Mi’kmaq can use lights for night hunts, judge rules 

Ottawa Citizen
Thursday, February 8, 2001

HALIFAX. Aboriginals have the right to hunt at night and with a light, a Nova Scotia Supreme Court judge has ruled. 

In a Feb. 5 decision made public yesterday, Associate Chief Justice Michael MacDonald overturned the conviction of a Cape Breton Mi’kmaq found guilty last year of hunting at night with a rifle and using a light. 

Judge MacDonald ruled that Section 68 of Nova Scotia’s Wildlife Act infringes on Allison Bernard Jr.’s constitutional right to hunt. Mr. Bernard, who lives on the Eskasoni reserve, was charged with “jacking” deer on Nov. 26, 1997. 

Last February in Sydney provincial court, Judge Peter Ross found him guilty of hunting with the intent to kill wildlife by using a light. He was fined $2,000 and ordered to pay $50 in court costs. 

Judge Ross, while recognizing Mr. Bernard’s aboriginal right to hunt, found Section 68 to be a safety provision to which Mr. Bernard’s Charter right must yield. But Judge MacDonald found that safety wasn’t the sole legislative purpose of the provision, citing conservation and sport ethic. 

“Aboriginals hunt for sustenance and not for sport,” Judge MacDonald wrote. “Furthermore, without the safety component, this infringement is unjustified.” 

While many, if not most, forms of night hunting with a light are unsafe and justifiably banned, Judge MacDonald wrote, some limited forms may be considered safe. 

Tony Rodgers, director of the Nova Scotia Anglers and Hunters Association, said he can’t believe a judge could conclude the limits on night hunting are not safety measures. 

“Using a light in the dark, no one can know definitively what they are shooting at.”