Supreme Court of Canada night hunting judgment

When I first read the judgment from the Supreme Court on night hunting by aboriginals my initial thought was, “what are they smoking in the judge’s chambers? After I had read the judgment I modified that to “what were four of the judges smoking in chambers”?

The story is that in 1996, two members of  the Tsarlip Indian Band on Vancouver Island had been charged and eventually convicted of  hunting deer at night, which is illegal, due to safety reasons, right across Canada and the U.S.

Arguing that they had traditionally hunted at night with lights they challenged their conviction based on the argument that their treaty rights were being infringed.

This argument was based on the fact that their band was covered under the North Saanich Treaty of 1852, that guaranteed that the Saanich Tribe “are at liberty, to hunt over the unoccupied lands, and carry on our fisheries as formerly”. The key word being “formerly”. They argued that because it was part of their hunting tradition, that they were guaranteed to be able to continue this method of hunting. 

In a split 4 to 3 decision the Supreme Court of Canada allowed the appeal and set aside the convictions.

The four assenting Justices, Binnie, Deschamps, Abella and Charron agreed that there was no treaty right to “hunt dangerously”, but that “British Columbia is a very large province, and it cannot plausibly be said that a night hunt with illumination is unsafe everywhere and in all circumstances …”.

The esteemed judges did concede that “if a night hunt is dangerous in particular circumstances, it can (and should) be prosecuted …”.

That makes the Conservation Officer’s job much tougher. Unless someone is lying on the ground dead or there is a bullet hole through the kitchen window, who’s to say the circumstances weren’t safe?

A nice touch was their concept of the northern part of the province:

The blanket prohibition of s. 27(1)(d) and (e) applies, of course, throughout British Columbia, including the vast regions of the interior. Much of the north of the province is uninhabited except by aboriginal people, and there are areas where even they are seen only occasionally.   To conclude that night hunting with illumination is dangerous everywhere in the province does not accord with reality and is not, with respect, a sound basis for limiting the treaty right.

I get the impression that their view of British Columbia is a roadless wilderness north of Prince George or possibly even the Okanagan.

In the dissenting view by Justices McLachlin, Bastarache and Fish, they state:

When the Douglas Treaty was signed, hunting at night was not uncommon. Nor was it particularly dangerous.  It would not have been surprising had both the Crown and the North Saanich aboriginals contemplated that the aboriginals would continue to hunt at night.  At the time, this practice did not pose the same dangers as it does today (which dangers will be explained in detail below).  And the parties may not have even had reason to anticipate that the dangers would grow.  But they could not have believed that the right to hunt included a right to hunt dangerously.  To impute that belief to them would do injustice to both parties and, would in addition, defy common sense.

Unfortunately, their arguments did not carry the day.

There is always talk in cases such as this that the changes in technology should be taken into consideration. Birchbark torches being replaced by high-power lights, canoes and horse by trucks and ATVs and the bow and arrow by high power rifle with scopes. But this judgment speaks very clearly to that opinion:

 From 1852 to the present, the tools used by the Tsartlip in hunting at night have evolved.  From sticks with pitch to spotlights and from canoes to trucks, the tools and methods employed in night hunting have changed over time.  These changes do not diminish the rights conferred by the Treaty.  The right of the Tsartlip to hunt at night with illuminating devices has of necessity evolved from its pre-treaty tools to its current implements. 


This approach has led the Court in other cases to acknowledge, for example, that hunting with a rifle and ammunition is the current form of an evolving right whose origins were hunting with a bow and arrow (Simon v. The Queen, [1985] 2 S.C.R. 387), and that a treaty right to erect a log cabin for hunting purposes flows from the former use of mossy lean-to shelters (R. v. Sundown, [1999] 1 S.C.R. 393).

It is worthwhile to read through the complete judgment to gain an insight into how the judicial mind works. Personally, I think that the dissenting three got it right, but that is the risk every time you go into court. Whether it is local or Supreme, you never know how it is going to play out.


5 Responses to “Supreme Court of Canada night hunting judgment”

  1. Doug Brown Says:

    Lets get something straight right off the bat: the prohibition on using a “jacklight” to assist in hunting at night does not originate from public safety concerns, but rather from concerns to keep the “sport” in the hunt. As North American society industrialized in the 19th century and a mans worth became less tested by the new industrial complex, there was a movement lead by society’s elite to go “back to nature”. Nature and the hunt were generally seen as the last resort to really test a mans true mettle. Among those elites (which almost without exception included judges, lawyers and politicians), it was a widely held belief that the easier the hunt was, the less tested were the skills of the sportsman. Hence you have all kinds of sportsman associations that endorse very specific hunting ethics, not the least of which is an absolute disdain for “jacklighting”. This disdain has unfortunately filtered down into the public domain somewhat as well. The prohibition on using a “jacklight” was made not for reasons of public safety, but to make room in a diminishing forest for a small group of wealthy elites that wanted exclusive access to nature for themselves – and never mind that many poor people (including Aboriginal peoples) actually hunted not for the sport and not to test their mettle, but to put food on their plates. The laws that first arose to give game animals a “fair” or “sporting” chance of eluding a hunter originated in the 19th century. In New York the first jacklight prohibition was enacted. Sportsmen from the nearby big cities would frequent the upstate New York Adirondack region. Gradually other sportsmen and other state legislatures throughout North America would adopt similar laws and ethics. These laws and ethics did not only include the prohibition on using a jacklight but were expanded (as technology advanced) to include other such prohibitions such as hunting with poisons, hunting with explosives, hunting with vehicles (boats, helicopters etc) and the list goes on. Other such laws to the same end included a prohibition on killing a swimming moose or deer or hunting with dogs.

    But, goes the argument, who is to say that in todays society the law prohibiting night hunting with a jacklight cannot be one that is in fact for reasons of public safety? It really comes down to this: there are already laws in the Wildlife Acts and Regulations that are specifically directed towards ensuring public safety. It is those laws, not the prohibition on using a light, that ought to be invoked when a jacklighting Aboriginal hunter, exercising their constituional right, is confronted by a conservation officer – and only if the hunting is actually occurring in some type of unsafe manner (ie. too close to a dwelling or a populated area, or the hunter is careless or under the influence etc.). Provincial laws have already conceived of what is unsafe. If an Aboriginal hunter is hunting unsafely, then charge him or her with hunting unsafely – not for hunting in an unsportmanlike manner.

    Of course the media never quite picks up on this – they simply sensationalize the issue and frame it in terms of public safety – closely following the lead of clever Crown counsel. Crown counsel know full well that in Canada, the only interests that trump aboriginal hunting rights are public safety and conservation – not the sportmans ethic of giving game a “fair” chance at eluding capture. If Crown counsel were to argue the truth, (ie. that the sportsman ethic ought to trump aboriginal rights), then their arguments would simply be summarily rejected by the courts. Are farmers required to give cows, pigs and chickens a “fair” chance at eluding capture? Of course not – and neither should Aboriginal food hunters.

    Lets not forget something else. Daytime hunting is dangerous as well – after all, a high powered rifle is being discharged. However, it is, in our society, simply put, an acceptable risk – just like driving a car. Hunting by day involves the very same risks as hunting at night with a jacklight. Daytime sport hunters are not prohibited from hunting in foggy or rainy weather when their visibility is diminished. Daytime sport hunters are more susceptible to fatigue and over eargerness than are jacklighters. Daytime sport hunters cannot see through a bush, a tree or tall grass. A jacklight can be just as effective for checking whats behind a game animal as a daytime hunters’ vision. Indeed, a jacklight would be a much better early warning device to any other humans that happen to be in the vicinity of a targeted game animal. (I know if I saw a bright shining light in the woods I’d be quick to make my human presence known.) Furthermore, a jacklight has the effect of “freezing” some larger game giving the hunter a still target at which to aim – thereby creating even less of a chance of an errant shot. The vast majority of hunting fatalities and other hunting related accidents occur during daylight hours and most involve mistaken identity. But even so, daytime sport hunting has been deemed by society (wealthy elite) to be an acceptable risk.

    Aboriginal people who exercise their right to hunt for food are simply not in the same eurocentric category as their sport-hunting counterparts. For recreational and sport hunters, they are exercising a conferred statutory privilege that can be granted or revoked at the whim of the minister. The Aboriginal right to hunt has constitutional protection for a reason, because without this protection, Aboriginal hunting would simply be steamrolled by the whims of the powerful elite who have already raped the wilderness and steamrolled Aboriginal peoples themselves onto poverty-stricken, welfare dependant reserves. When Crown counsel argue that public safety is the issue at stake, they are simply acting as the highly competent mouthpieces of the wealthy elite for whom the laws prohibiting jacklighting were made in the first place over a hundred years ago. Hooray for the Morris decision – its about time.

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