The Alberta Court of Appeal granted leave to two Aboriginal men to appeal their convictions under the provincial Wildlife Act for hunting in a wildlife sanctuary. The appeal would be restricted to whether the lower courts erred in law in applying the “mistake of fact” defence. The Court of Appeal denied leave to appeal in relation to arguments about Treaty rights and unoccupied Crown land.

In August 2009, the appellants Gauchier and Legrande each shot and hit a moose decoy in a wildlife sanctuary that had been deployed by Alberta Fish and Wildlife Officers. They were charged under section 39 of the Wildlife Act. Mr. Legrande is a member of the Whitefish Lake First Nation and Mr. Gauchier asserted that he was a member of a Métis settlement. They each relied upon a treaty right to hunt. In addition, they defended the charges on the basis that they mistakenly believed that they could hunt in the wildlife sanctuary.  In 2011, the Alberta Provincial Court convicted both men and fined them each $200. In January 2013, the Alberta Court of Queen’s Bench affirmed these convictions: 2013 ABQB 30 [summarized in our e-Newsletter of 4 July 2013].

The Court of Queen’s Bench agreed with the Provincial Court judge that the appellants’ erroneous belief that they could hunt in the wildlife sanctuary was a “mistake of law”. Even if it was a mistake of fact, the appellants had failed to take steps to test their erroneous belief. A person who engages in prohibited conduct because of not knowing the factual limits of the prohibition has made a mistake of law and has no defence. The appellants’ ignorance of the wildlife sanctuary legislation was a mistake of law. The Court of Queen’s Bench also rejected the appellants’ argument that the wildlife sanctuary was “unoccupied Crown land” that had not been “taken up” for a visibly incompatible use, thereby allowing them to exercise any treaty rights to hunt, or that Aboriginal hunters were implicitly permitted to hunt in the sanctuary.

In cases involving regulatory offences, ignorance of the law is no defence. The defence of mistake of fact would be available if the accused reasonably believed in a set of mistaken facts which, if true, would render the act or omission innocent. Berger J.A. concluded that there was an arguable contention that the sentencing judge conflated a “reasonable belief in a mistaken set of facts” with the taking of “all reasonable steps to avoid the particular event”. The law on this point is not settled.

The Court dismissed the leave applications as they related to the claim that the sanctuary was unoccupied Crown land and therefore available to Aboriginal hunters. Berger J.A. stated:

The purpose of the [wildlife sanctuary] is to preserve wildlife, a purpose that is incompatible with hunting in the designated area, except where it is expressly authorized by licence. I respectfully concur in the observations of the Queen’s Bench appeal justice that if the existence of an unexercised authority to permit hunting (no licences having been issued) is compatible with an omnibus right to hunt by Aboriginal persons, the creation of a wildlife sanctuary would be rendered nugatory. Indeed, the creation of such a sanctuary renders the land “occupied Crown land” … 

A prima facie infringement of Aboriginal or treaty rights had not been established. This ground of appeal did not satisfy the threshold of arguability.

The appellants were therefore granted leave to appeal on the ground that the trial judge and the Court of Queen’s Bench erred in law in concluding that the defence of mistake of fact was not available.

Decisions available here.


Scott Kerwin


Aboriginal Law