February 6, 2007
In a 4-3 decision released in December, the Supreme Court of Canada ("SCC") reversed the convictions of Ivan Morris and Carl Oslen, members of the Tsartlip Band, for hunting deer at night on Vancouver Island. British Columbia's Wildlife Act, RSBC 1996, c 488, prohibits all night hunting as inherently dangerous. Both men claimed that this conviction violated their right to hunt as protected in the 1852 North Saanich Treaty.
The majority judgment in R v Morris, 2006 SCC 59, penned by Justices Deschamps and Abella, agreed with them. By analyzing the 1852 treaty within its political, cultural and historical context, the SCC determined that the overriding intention of the Treaty was to preserve the traditional way of hunting for the Saanich Nation. Since time immemorial, ancestors of the Tsartlip Band have been hunting for food at night with illuminating devices. The SCC recognized that over time these devices will have evolved from simple torches to more modern lighting implements out of necessity and that "changes in method do not change the essential character of the practice, namely, night hunting with illumination."
The Wildlife Act infringes on the treaty right to hunt at night with illumination because its ban on all night hunting is overbroad. Though the province is entitled to limit hunting in the name of safety by prohibiting dangerous hunting (and the SCC was clear that there is no treaty right to hunt dangerously), the majority concluded that in light of the size and population of BC, not all night hunting can be deemed dangerous.
"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."
The dissent, and much of the media commentary following the release of the decision, focused on British Columbia's right to restrict dangerous hunting as a justified limitation on the Saanich right to hunt under the Treaty. An editorial in Saskatoon's Star Phoenix labeled the majority judgment both naïve and misguided, citing concerns about public safety as more hikers and backpackers venture into increasingly remote "wilderness" areas. Further, the editorial attempted to incite panic by predicting that First Nations everywhere will be soon asserting the same rights - as I said, night hikers beware.
This strikes me as a little paranoid. Beyond the questionable popularity of night hiking, the SCC recognized that this particular Treaty protected the right to hunt at night for this particular Band. In order to make this case the Band was required to show that members had traditionally engaged in night hunting with illuminating devices. A floodgates concern is tempered by the reality that the success of the arguments in this case depended on the particular treaty and the particular hunting practices of the Tsartlip Indian Band. Further, the ruling is not a license to night hunt with impunity. The provision in the Wildlife Act which prohibits dangerous hunting applies to all people in the province, whether they are signatories to a treaty with the Crown or not.
4 Comments
Sir,
In response to your statement that those who are worried about the implications of the night hunting ruling are paranoid I offer three points:
1) Night hiking around Vancouver Island is not rare. Many provincial camp sites, as well as backcountry ones, neighbor reserves. I first hiked at night when I was 13, with a buddy while we were camping.
2) If leaning out of your car window, while leaning over a child, with a rifle, and firing it while it is still in motion is not dangerous - which I believe is what the appellant was doing - then I don't know what is.
3) The ruling appears to extend widely to natives without BC. After all, as the Eastern Canadian author of the majority judgment noted... "BC is a big place.. and many parts have only aboriginal people.." Asides from the humorous implication that the value of aboriginals isn't as great as non-aboriginals, that sentence alone reaffirmed my belief that judges in Ottawa should not be impacting policy in BC.
Thank you for your response Steven! I stand corrected on the popularity of hiking at night.
Though I may personally agree with you on the wisdom of the particular circumstances in which the decoy was shot, Mr. Olsen and Mr. Morris were acquitted of dangerous hunting under s.28 of the Wildlife Act by a trial judge of the Provincial Court in Duncan B.C.
The only evidence offered by the Crown to support the charges of hunting without reasonable consideration for the lives, safety or property of other persons was the testimony of the wildlife officers describing that Mr. Olsen had fired at the deer from his vehicle and passed the weapon to Mr. Morris - across the two children sitting between them in the vehicle.
However, the trial judge noted that:
"the Defendants testified that the gun was loaded with its clip outside the vehicle before Olsen fired, and then handed to Morris in an unloaded state. Morris then put a fresh clip in when he exited the vehicle to take his shots. While I am far from certain that the Defendants account of the incident is accurate, I cannot reject the evidence entirely."
It may be worth noting that only Mr. Olsen was charged with discharging his firearm from a vehicle and nobody ever alleged that the vehicle was moving when the shots were fired.
The case at the SCC was only about the blanket ban on all night hunting, the Justices in Ottawa never passed judgment on whether the actions of the appellants were dangerous within the meaning of s.28 the Act.
Jodi, I have a question arising from your response. How can one say that Morris and Olsen's hunting was safe based on their dangerous hunting acquittals? Consider, first, the trial judge's finding, made elsewhere in his reasons, that night hunting is inherently unsafe. Consider also the fact that the dangerous hunting charge had to be proven by the Crown beyond a reasonable doubt. Does the Crown's failure to prove beyond a reasonable doubt that Morris and Olsen hunted dangerously mean that their hunting was, on a balance of probabilities, safe? I think not.
Of course, none of this matters, because the majority's decision never addresses the question of whether Morris and Olsen's hunting was safe or unsafe; the majority moves from the view that some night hunting is safe to the conclusion that the ban on night hunting does not apply to Morris and Olsen. This is, I suggest, wrong. It means that a provincial law that infringes a treaty right in some of its applications never applies to a holder of that right, even if he or she is not engaged in its exercise.
I have some things to say about Aboriginal hunting methods. I don't understand how you could think hunting at night time is not safe, considering you would hike up in the mountains at night time. I would never go into the mountains at night time without a gun...do you know what is all out there and what could happen to you if you don't have protection. I have never been afraid of hunting at night time, sometimes you are too busy with work, school, sports, and hobbies and don't have any other time to hunt except at night time. You don't just randomly shoot at anything, you go for the two eyes that you see and most Natives that hunt are very accurate shooters, especially when you only have the head to look at so you aren't shooting at just anything. You can see what is around you, you can see what is behind the deer and in most circumstances you are looking at a deer in a slash up the mountain...which I can safely assume that isn't where people are hiking! And you don't shoot while the vehicle is moving, that is impossible! You stop the vehicle and you get out, line up your shot on a stump or you lay on the ground to shoot. Not to mention the fact that there is a safety switch where you put your gun on safety throughout the whole trip until you are ready to fire then you switch it on fire mode. I can't see anyone shooting over someone, especially a child. Every hunter knows not to load their gun until you see a deer and in no circumstance would the shooter be in middle to have to lean over another person. You can tell neither of you have any insight on hunting and you are completely clueless! It is stupid to try ban a cultural aspect of our "sustenance hunting" rights. We already have tons of bikes, quads, pot heads growing their crops, hikers, houses, and logging areas that limits our hunting areas not including the fact that more than half of our "back yard" mountains are locked up with a gate. And for those of you haters that don't like the fact that we are up there...just stay off our land! OUR HOME AND NATIVE LAND. So quit your crying and accept the fact that we have the right to hunt whenever, wherever the deer are on our Native land. We are only doing what we love doing the most...we have the right to own a rifle and we are only using it on 4 legged creatures...not like the rest of you crazy people shooting each other for no good god dam reason.