Court rules against night hunters

Eskasoni men were caught shooting at mechanical decoy moose during sting operation

The highest court in Nova Scotia has dismissed the appeal of two Mi’kmaq men who claimed their Aboriginal hunting rights allowed them to shoot moose in the Cape Breton Highlands at night using high-powered lights.

In a decision released Tuesday, the Nova Scotia Court of Appeal in Halifax upheld two lower court decisions against Aaron Paul and Charles Francis.

The two Eskasoni men were both charged under the Nova Scotia Wildlife Act following a Sept. 5, 2006, sting operation at a gravel pit near Cheticamp Lake in the Cape Breton Highlands.

Department of Natural Resources officers hiding behind piles of rock observed as the two men drove in, unloaded their truck, made a fire before searching for moose using their truck headlights to sweep the open areas.

Francis later got out of the truck and fired a shot at a mechanical decoy moose set up by the officers who immediately arrested the pair and seized their identical 300 Winchester Magnum rifles with tripods.

During their provincial court trial, Paul and Francis argued they were exercising their right under Section 35 of the Constitution to hunt for food and ceremonial purposes. They also claimed that Mi’kmaq hunters traditionally hunted at night using flaming torches.

However, following expert and witness testimony, Judge David Ryan ruled that

there was no evidence that hunting at night with lights was a “preferred” Mi’kmaq method. Ryan also said hunting at night in an area where people commonly camp, pick berries or fish poses a significant risk to public safety. He found both men guilty and fined them each $362.

The Summary Conviction Appeal Court later dismissed their appeal.In Tuesday’s decision, Nova Scotia Court of Appeal Justice Joel E. Fichaud ruled that both the Summary Conviction Appeal Court and provincial trial judge correctly characterized the Aboriginal right to hunt for food. He said the evidence also supports Ryan’s finding that the dangers of hunting at night in the Cape Breton Highlands justifies any perceived infringement of Aboriginal rights. As well, Fichaud said the expert historical evidence admitted by Ryan was admissible.

The Nova Scotia Court of Appeal is generally seen as the court of last resort for Nova Scotians appealing lower court or tribunal decisions. However, a small number of cases can be further appealed to the Supreme Court of Canada.