R. v. Mousseau, [1980] 2 SCR 89

Supreme Court of Canada

R. v. Mousseau, [1980] 2 S.C.R. 89

Date: 1980-05-06

Her Majesty The Queen Appellant;

and

Lawrence Matthew Mousseau Respondent.

1980: March 24; 1980: May 6.

Present: Martland, Ritchie, Dickson, Beetz, Estey, McIntyre and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Indians—Hunting for food—Unoccupied Crown lands—Right of access to lands—Public road—The Wildlife Act, R.S.M. 1970, c. W140, ss. 19(1), 46(1)—The Manitoba Natural Resources Act, 1930 (Man.), 20 Geo. V, c. 30, 1930 (Can.), 20-21 Geo. V, c. 29, 1930 (U.K.), 20-21 Geo. V, c. 26, para. 13.

The respondent, a treaty Indian, was driving along Provincial Road No. 265, in Manitoba, when he spotted a deer crossing the road. He stopped the car, located the deer with the aid of a handlight and shot it in the ditch. During the year 1976, there was no open season to hunt deer in Manitoba. The respondent, who was then hunting for food, was charged with: i) unlawfully hunting a wild animal during the closed season, contrary to s. 16(1) of The Wildlife Act; and ii) unlawfully at night using lighting or reflecting equipment for the purpose of hunting animals, contrary to s. 19(1) of the same Act. He was convicted in Neepawa Provincial Judges’ Court and the convictions were confirmed on appeal to the Country Court of Minnedosa. On further appeal to the Court of Appeal for Manitoba, the convictions were quashed, Monnin and Guy JJ. dissenting.

Held: The appeal should be allowed.

Section 46(1) of The Wildlife Act expressly preserves and protects the special hunting rights for Indians entrenched in para. 13 of the Memorandum of Agreement, approved under The Manitoba Natural Resources Act. If the respondent, in hunting as he did, was within the scope of para. 13 of the Memorandum of Agreement, then the prohibition in The Wildlife Act did not apply to him, for Indians hunting “for food” are not subject to provincial game laws if hunting on unoccupied Crown lands or on any other lands to which Indians may have a “right of access”. The respondent contended that Indians in Manitoba have a right of access to public roads and, therefore, they may lawfully hunt thereon.

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Paragraph 13 cannot be read as meaning that whenever an Indian can enter unto land for a purpose unrelated to hunting, he can also hunt; to hold otherwise would give the Indians hunting rights at all seasons of the year in all places to which the public has access. The true meaning of para. 13 is that Indians have the right to hunt for food at all seasons of the year on all unoccupied Crown lands, on any unoccupied Crown lands to which the Indians, or other persons, have right of access, by virtue of statute or common law or otherwise, for the purpose of hunting, and on any occupied private lands to which they have right of access by custom, usage, or consent of the owner or occupier, for the purpose of hunting. As hunting is not one of the purposes for which roads are made available and accessible for the use of the public, and as a public road is occupied Crown land, the respondent is not within the scope of para. 13 and was properly convicted in the first instance.

R. v. Wesley (1932), 58 C.C.C. 269; R. v. Smith, [1935] 3 D.L.R. 703; R. ex rel Clinton v. Strongquill (1953), 105 C.C.C. 262; R. v. Little Bear (1958), 122 C.C.C. 173; Harrison v. Duke of Rutland, [1893] 1 Q.B. 142; Hickman v. Maisey, [1900] 1 Q.B. 752, referred to.

APPEAL from a judgment of the Court of Appeal for Manitoba[1], allowing an appeal from a judgment of the County Court of Minnedosa and quashing the convictions. Appeal allowed.

A.G. Bowering and M.J. Conklin, for the appellant.

Harvey I. Pollock, Q.C., M.B. Nepon and Brenda Keyser, for the respondent.

The judgment of the Court was delivered by

DICKSON J.—On the evening of October 15, 1976 at about 9:40 p.m., the respondent, Lawrence Mousseau, a treaty Indian, was driving along Provincial Road No. 265 approximately six miles west of Plumas, Manitoba. He spotted a deer crossing the road and stopped the car. With the aid of a handlight, he located the deer and shot it in the ditch. While he was gutting the animal, police

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arrived on the scene. During the year 1976, there was no open season to hunt deer in Manitoba. Although the agreed statement of facts does not so state, it would seem to be common ground that Mousseau, at the time, was hunting for food, and I approach the case on that basis.

Mousseau was charged with: (i) unlawfully hunting a wild animal during the closed season, contrary to s. 16(1) of The Wildlife Act, R.S.M. 1970, c. W140; and, (ii) unlawfully at night using lighting or reflecting equipment for the purpose of hunting animals, contrary to s. 19(1) of the same Act. He was convicted in Neepawa Provincial Judges’ Court and the convictions were confirmed on appeal to the County Court of Minnedosa. On further appeal to the Court of Appeal for Manitoba (Monnin and Guy JJ.A. dissenting), the convictions were quashed.

Section 46(1) of The Wildlife Act expressly preserves and protects the special hunting rights for Indians entrenched in para. 13 of the Memorandum of Agreement, approved under The Manitoba Natural Resources Act, 20 George V, c. 30. Section 46(1) 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 Memorandum of Agreement was entered into between the Dominion and the Province of Manitoba at the time of the transfer from the Dominion to the Province of the natural resources within the Province. It was affirmed by the Legislature of the Province, by c. 30 of the Statutes of 1930, and by the Parliament of Canada, by c. 29 of the Statutes of Canada 1930. It was also affirmed by the Parliament of the United Kingdom by the British North America Act, 1930, 20-21 George V (U.K.), c. 26.

If Mousseau, in hunting as he did, was within the scope of para. 13 of the Memorandum of Agreement, then the prohibitions in The Wildlife Act did not apply to him. Paragraph 13 reads:

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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.

The general import of para. 13 is to make applicable to the Indians within the province, in the interests of securing continued supply of game and fish for their support and subsistence, the provincial game laws from time to time in force in the province. There is, however, an important proviso to the foregoing. Indians hunting, trapping and fishing game and fish “for food” are not subject to provincial game laws if hunting, trapping, or fishing, on (i) unoccupied Crown lands, or (ii) on any other lands to which Indians may have a “right of access”. In the present appeal, the extent of the territorial limitation of the proviso is the issue, more particularly whether, within the meaning of para. 13, it be said that a provincial road is unoccupied Crown land or other land to which Indians have a right of access.

When the Crown in the right of the province appropriated or set aside land for the purpose of Provincial Road No. 265, it is difficult to regard that land thereafter as unoccupied Crown lands within the meaning of para. 13, and, indeed, counsel for Mousseau did not advance any such submission. His principal argument was to the effect that Indians in Manitoba have a right of access to public roads and road allowances and, therefore, pursuant to para. 13 of the Agreement, they may lawfuly hunt thereon.

What is meant by the phrase “any other lands to which the said Indians may have a right of access”? The cases to which the Court has been referred are not of particular assistance. In the

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first of these, R. v. Wesley[2], there is, however, an excellent historical review of Indian hunting rights by the late Mr. Justice McGillivray. Speaking for a majority of the court, he said:

…Indians hunting for food may kill all kinds of wild animals regardless of age or size wherever they may be found on unoccupied Crown lands or other lands to which they have a right of access, at all seasons of the year and that they may hunt such animals with dogs or otherwise as they see fit and that they need no license beyond the language of s. 12 to entitle them so to do. (at p. 277)

In Wesley, the court was called upon to interpret s. 12 of the Memorandum of Agreement affirmed in The Alberta Natural Resources Act, 1930, (Alta.) c. 21. Section 12 of the Alberta Memorandum of Agreement is in identical language to s. 13 of the Manitoba agreement. In Wesley, the accused had been charged with three infractions of the Alberta Game Act, R.S.A. 1922, c. 70, namely, hunting and killing a male deer having horns or antlers less than four inches in length, hunting deer without a licence, and hunting deer with dogs. The case is of limited assistance in any discussion of the concluding words of para. 13, as it was admitted that the alleged offences took place on unoccupied Crown land.

The next case to which we were referred is R. v. Smith[3]. A treaty Indian, named John Smith, Jr., was charged with carrying firearms on Fort La Corne Game Preserve in Saskatchewan. Section 69(1) of The Game Act, R.S.S. 1930, c. 208, of that province prohibited shooting, hunting, trapping or carrying of firearms within the preserve. It fell to the court to interpret para. 12 of the Saskatchewan Memorandum of Agreement, identical to para. 13 of the Manitoba agreement. It was contended by the late J.G. Diefenbaker, counsel for the accused, that the game preserve was land to which the Indians had a right of access, and they were authorized to shoot on it because of that right. To that argument, Turgeon J.A. (McKenzie J.A. concurring) had this to say:

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…Any so called “right” of access which the Indians may enjoy in respect to this preserve is, so far as we were shown, merely the privilege accorded to all persons to enter the preserve without carrying firearms. We were not told of any special, peculiar right of access to this preserve conferred upon or enjoyed by the Indians. The Indians assuredly have a peculiar right of access to certain Crown lands, as, for instance, the reservations upon which they live and which are vested in the Crown, but it does not appear that they have any similar right of access to the land comprising this preserve. (at p. 707)

The other member of the court, Martin J.A., joined in dismissing the appeal. Discussing the right of access of Indians to the game preserve, he said:

…Indians undoubtedly have a right of access to certain reserves set apart for them and upon which they reside, but they have no right of access to game preserves beyond that accorded to all other persons and they are subject, as all persons are, to the provisions of s. 69 of The Game Act. (at p. 710)

The third case is R. ex rel. Clinton v. Strongquill[4]. A treaty Indian, hunting for food, killed a moose in Porcupine Forest Reserve during a time when hunting for game other than moose was permitted under a provincial hunting licence. Again, para. 12 of the Saskatchewan agreement fell to be considered. A majority of the court (Gordon, Procter and McNiven, JJ.A.; Martin, C.J.S. and Culliton J.A., dissenting) quashed the conviction. Mr. Justice Gordon distinguished R. v. Smith, supra, on the ground that Porcupine Forest Reserve was not in the same case as a game preserve where hunting was absolutely prohibited. On the day of Strongquill’s alleged offence, people other than Indians could lawfully hunt on the Porcupine Reserve for big game during the proper hunting season. Strongquill therefore had a right of access to the Crown land and, having that right, he could kill moose for food within the boundaries of the reserve. Procter J.A; distinguished the Smith case in these words:

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Dealing, in the Smith case, supra, with the second question which Turgeon J.A. had posed—“Is it occupied Crown lands to which the Indians have a right of access?”—he disposed very shortly of this question in one paragraph holding that any right of access the Indians enjoyed was merely the privilege of all persons to enter the preserve without carrying firearms italicizing the last four words. The charge in the Smith case was one of “carrying fire-arms” on the game preserve. No one, Indian or otherwise, was entitled to access to the game preserve whilst carrying firearms and it was therefore held that Smith was properly convicted of the offence charged, (at p. 278)

Later in his judgment he added:

I can add little to the very able judgment of McGillivray J.A. in the Wesley case with which I wholly agree.

A careful study of the Smith case, supra, convinces me that the question of the right of a treaty Indian to shoot game for food on unoccupied Crown lands or Crown lands to which he has access is still open. There this Court dealt only with the prohibition of carrying firearms on a game preserve which was held to be occupied Crown land. (at p. 280)

McNiven J.A. held that inasmuch as the forest reserve was open to any visiting hunters who had a licence, Indians enjoyed the same right of access. Therefore, it was lawful for Strongquill to kill the moose for food, under the special right reserved to him by para. 12, notwithstanding that the killing of moose in the province, generally, was prohibited.

The judgment of the majority of the court in the present appeal was delivered by Mr. Justice O’Sullivan who said:

The hunting took place on a public road allowance which is occupied Crown land. The learned judges below held that Indians in common with others have a right of access to public roads and road allowances but that such right is limited and does not extend to hunting.

The nub of the judgment is found in the following passage:

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In my opinion, to hold that Indians have no right to hunt on public road allowances would involve the proposition that no one, Indian or non-Indian, has such a right. I think it is a matter of common knowledge that during hunting season,’ non-Indians are permitted to hunt on public road allowances where the activity can be carried on without danger to the public. What non-Indians can do in season, Indians can do out of season. Otherwise, their rights protected under the British North America Act, 1930, would be illusory. I would, therefore, hold that the learned judges appealed from erred in law with respect to the Mousseau appeal and it should be allowed in full.

The case was tried upon an agreed statement of facts, silent as to the “matter of common knowledge” of which Mr. Justice O’Sullivan speaks. The accused did not testify. The majority and minority positions in the Manitoba Court differed in perception as to the right of access, enjoyed by the general non-Indian public, on roads.

The Crown appellant argues that non-Indians have no right of access to roads for purposes of hunting. That being so, the limits governing the general right of access, applicable to the public, apply to Indians. There is no right of access to roads for citizens for purposes of hunting nor, additionally, for Indians under para. 13. Where access in its general sense relates to purposes other than those of hunting, then the property is not land to which Indians have access within the meaning of para. 13.

The position of the respondent Mousseau is simply put. It is his main submission that Indians in Manitoba have a right of access to public roads and road allowances and, therefore, the Indians may lawfully hunt thereon. In the alternative, if non-Indians do have a right of access to public roads and road allowances for the purposes of hunting during open season, the Indians in Manitoba have a parallel right of access to public roads and road allowances for the purpose of exercising their rights under para. 13 without reference to open or closed season. This alternative submission rests upon the passage from the judgment of Mr. Justice O’Sullivan to which I have referred.

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The respondent’s argument of a limited right of access generally, unrelated to hunting, giving rise to, and providing foundation for, an unlimited right of access to hunt under para. 13, is untenable. Paragraph 13 cannot be read as meaning that whenever an Indian can enter unto land for a purpose unrelated to hunting, say, for employment or recreation, he can also hunt. Respondent’s argument would give the Indians hunting rights at all seasons of the year, and by any means, in all places to which the public has access, such as highways, parks, community pastures, public golf courses, recreation areas, picnic grounds. The meaning given to the word “access” in the proviso must be limited to the subject matter of the whole paragraph in which the proviso appears, namely, hunting by Indians. In my opinion, the Indians have the right to hunt, trap, and fish, game and fish, for food at all seasons of the year on: (a) all unoccupied Crown lands; (b) any occupied Crown lands to which the Indians, or other persons, have right of access, by virtue of statute or common law or otherwise, for the purpose of hunting, trapping or fishing; (c) any occupied private lands to which the Indians have right of access by custom, usage, or consent of the owner or occupier, for the purpose of hunting, trapping, or fishing. See R. v. Little Bear[5]. Where a right of access to hunt is recognized in respect of any lands, that right is general for Indians and cannot be restricted by provincial legislation imposing seasonal restrictions, bag limits, licensing requirements, or other such considerations: the important criterion is hunting for food.

I turn then to respondent’s alternative submission, based upon Mr. Justice O’Sullivan’s finding that “during hunting season, non-Indians are permitted to hunt on public road allowances where the activity can be carried on without danger to the public”. On this issue, the appellant says only that the Court of Appeal was wrong in finding a general right of access to roads, for purposes of hunting. There is nothing in the record which

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enables this Court to determine whether the public does have a right of access to roads, in Manitoba, to hunt in open season. No evidence was tendered in support of this contention. The Wildlife Act and Regulations, we are told, are silent on the matter. All we know is that O’Sullivan J.A. takes judicial notice of it as a matter of “common knowledge”. Monnin J.A., by a form of judicial notice, reaches the opposite conclusion. We are thrown back then upon the common law.

In Harrison v. Duke of Rutland[6], the plaintiff went upon the highway, not for the purpose of using it as a highway, but solely for the purpose of using it to interfere with defendant’s enjoyment of his right of shooting on adjoining land. It was held that inasmuch as the plaintiff was upon the highway for purposes other than its use as a highway, he was a trespasser. Lopes L.J., at p. 153 of the report, had this to say: “But I take it to be clear that, if in fact a man be on land where the public have a right to pass and repass, not for the purpose of passing and repassing, but for other and different purposes, he is in law a trespasser,…”. Lord Esher M.R., in the same case, applied the test of “reasonable and usual mode” of using the highway (at pp. 146-7). See also Hickman v. Maisey[7]. In my view, hunting is not one of the purposes for which roads are made available and accessible for the use of the public. I agree with Mr. Justice Monnin, when he stated in the instant case:

A public road in Manitoba is occupied Crown land. Citizens, including Indians, have a right of access to public roads and road allowances but such right is limited to ingress and egress, to travel thereon, and to movement thereon but does not extend to hunting thereon. Therefore it is not land to which Indians have a right of access for the purpose of hunting.

A further reason impels one to resist adopting the approach which found favour with a majority of the Manitoba Court of Appeal. That approach recognizes in non-Indians, a right to hunt on public road allowances “where the activity can be

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carried on without danger to the public”. From that right a like right, indeed an extended right, is said to be enjoyed by the Indians. The difficulty presented in the practical application of such an ill-defined test is obvious. The right to hunt would vary with the locality and the particular stretch of road, with the time of day, volume of traffic, proximity of habitation and non-hunters, and many other factors. The right to hunt would rest upon the view one might take as to the danger of the hunting. The impracticability of such a test is patent.

I would allow the appeal, set aside the judgment of the Manitoba Court of Appeal and restore the convictions.

Appeal allowed.

Solicitor for the appellant: The Deputy Attorney General of Manitoba, Winnipeg.

Solicitors for the repondent: Pollock & Company, Winnipeg.