Top court closes door on appeal
Facing jail | Case of 3 St. Marys men hunting at night
OTTAWA - Three First Nations men from New Brunswick convicted of hunting at night with a light have been denied a chance to appeal their conviction to the Supreme Court.
Canada's top court rendered its decision Thursday.
Richard Polches, Jason Brooks and Jeffrey Polches - all members of the St. Marys First Nation - now face time behind bars following years of legal wrangling over the case.
"They've been primed for the decision," said defence lawyer Jayme O'Donnell. "They're obviously not happy that they will have to serve time."
The trio faces a minimum mandatory sentence of seven days in jail, she said.
The men have been free on bail since January following their conviction on the charge by the New Brunswick Court of Appeal.
The Supreme Court doesn't explain why it refuses to hear an appeal, which leaves lawyers and defendants to speculate on what the reasons might be.
"I think the case didn't fit within the definition of national importance," said O'Donnell. "That's one of the criteria the court requires."
She said the Supreme Court had already ruled that members of a British Columbia First Nation had a treaty right to hunt at night with a light.
O'Donnell said because a decision had already been made in the previous case, the top court might have been of the opinion that it was no longer an issue worth examining.
But this doesn't spell the end of aboriginal night-hunting cases in New Brunswick, said O'Donnell.
"I think the Supreme Court has taken the view that night hunting for aboriginal people is not inherently dangerous," she said.
"Now it's up to our courts to interpret that decision ... In general, it does affirm the fact that there is a possibility for night hunting in certain circumstances.
"Ours is a case where apparently the court felt that did not fit those circumstances." The men have denied they were hunting at night with a spotlight near Little River in 1999.
They said they were merely observing animals in the woods when two wildlife officers stopped them.
The men told officers they were en route to hunt moose about 20 kilometres away. A search of the van turned up a high-powered spotlight, a shotgun, a rifle and ammunition.
A spokesperson for New Brunswick Justice Minister T.J. Burke said he wasn't available for comment.
Burke worked as counsel for the defendants before being elected to the legislature in 2006.
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The same laws that prohibit hunting at night also prohibit disturbing wildlife at night with a light. The defendants stated they were not hunting; but rather just observing with a light. There are no treaty rights covering that.
Had they stated they were hunting they probably would have been acquitted; or allowed to appeal the conviction.