The Supreme Court of Canada dismissed a leave application filed by a Métis individual in relation to an Alberta Court of Appeal decision upholding his conviction under Alberta’s Wildlife Act. Mr. Hirsekorn had been convicted in December 2010 (2010 ABPC 385), and this judgment was upheld by both the Alberta Court of Queen’s Bench and the Alberta Court of Appeal. The earlier decisions were noted in our e-newsletters of 12 January 2011, 17 January 2012, and 15 July 2013.
A summary of the case found on the Court’s website was as follows:
Aboriginal law — Aboriginal rights — Hunting — Métis — Applicant charged with hunting contrary to provincial statute — Whether Court of Appeal erred in its interpretation and application of R. v. Powley, 2003 SCC 43 to the facts of this case — What is the proper interpretation and application of Powley to prairie Métis — Wildlife Act, R.S.A. 2000, c. W-10
The applicant, Garry Hirsekorn, is Métis. In 2007, he participated in a hunt organized by the Métis Nation of Alberta in response to the Alberta Government’s cancellation of the Interim Métis Harvesting Agreement which had been negotiated and entered into following this Court’s recognition of Métis harvesting rights in R. v.Powley, 2003 SCC 43. During the course of that hunt, the applicant shot a mule deer near Elkwater, a community on the western edge of the Cypress Hills in southeastern Alberta. He was charged with hunting wildlife outside an open season and being in possession of wildlife without a valid wildlife permit, contrary to ss. 25(1) and 55(1) of the Wildlife Act, R.S.A. 2000, c. W-10. Nineteen other hunters throughout Alberta were charged with various wildlife offences.
The applicant filed a constitutional notice claiming that ss. 25(1) and 55(1) of the Wildlife Act were of no force and effect in their application to him. He defended the charges against him on the ground that, as a Métis person within the meaning of s 35(2) of the Constitution Act, he had an aboriginal right to hunt for food and that the Wildlife Act unjustifiably infringed that right.
The legal proceedings against most of the other Métis hunters were adjourned pending the outcome of the applicant’s case. After a year-long trial, the applicant was convicted on both counts pending against him.