Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

To catch people hunting at night, conservation officers set up a trap consisting of a deer decoy with reflecting eyes. Two men, the Appellants, Indians within the meaning of the Indian Act, R.S.C. 1985, c. I-5, fired shots at the decoy after dusk and were charged with several Wildlife Act, S.B.C. s. 57 offences. The Appellants argued that their ties to the Tsartlip Indian Band gave them the Aboriginal right to hunt at night. The trial judge held that hunting deer was a central feature of Tsartlip culture but that the method of hunting was not. He also held that the traditional practices of the Tsartlip people did not adequately deal with the inherent dangers of night hunting. He therefore convicted the Appellants of hunting with a firearm during prohibited hours and hunting by the use or with the aid of a light or illuminating device contrary to s. 27(1)(d) and (e) of the Wildlife Act. The Appellant Olsen, was also convicted of discharging a firearm at wildlife from a motor vehicle contrary to s. 28(1) of the Wildlife Act.

The Appellants’ convictions were upheld on appeal to the Summary Conviction Appeal Court, on a charge of night hunting, contrary to s.27(1)(d) of the Wildlife Act, S.B.C. 1982, c.57. The Appellants appealed to the Court of Appeal arguing that they were entitled to benefits of the Douglas Treaty of 1852. The Crown agreed for purposes of this matter that the Douglas Treaty provided that beneficiaries of the treaty were entitled to hunt “as formerly”. The significant words of the Douglas Treaty were that the beneficiaries “are at liberty to hunt over the unoccupied lands, and carry on our fisheries as before”. The issue before the Court of Appeal was whether the safety provisions in the Wildlife Act applied to band members hunting for food at night. The majority of the Court of Appeal dismissed the appeal, holding that the Indian right to hunt did not trump hunting safety provisions. Lambert J.A., in dissent, would have allowed the appeal, finding that the Wildlife Act had no application to the hunting incidents which led to the charges.