New Brunswick

Supreme Court dismisses N.B. government's attempt to appeal hunter's Aboriginal rights

The Supreme Court of Canada has dismissed an application for leave to appeal filed by the New Brunswick government in the case of a man who killed a moose for a traditional Mi'kmaq wedding.

Bathurst-area man was charged after killing a moose in 2010

The Supreme Court of Canada has declined to hear a New Brunswick government appeal in a First Nations hunting case. (Adrian Wyld/Canadian Press)

The Supreme Court of Canada has upheld an Appeal Court of New Brunswick decision that found a Bathurst-area man was exercising his Aboriginal rights when he shot and killed a moose 12 years ago.

In a decision filed Thursday, the Supreme Court of Canada dismissed the government of New Brunswick's application for leave to appeal the decision, which was made last year in the case of Keith Boucher.

"For Mr. Boucher, it's, it's a vindication of what he's been saying all along," said Kate Gunn, a lawyer representing Boucher, who was charged after killing a moose in 2010.

In 2017, Boucher was found guilty in Bathurst provincial court of unlawfully possessing a moose carcass contrary to Section 58 of the New Brunswick Fish and Wildlife Act.

He was ordered to serve seven days in jail, and pay a $1,000 fine and $200 surcharge.

The charge stemmed from seven years earlier, when Boucher killed a moose for its meat and hide to be used as part of a friend's traditional Mi'kmaq wedding.

Though Boucher doesn't have status under the federal Indian Act, he claimed community ties to Nepisiguit First Nation and First Nation ancestry through his great-great-great grandfather.

He filed an appeal of his summary conviction, and the appeal was dismissed in 2018.

It's about someone's identity as an Indigenous person and their relationship with both their traditional practices and culture.- Kate Gunn, lawyer representing Keith Boucher

In 2021, Boucher applied to the Appeal Court of New Brunswick, and in March of that year, Justices Kathleen Quigg, Bradley Green and Charles Leblond overturned the two lower court decisions, vacating the conviction and granting Boucher an acquittal of the charge.

In her reasoning, Quigg said she found Boucher's lawyers in the two earlier proceedings were ineffective in their representation.

She also said that based on evidence presented, Boucher proved he did, in fact, have First Nations ancestry and met the requirements of a test an earlier court ruling established for defining rights.

That test, referred to as the "Powley test," set out three criteria that must be met for the purpose of determining status for Métis. The criteria include self-identification, ancestral connection and community acceptance.

The New Brunswick Appeal Court considered the Powley test in its ruling in the Boucher case.

But in its notice of application for leave to appeal filed to the Supreme Court, the New Brunswick government argued the Appeal Court's decision "raises a question of public importance" relating to the ancestral connection portion of the Powley test.

"More specifically, the appeal raises the need for this Court's intervention and clarification of the ancestral connection test," the province said in its filing. 

"From the Applicant's perspective, the need for clarification is a matter of public importance and national significance. In Powley, this Court determined it would only expand upon the ancestral connection test in a case where it was determinative. This is that case."

The Supreme Court did not issue a reason for dismissing the province's application.

Ruling upholds Boucher's Indigenous identity, lawyer says

Gunn said the Supreme Court ruling is important for Boucher in more ways than just being able to hunt moose.

Kate Gunn, lawyer representing Keith Boucher, said the Supreme Court of Canada decision vindicates him. (CBC/Zoom)

"It's about someone's identity as an Indigenous person and their relationship with both their traditional practices and culture, but also with the way Canadian law interacts with with those rights and practices," Gunn said.

"So I think for him, that's really important."

Gunn also said she's happy with the ruling because it suggests an unwillingness by the Supreme Court to amend the Powley test in a way that might limit who qualifies as having Aboriginal rights.

"What Mr. Boucher said and what we argued in our application and which the court, I think, implicitly accepted ... is that the [Powley] test is already established. 

"It's not necessary to have more onerous evidence, and that certainly in the case of Mr. Boucher, it was clear that he was a person of Indigenous ancestry and had the right to hunt where he was hunting."

Shawn Berry, a spokesperson for the Department of Justice and Public Safety, said in an email that the department is aware of the Supreme Court's decision.

"Clearly it concludes the matter as far as Mr. Boucher is concerned, and we will assess the implications beyond his case," he said.