions were affirmed on appeal by trial de novo in the County Court and by the Court of Appeal for Manitoba. With leave, the appellants appealed to this Court.

It was common ground that the accused were hunting for food and there was no doubt that they were doing so without due regard for the safety of others in the vicinity. They were deer hunting shortly before midnight in an alfalfa field belonging to a farmer who was awakened by the sound of rifle shots and by a light flashing through the window of his bedroom. The range of the weapon was close to two miles; within range were farm houses, highways, railways, pastureland, a town and a breeding station. The convictions were, therefore, properly entered unless it could be said that the accused were immune from prosecution by the terms of para. 13 of the Memorandum of Agreement dated December 14, 1929, set out in the Schedule of The Manitoba Natural Resources Act, R.S.M. 1970, c. N30.

Held: The appeals should be dismissed.

There is no irreconcilable conflict or inconsistency in principle between the right to hunt for food assured under para. 13 of the Memorandum of Agreement

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approved under The Manitoba Natural Resources Act and the requirement of s. 10(1) of The Wildlife Act that such right be exercised in a manner so as not to endanger the lives of others. The first is concerned with conservation of game to secure a continuing supply of food for the Indians of the Province and protect the right of Indians to hunt for food at all seasons of the year; the second is concerned with risk of death or serious injury omnipresent when hunters fail to have due regard for the presence of others in the vicinity. Thus, s. 10(1) does not restrict the type of game, nor the time or method of hunting, but simply imposes on every person a duty of hunting with due regard for the safety of others.

On the question concerning the phrase “right of access” in para. 13, although the point did not fall squarely for decision in this appeal, there was considerable support for the view that in Manitoba at the present time hunters enter private property with no greater rights than other trespassers; that they have no right of access except with the owner’s permission; and, lacking permission, are subject to civil action for trespass and prosecution under s. 2 of The Petty Trespasses Act, R.S.M. 1970, c. P50.

Prince and Myron v. The Queen, [1975] S.C.R. 81, applied; Daniels v. The Queen, [1968] S.C.R. 517; R. v. Wesley, [1932] 2 W.W.R. 337, referred to.

APPEALS from a judgment of the Court of Appeal for Manitoba[1], affirming a judgment of Kerr Co. Ct. J. Appeals dismissed.

M.F. Garfinkel and A.J. Conner, for the appellants.

A.G. Bowering, for the respondent.

The judgment of the Court was delivered by

DICKSON J.—The appellants, Treaty Indians from the Long Plain Indian Reserve in the Province of Manitoba, were each convicted on the charge of hunting without due regard for the safety of other persons in the vicinity, contrary to the provisions of s. 10(1) of The Wildlife Act, R.S.M, 1970, c. W140, and the convictions were affirmed on appeal by trial de novo in the County Court and by the Court of Appeal for Manitoba.

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Leave to appeal to this Court was granted on June 4, 1973.

There can be no doubt the accused were hunting without due regard for the safety of others in the vicinity. They were deer hunting shortly before midnight in an alfalfa field belonging to a farmer who was awakened by the sound of rifle shots and by a light flashing through the window of his bedroom. The range of the weapon was close to two miles; within range were farm houses, highways, railways, pastureland, a town and a breeding station. The convictions were, therefore, properly entered unless it can be said that the accused are immune from prosecution by the terms of para. 13 of the Memorandum of Agreement dated December 14, 1929, set out in the Schedule of The Manitoba Natural Resources Act, R.S.M. 1970, c. N30, which reads:

In order to secure to the Indians of the Province the continuance of the supply of game and fish for their support and subsistence, Canada agrees that the laws respecting game in force in the Province from time to time shall apply to the Indians within the boundaries thereof, provided, however, that the said Indians shall have the right, which the Province hereby assures to them, of hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access.

Section 46(1) of The Wildlife Act, supra, reads:

Nothing in this Act reduces, or deprives any person of, or detracts from, the rights and privileges bestowed upon him under paragraph 13 of the Memorandum of Agreement approved under The Manitoba Natural Resources Act.

The history of para. 13 quoted above and of its Alberta counterpart will be found respectively in the judgment of Mr. Justice Judson in this Court in Daniels v. White and The Queen[2], and in the judgment of Mr. Justice McGillivray in the Appellate Division of the Supreme Court of Alberta in Rex v. Wesley[3]. The case, however, which bears

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more directly upon the issue raised in the present appeal is Prince and Myron v. The Queen[4]. In Prince and Myron the appellants, Treaty Indians, were charged with unlawfully hunting big game by means of night lights, contrary to The Game and Fisheries Act of Manitoba, R.S.M. 1954, c. 94, and it fell to the Court to consider what was meant by “… the right… of hunting… game… for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access”. It was common ground in that case, as in the instant case, that the accused were hunting for food. The majority position in the Manitoba Court of Appeal was expressed by Miller C.J.M.[5], who said in the course of his judgment, pp. 238-9:

The point is: Just what restrictions in The Game and Fisheries Act do apply to Indians? It seems to me that the manner in which they may hunt and the methods pursued by them in hunting must, of necessity, be restricted by the said Act. Mr. Pollock, counsel for the Indians, argued that they were only restricted by the provisions of The Game and Fisheries Act when hunting for sport or commercial purposes. I can only say that I am unable to read any such provision into sec. 13 of The Manitoba Natural Resources Act. I do not think Indians are debarred from hunting for food during any one of the 365 days of any year, and can hunt for food on all unoccupied crown lands and on any land to which Indians have a right of access. I am of the opinion, though, that they have no right to adopt a method or manner of hunting that is contrary to The Game and Fisheries Act, because sec. 13 of The Natural Resources Act specifically provides that the Game Act of the province shall apply to Indians in some respects.

Freedman J.A., as he then was, giving the reasons for the minority, stated, p. 242:

The fundamental fact of this case, as I see it, is that the accused Indians at the time of the alleged offence were hunting for food. It was not a case of hunting for sport or for commercial purposes. By sec. 72(1) of The Game and Fisheries Act, RSM, 1954, ch. 94, and by sec. 13 of The Manitoba Natural Resources Act, RSM, 1954, ch. 180, the special position of the Indian when hunting for food is acknowledged and recognized. The clear purpose of those sections is to secure to the Indi-

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ans, within certain given territories the unrestricted right to hunt for game and fish for their support and sustenance. The statement in sec. 13 of The Manitoba Natural Resources Act that the law of the province respecting game and fish shall apply to the Indians is, in my view, subordinate in character. Its operation is limited to imposing upon the Indian the same obligation as is normally imposed upon every other citizen, namely, that when he is hunting for sport or commerce he must hunt only in the manner and at the times prescribed by the Act. But the ordinary citizen does not hunt for food for sustenance purposes. The Indian does, and the statute, recognizing his right to sustenance, exempts him from the ordinary game laws when he is hunting for food in areas where he is so permitted.

The judgment of this Court was delivered by Hall J., supra, who adopted the reasons of Freedman J.A. in his dissenting judgment in the Court of Appeal, and also adopted the following statement by McGillivray J.A. in Rex v. Wesley, supra:

“If the effect of the proviso is merely to give to the Indians the extra privilege of shooting for food “out of season” and they are otherwise subject to the game laws of the province, it follows that in any year they may be limited in the number of animals of a given kind that they may kill even though that number is not sufficient for their support and subsistence and even though no other kind of game is available to them. I cannot think that the language of the section supports the view that this was the intention of the law makers. I think the intention was that in hunting for sport or for commerce the Indian like the white man should be subject to laws which make for the preservation of game but, in hunting wild animals for the food necessary to his life, the Indian should be placed in a very different position from the white man who, generally speaking, does not hunt for food and was by the proviso to sec. 12 reassured of the continued enjoyment of a right which he has enjoyed from time immemorial.”

I think it is clear from Prince and Myron that an Indian of the Province is free to hunt or trap game in such numbers, at such times of the year, by such means or methods and with such contrivances, as he may wish, provided he is doing so in order to obtain food for his own use and on unoccupied Crown lands or other lands to which he may have a right of access. But that is not to say that he has the right to hunt dangerously and without regard for the safety of other persons in

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the vicinity. Prince and Myron deals with “method”. Neither that case nor those which preceded it dealt with protection of human life. I agree with what was said in the present case by Mr. Justice Hall in the Court of Appeal for Manitoba:

In the present case the governing statute is The Wildlife Act, supra, and in particular Sec. 41(1) thereof. Section 10(1) under which the accused were charged does not restrict the type of game, nor the time or method of hunting, but simply imposes a duty on every person of hunting with due regard for the safety of others. Does that duty reduce, detract or deprive Indians of the right to hunt for food on land to which they have a right of access? If one regards that right in absolute terms the answer is clearly in the affirmative; but is that the case? Surely the right to hunt for food as conferred or bestowed by the agreement and affirmed by the statute cannot be so regarded. Inherent in the right is the quality of restraint, that is to say that the right will be exercised reasonably. Section 10(1) is only a statutory expression of that concept, namely that the right will be exercised with due regard for the safety of others, including Indians.

In my opinion there is no irreconcilable conflict or inconsistency in principle between the right to hunt for food assured under para. 13 of the Memorandum of Agreement approved under The Manitoba Natural Resources Act and the requirement of s. 10(1) of The Wildlife Act that such right be exercised in a manner so as not to endanger the lives of others. The first is concerned with conservation of game to secure a continuing supply of food for the Indians of the Province and protect the right of Indians to hunt for food at all seasons of the year; the second is concerned with risk of death or serious injury omnipresent when hunters fail to have due regard for the presence of others in the vicinity. In my view the Court of Appeal for Manitoba properly answered in the negative the question upon which leave to appeal to that Court was granted, namely:

Did the learned trial judge err in holding that paragraph 13 of the Schedule of The Manitoba Natural Resources Agreement Act, 1930, did not provide immunity to the accused from the restrictions on hunting set out in The Wildlife Act, and specifically section 10(1) thereof.

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Another question which arose during argument of this appeal concerns the words “any other lands to which the said Indians may have a right of access”, found in para. 13. There may be differing opinions on whether the finding of the trial judge that the accused had a right of access to the lands upon which they were hunting when apprehended can be impeached in this Court, but the leave to appeal was not limited to the single question before the Court of Appeal and, having regard to the concern among farmers to which, we were told, the majority judgment of the Manitoba Court of Appeal in the earlier case of Prince and Myron has given rise, I think it may be opportune and appropriate to make some observations upon the phrase “right of access” on the occasion of, though not as a ground of decision of, the present appeal. The complainant in the present case, Mr. Baron, had not given the accused permission to be on his land for hunting or any other purpose; they were not known to him. His lands were not posted. Subsections (1) and (2) of s. 40 of The Wildlife Act of Manitoba read as follows:

40(1). The owner or lawful occupant of any land other than Crown land may give notice that the hunting and killing of wildlife or exotic animals is forbidden on or over the land or any part thereof by posting and maintaining signs of at least one square foot in area on or along the boundary of the land facing away from the land at intervals of not more than two hundred and twenty yards with the words “Hunting by Permission Only” or “Hunting Not Allowed” or words to the like effect.

40(2). A person who hunts wildlife or exotic animals upon or over any land in respect of which notice is given as prescribed in Subsection (1) without the consent of the owner or lawful occupant thereof, is guilty of an offence and is liable, on summary conviction on private prosecution, to a fine not exceeding two hundred dollars or to imprisonment for a term not exceeding one month, or to both such a fine and such imprisonment.

When the charges against the present accused were heard in the first instance, the Magistrate said:

In the instant case there is no evidence before me of any prohibition from hunting upon the land of the complainant and it is my respectful opinion that the four accused persons had a right of access for the purpose of hunting.

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On the trial de novo the County Court judge made no reference to right of access. He considered there were two issues only, first, hunting, and second, hunting dangerously; and he held against the accused on both issues. In the Court of Appeal, Mr. Justice Hall, on behalf of the Court, said:

Having regard to the limited nature of the appeal we feel bound to accept the implicit findings of the trial Judge that the accused were Treaty Indians and that, at the time, they were hunting for food on lands to which they had a right of access.

It would seem that the Magistrate, as a matter of law, found the accused had a right of access to the farm lands upon which they were hunting and that this finding was accepted by the Court of Appeal. The law which supports this position is said to derive from the statement of Miller C.J.M. in Regina v. Prince and Myron, supra; the learned Chief Justice, after quoting subss. 76(1) and (2) of The Game and Fisheries Act, the earlier counterpart of subss. 40(1) and (2) of The Wildlife Act, continued, p. 238:

I am satisfied that unless notices are posted on the land pursuant to sec. 76(2) a person has access thereto for shooting purposes. It is true that the owner or occupant might specifically warn people off the land and, if this were done, the person intending to shoot, whether he be Indian or not, would be prohibited from going on that land to shoot and would not be deemed to have access thereto, but in the absence of a prohibition, either by notice or otherwise, the Indians would have access to the land upon which they were found hunting. The fact that the land was cultivated does not make any difference. The fact that the common-law rights as to trespass are preserved does not make any difference to the right of access above mentioned.

In this Court there was an admission that the accused Prince and Myron had a right of access to the land in question. Hall J., for the Court, stated at p. 83, [1964] S.C.R.:

It was admitted in this Court that at the time in question in the charge the appellants were Indians; that they were hunting deer for food for their own use and that they were hunting on lands to which they had the right of access. These admissions are fundamental to the determination of this appeal.

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Thus the issue was not argued in this Court and the point was not decided.

It is unnecessary in the present case to express any concluded view on the point, but I must say that if the quoted words of Miller C.J.M. are a correct statement of the law, the results are far-reaching; any person can enter any land in Manitoba which is not posted and hunt thereon without permission of the owner, at least until ordered off; the carrying of a fire-arm immunizes an act which would otherwise be trespass. I would have grave doubt that this can be the law. Section 40 of The Wildlife Act does not deal with interests in property. It is intended, I would have thought, to create a separate offence under the provincial statute in respect of posted lands and not to confer entry rights in respect of unposted lands. Posting of land and maintaining signs is a tiresome and costly business the purpose of which is to identify the land as private property, to discourage hunters and to underpin a s. 40(2) charge against those who enter without permission. A Manitoba farmer is surely not to be faced, by reason of the enactment of s. 40(1) of The Wildlife Act, with the choice of either posting his land or suffering the entry of those who would hunt his land without permission. With great respect, in my opinion the majority of the Manitoba Court of Appeal in Prince and Myron v. The Queen may have erred in their view of the import of s. 76 of The Game and Fisheries Act, the antecedent of s. 40, in failing to appreciate the importance of s. 76(4) reading:

76. (4) Nothing in this section limits or affects the remedy at common law of any such owner or occupant for trespass.

strengthened in s. 40(4) of The Wildlife Act to include statutory remedies:

40(4). Nothing in this section limits or affects any rights or remedies that any person has at common law or by statute for trespass in respect of land.

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Miller C.J.M. did recognize that an owner could demand that hunters leave his property. In this way, he acknowledged that the “right of access” was a qualified right, however he would accord to hunters a special status and access rights above and beyond the ordinary trespasser. Although the point does not fall squarely before us for decision in this appeal, I think it can properly be said that there is considerable support for the view that in Manitoba at the present time hunters enter private property with no greater rights than other trespassers; that they have no right of access except with the owner’s permission; and, lacking permission, are subject to civil action for trespass and prosecution under s. 2 of The Petty Trespasses Act, R.S.M. 1970, c. P50. The question of right of access will normally have to be decided in each particular case, as a question of fact and not one of law, on the totality of the evidence in the case.

I would dismiss the present appeals.

Appeals dismissed.

Solicitors for the appellants: Pollock & Conner, Winnipeg.

Solicitor for the respondent: Attorney General for Manitoba, Winnipeg.