R. v. Smith

R. v. Smith

The accused failed to prove on a balance of probabilities that he is a member of an Aboriginal or Metis community entitled under s.35 to hunt for food in the relevant area; the Crown proved the actus reus and, absent an established s.35 defence, the accused is guilty of the Wildlife Act offences.

Source-derived case information.

Citation
2012 NSPC 84
Parties
Crown: R.; Defendant: Ward Tracey Smith
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
6 July 2012
Procedural Posture
Criminal Prosecution Under the Wildlife Act / Trial Judgment (decision)
Outcome
Guilty
Legal Topics
Aboriginal Hunting Rights, Section 35 Constitution Act, 1982, Metis Status, Burden of Proof, Genealogical Evidence, Admissibility of Internet Evidence
Source Language
english
Aboriginal Law Wildlife Law Criminal Law Evidence Law Aboriginal Hunting Rights Section 35 Constitution Act, 1982 Metis Status Burden of Proof +2 more

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 7 Authorities cited 16 Party arguments 2
Sign in to unlock

Parties

R.

Crown

Ward Tracey Smith

Defendant

Procedural Posture

Criminal Prosecution Under the Wildlife Act / Trial Judgment (decision)

Legal Issues

  1. 1 Whether the accused is Aboriginal and a member of an Aboriginal community entitled under s.35 to hunt for food without licence and out of season
  2. 2 Whether the accused can establish on a balance of probabilities the ancestral practices, community membership and continuity required to invoke s.35 protection
  3. 3 Whether any recognized Aboriginal or Metis community held hunting rights in the geographic area where the offence occurred

Ratio Decidendi

The accused failed to prove on a balance of probabilities that he is a member of an Aboriginal or Metis community entitled under s.35 to hunt for food in the relevant area; the Crown proved the actus reus and, absent an established s.35 defence, the accused is guilty of the Wildlife Act offences.

Court Disposition

Guilty

Orders

  • Found guilty of hunting wildlife during the closed season contrary to s.39(2)(a) of the Wildlife Act R.S.N.S. 1989, c. 504
  • Found guilty of hunting without a valid licence contrary to s.26 of the Wildlife Act R.S.N.S. 1989, c. 504