The New Brunswick Court of Queen’s Bench dismissed a summary conviction appeal brought by two brothers convicted of unlawfully hunting moose. The main issue at trial and on appeal was whether the defendants had status under section 35 of the Constitution Act, 1982. The trial judge was not satisfied that the defendants met the criteria of “community acceptance” by an Aboriginal community to be considered Aboriginal persons, and sentenced them to fines of $2,000 and seven days’ imprisonment. The summary conviction appeal was dismissed.

The defendants are of mixed lineage, but do not consider themselves to be Métis. The trial judge accepted that they had some Aboriginal ancestry, but did not find that they were accepted by the modern Aboriginal community. The defendants argued that the trial judge confused their claim to be Indian with a claim of being Métis, and that the Powley test should not be strictly applied to them. They also argued that the trial judge erred by requiring acceptance by a statutorily-created entity (an Indian band).

Ferguson J. reviewed the evidence at trial, including expert evidence about the genealogy of the defendants. It was noted that the defendants are in their late 40s and early 50s. They were told about their Aboriginal ancestry when young, but “it was hidden”. They did not live on reserve, and only recently became involved with the New Brunswick Aboriginal Peoples Council. Their attendance at annual powwows is not particularly significant. The trial judge had compared the circumstances of these defendants to the facts in cases like R. v. Lavigne, 2007 NBQB 171 and R. v. Hopper, 2008 NBCA 42. She was not satisfied that the defendants met the criteria of “community acceptance”. They are not recognized or accepted by the Aboriginal community as being Aboriginal.

The Court found no errors in the findings of the trial judge. The trial judge did not require acceptance from an Indian band, and did not require acceptance by the Métis community. The Powley criterion of “community acceptance” was applied by the New Brunswick Court of Appeal in Hopper to deal with whether defendants have established Aboriginal status as Indians. It was reasonable for the trial judge to examine the nearby community at Pabineau First Nation to determine if the defendants were “accepted” by them. Ferguson J. rejected the argument that the trial judge created a new, more onerous test for community acceptance. She did not restrict the “community” to those living on the Pabineau reserve. A trial judge is implicitly obliged to identify the Aboriginal community referred to in the evidence, and then determine acceptance of the defendant by it. The trial judge made no error here.

The trial judge made no reversible error in finding that the defendants had not been accepted by the Aboriginal community. She properly applied Lavigne and Hopper. She made no palpable and overriding error in concluding that the defendants failed to establish the solid bond of past and present mutual identification of common belonging between them and the members of the Aboriginal community.

The summary conviction appeal was therefore dismissed.


Scott Kerwin


Aboriginal Law