R v Morris: Night Hikers Beware

In a 4-3 decision released in December, the Supreme Court of Canada (“SCC”) reversed the convictions of Ivan Morris and Carl Oslen, members of the Tsartlip Band, for hunting deer at night on Vancouver Island. British Columbia’s Wildlife Act, RSBC 1996, c 488, prohibits all night hunting as inherently dangerous. Both men claimed that this conviction violated their right to hunt as protected in the 1852 North Saanich Treaty.

The majority judgment in R v Morris, 2006 SCC 59, penned by Justices Deschamps and Abella, agreed with them. By analyzing the 1852 treaty within its political, cultural and historical context, the SCC determined that the overriding intention of the Treaty was to preserve the traditional way of hunting for the Saanich Nation. Since time immemorial, ancestors of the Tsartlip Band have been hunting for food at night with illuminating devices. The SCC recognized that over time these devices will have evolved from simple torches to more modern lighting implements out of necessity and that “changes in method do not change the essential character of the practice, namely, night hunting with illumination.”

The Wildlife Act infringes on the treaty right to hunt at night with illumination because its ban on all night hunting is overbroad. Though the province is entitled to limit hunting in the name of safety by prohibiting dangerous hunting (and the SCC was clear that there is no treaty right to hunt dangerously), the majority concluded that in light of the size and population of BC, not all night hunting can be deemed dangerous.

“To conclude that night hunting with illumination is dangerous everywhere in the province does not accord with reality and is not, with respect, a sound basis for limiting the treaty right.”

The dissent, and much of the media commentary following the release of the decision, focused on British Columbia’s right to restrict dangerous hunting as a justified limitation on the Saanich right to hunt under the Treaty. An editorial in Saskatoon’s Star Phoenix labeled the majority judgment both naïve and misguided, citing concerns about public safety as more hikers and backpackers venture into increasingly remote “wilderness” areas. Further, the editorial attempted to incite panic by predicting that First Nations everywhere will be soon asserting the same rights – as I said, night hikers beware.

This strikes me as a little paranoid. Beyond the questionable popularity of night hiking, the SCC recognized that this particular Treaty protected the right to hunt at night for this particular Band. In order to make this case the Band was required to show that members had traditionally engaged in night hunting with illuminating devices. A floodgates concern is tempered by the reality that the success of the arguments in this case depended on the particular treaty and the particular hunting practices of the Tsartlip Indian Band. Further, the ruling is not a license to night hunt with impunity. The provision in the Wildlife Act which prohibits dangerous hunting applies to all people in the province, whether they are signatories to a treaty with the Crown or not.