New Brunswick

Court of Appeal rejects bid to stay effect of ruling in Aboriginal case

New Brunswick's top court has refused a government request to stay the effects of a January ruling that saw a charge against an Aboriginal man thrown out on the basis it's inappropriate to try and determine treaty rights in the province's lowest courts.

Decision Aboriginal treaty rights can't be determined in lower courts can be held up as precedent

The Fredericton Justice Building, which includes provincial court, court of appeal and court of queen's bench. (CBC)

New Brunswick's top court has refused a government request to stay the effects of a January ruling that saw a charge against an Aboriginal man thrown out on the basis it's inappropriate to try and determine treaty rights in the province's lowest courts.

The Attorney General of New Brunswick has appealed Court of Queen's Bench Justice Terrence Morrison's ruling in which he stayed proceedings against Michael Paul Reynolds, who was charged with illegally selling moose meat.

Morrison ruled it is not appropriate to determine Aboriginal treaty rights in a summary conviction proceeding at the provincial court level.

While the province is seeking leave to appeal that decision to the Court of Appeal, it also asked the province's highest court for an order to stay the effects Morrison's decision until there is a decision on the appeal, if the court agrees to hear it.

"What the attorney general is seeking is a stay of the precedential value of the decision of the summary conviction appeal court," states the appeal court in a decision released on Thursday.

We have not found the arguments of the attorney general very persuasive.- Court of Appeal ruling

"The attorney general notes there are currently several summary conviction matters before the provincial court in which aboriginal treaty rights may be raised, and argues that, unless the precedential value of the decision of the summary conviction appeal court is stayed, the resolution of those cases on their merit could be in jeopardy."

However, the Court of Appeal found there are no provisions in provincial law or the Criminal Code that authorizes the attorney general to "apply for the stay of anything pending the disposition of an appeal, let alone the stay of the precedential value of a lower court's decision."

"With respect, we have not found the arguments of the attorney general very persuasive," the ruling states.

"Were we to find we have the power to issue what the attorney general seeks, we would not consider it appropriate to exercise it in the present case.

"In our view, the attorney general has not demonstrated any irreparable harm even on the lesser onus in cases where public interest is raised."

The province's application for leave to appeal Morrison's ruling in R vs Reynolds to the Court of Appeal is scheduled to be heard on June 16.