Court of Appeal for Nova Scotia Simon v. The Queen
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The Appellant, James Matthew Simon, was convicted under s. 150(1) of Nova Scotia's Lands and Forests Act for possession of a rifle and shotgun cartridges. Although appellant admitted all essential elements of the charges, it was argued that the right to hunt set out in the Treaty of 1752, in combination with s. 88 of the Indian Act, offered him immunity from prosecution under the provincial act. Article 4 of that Treaty stated that the Micmac's have "free liberty of Hunting & Fishing as usual" and s. 88 provided that provincial laws of general application applied to Indians, subject to the terms of any treaty.
The Court of Appeal upheld the trial judge's ruling that the Treaty of 1752 did not exempt appellant from the provisions of the provincial Lands and Forests Act. At issue here was whether or not appellant enjoys hunting rights, pursuant to the Treaty of 1752 and s. 88 of the Indian Act, which preclude his prosecution for certain offences under the Lands and Forests Act. It was found that the appeal should be allowed.