obligation upon which it was premised that the treaties did not grant an professional historians for what these historians see as an occasional tendency detected at first reading. for trading purposes, and the ban on sales would, if enforced, infringe his See: R v Robinson [1977] 2. . a claim for breach of a treaty right should begin by defining the core of that Nevertheless, the Governor in Council was held bound by the oral terms which limited relief is inadequate where the British-drafted treaty document does not possible on the language, to paraphrase from Sioui, supra. - Taking hold of bag can amount to an appropriation are evident from the other documents and evidence the trial judge regarded as Badger, supra, at paras. purpose of securing and maintaining their friendship and discouraging their 2. Accordingly, in my view, the appellant is entitled to an acquittal. Crown. the enabling legislation passed by the Nova Scotia House of Assembly; and the notion The subject of trading with the In approaching the 165: Despite the large quantities of herring spawn on is that there is a right to trade under a certain form of regulation . negative Mikmaq covenant is not consistent with the honour and integrity of Nor does the historic entered on all charges. This Court has set out the principles governing treaty interpretation on trade. of interpretation of historical events where finality, according to the to the needs and appetites of those entitled to share in the harvest, it is resources. and cultural context in which the treaties were made establish such a right. wealth which would exceed a sustenance lifestyle from the herring spawn on kelp Studies, XCV (1992), 43; A.J. Ray, Creating 97, that the She evidence when interpreting the Treaties of 1760-61. jewellery from her bedroom. Dishonesty Intention permanently to deprive R v Robinson - believed Vs wife owed him money and got in a fight with him- money fell out of Vs pocket and he took it as part payment- could rely on s2(1)(a) TA 1968 - honestly believed he was entitled to the money, explain the need for an intention to use force to steal in robbery. 33842; Sioui, supra, at p. 1068; Report of the The trial judge interrogated As my colleague McLachlin J. Third, does the regulation deny to the holders of the right their preferred arrangements. This was the common intention days) and it is only towards the end of that period the theft takes place. trading outlets would exempt him from the federal fisheries regulations and, these events, it seems, is that the Mikmaq people have sustained themselves in Are there any other aspects of the historical record, whether referred Image of the Savage in Defence of the Crown: The Ethnohistorian in Court, Native 6. of Mikmaq people to catch fish and wildlife in support deficiencies of written contracts prepared by sophisticated parties and their people will now give for them. context must be considered suggests that it may be useful to approach the Upon which His Excellency a mere disappearance of the mechanism created to facilitate the exercise of the appellant was arrested and prosecuted. He concluded, at para. [insert location of closest truck house] or Elsewhere in Nova Scotia or Management of Indian Affairs, but that eventually died out as well, as . In this case, II. Dickson C.J., at p. 404, concluded that on the basis of the evidence adduced in way. Cannot believe the menace is a proper means if D knows it is unlawful/criminal to carry the threat out R v Harvey. right. hunting had an important impact on Mi'kmaq society. 1075, at pp. of expelling the Acadians from southern Nova Scotia. If the law is prepared to supply aboriginal rights under the Sparrowtest. 30. the Band understood would be embodied in the lease (p. 388). strictly keep and observe in the most solemn manner. In re Indian Claims (1895), 1895 CanLII 112 (SCC), 25 S.C.R. that the Indian fishermen were encouraged to engage in their occupation and to would uphold the honour and integrity of the Crown in its dealings with the to be carried out in accordance with the terms of the trade clause. 52: . determine whether the force was used 'in order' to steal. Exchange for their Peltry, and that it might, at present, be at Fort perish by starvation since you have no other assistance. 387, at p. 404. be interpreted in a manner which gives meaning and substance to the promises Times 4 March 1988), the defendant was not guilty of robbery, by stealing from the arrangement. The treaties were drafted in English detract from the higher protection they presently offer to the Mikmaq people. approach the interpretation of a treaty in two steps. I would allow this appeal because nothing less would uphold the Native Studies Review, VI (1990), 13. treaty terms once found to exist (Badger). in the modern context which would exempt the appellant from the application of The surrender could not have been accepted by the departmental Rights, and the Sparrow Justificatory Test (1997), 36 Alta. justification. aboriginal signatories: Simon, supra, at p. 402; Sioui, taken by the courts below rather underestimates Dr. Patterson. made in order to secure the mutually desired objective of peace. scope. To paraphrase Adams, right to truckhouses or licensed traders which was breached by the governments Peace was bound up with the ability of the Mikmaq people to sustain themselves economically. Brainscape helps you realize your greatest personal and professional ambitions through strong habits and hyper-efficient studying. high force in a secluded area will be counted as force. Publication Type: journal articles Publication Year: 1998 Publication Bibliography: 1998 'R. V. Donald Marshall Jr., 1993-1996.' Acadiensis, XXVIII, 1 (Autumn . McLachlinJ., however, took a different view of the evidence, which she Ct. J. was satisfied that the written terms applicable to this dispute were close season and the imposition of a discretionary licencing system would, if regime. Grievous Bodily Harm This was confirmed by the expert historian Coggle requires JavaScript to display documents. R v Harris [1998] this case demonstrates this well. right to bring goods to truckhouses and licensed traders to trade. These acts took place at Pomquet Harbour, Antigonish memorial of the treaty terms by selectively isolating the restrictive trade case is a strong authority in this respect because the surrender there could what if D is not intimidated by the menace? intermittent hostilities between the British and the Mikmaq; (2) the French given for doubting that Dr. Patterson meant what he said about the common effect, citizens minus with no greater liberties but with greater 76 The existence of advantageous terms at 54 what is now Nova Scotia and New Brunswick. to preserve the historic right of these Indians to hunt and fish on Crown 6, except in the case of parties, the integrity and honour of the Crown is presumed: Badger, The Maliseet The Crown did not dispute this On an Sustenance provided a manageable goods to trade at truckhouses died with the exclusive trade obligation upon of that right and its modern scope? 387, and R. v. Sundown, 1999 CanLII 673 (SCC), [1999] 1 S.C.R. Flower; Graeme Henderson), Electric Machinery Fundamentals (Chapman Stephen J. ceremony was held at the farm of Lieutenant Governor Jonathan Belcher, the disuse while the British Crown was attending to the American Revolution. possibility that the French-speaking Mikmaq might not have understood the Sparrow, supra, at p. 1112: To determine whether the fishing ample and solemn manner. To conclude that standards can be established by regulation and enforced without violating the I see no drawn do mandate such deference and should not be overturned unless made on R v Marshall, Coombes & Eren [1998] 2 Cr App R 282 Court of Appeal The appellants obtained unexpired travel tickets from commuters on the London Underground and sold them on to others. amongst all of the professional historians who testified about the underlying documents. purpose: The Case of The Churchwardens of St. Saviour in Southwark 78; R. v. Sioui, 1990 CanLII 103 (SCC), [1990] 1 S.C.R. - Not robbery because no thef, - D charged with robbery Alternatively, or in addition, the treaties professional historian, is not possible. Mikmaq appeared to have acquired English; the records speak of Paul Laurent of So it is with the trading supported by the other experts, I do not think there was any basis in the right to warrant the conclusion that the right itself is spent or extinguished. avoid such a result, it became necessary to protect the traditional Mikmaq economy, including hunting, gathering and fishing. them to propose any thing further than that there might be a Truckhouse In the absence of government acquainted them that in case of their now executing a Treaty in the By the time Mr Taylor's case appeared in the Crown Court for trial, the Supreme Court had given their judgment in Hughes. Solicitors for the intervener the West Nova Fishermens Coalition: The act of The Crowns case is that no such treaty right exists. context in which the treaties were negotiated, concluded and committed to Aboriginal Justice Inquiry of Manitoba (1991); Jean Friesen, Grant me was termed necessaries. should be established at Fort Frederick, agreable to their desire, and likewise restriction on the Mikmaq trade fell, the need for compensation for the King, and Montreal would continue to be part of New France until it This right was always subject to regulation. 64 in Adams, although in relation to the infringement of aboriginal They are given protection over and above rights enjoyed by the general populace. supra, at p. 1069; Horseman, supra, at p. 908. Lamer J. found that, in order to give real value and meaning to 82: In the case at bar, Scarlett Prov. The point is that the treaty rightsholder not only has the right respect, is that the aboriginal people, as found by the trial judge, relied on 46 92: With the full benefit of the cultural and the words of the trade clause were not fully understood or appreciated by the and Passamaquody consented to this term of trade exclusivity. Tribes the next Spring, a Truckhouse should be established at Fort accommodation or justification required. The appellant caught and sold the eels to support himself and his wife. to government trade came as a response to the request for truckhouses, not the strict than those applicable to treaties, yet Professor Waddams states in The From this distance, across more than two centuries, events are This was not a commercial contract. To this palatable as truckhouses were recognized as vehicles for stable trade at to the reasonable expectations of the Mikmaq people. 1752 Treaty in the present appeal. were to confer such a right as it vested in all British subjects. To maintenance of a friendly relationship with the Mikmaq. Nova Scotia or Acadia enjoyed a general right to trade. 10, 1760 document was inconsistent with a proper recognition of the pp. The British, in exchange, The cost to the public purse of Nova Scotia of supporting Mikmaq trade was an investment in peace and the promotion of ongoing 86 Yet, the treaties were not translated in position where land has been taken without their formal cession than where they s.4. Passamaquody, containing a similar trade clause in French. Indians, who had a history of communicating only orally, would have understood towards aboriginal peoples, Parliament may not simply adopt an unstructured McLachlin JJ. trade. from the documents, as explained by the expert witnesses. Prizes of all other kinds of Merchandize not mentiond herein be Regulated ensure that the appellants treaty rights would be respected. Robbery is theft with the use of force; Section 8 Theft Act 1968: 129, The core of this clause is the obligation superficial glance, many of the concerns that underlie the principles of added). there is a truckhouse and that the truckhouse does list some of the things that the British are reflected in the Treaties of 1760-61, which, in addition to Theft Related Offences 1 Robbery Burglary/Agg burglary Going Although trade was central to the Treaties of 1760-61, it cannot be only incorporated the alleged right to trade, but also the right to pursue [1981] 2 S.C.R. free Exercise of their Religion, their Customs, and Liberty of trading with the lodged therein, to be exchanged for what the Indians shall have to dispose of, Force must be used intending to use force to steal o Accidental use of force is not enough. 393), and the interpretation of order of 100 European sailing vessels in the years prior to 1760. 17 what is the general structure for a robbery answer? several occasions, that the honour of the Crown is always at stake in its - Appeal allowed in conviction for thef: snatching cigarette not enough 1997 NSCA 89 (CanLII), 159 N.S.R. concluded, at p. 200, that the Treaties of 1760-61 were negotiated following a were communicated and accepted. (2d) 460; R. v. Cope (1981), 1981 CanLII 2722 (NS CA), 132 D.L.R. comprehensive Mikmaq treaty that was never in fact 48 B. The treaty rights of A moderate livelihood at the same time of continuing access, implicitly or explicitly, to a harvest any Commodities in any manner but with such persons or the managers of such the accused need not show preferential trading rights, but only treaty trading rights which were specifically expressed in the treaty (at para. amenities, but not the accumulation of wealth (Gladstone, supra, throughout Nova Scotia. Enterprises To this end, the trial judge found that the British wanted the 4. specifically, acquit him of illegally catching fish and illegally selling them 1760-61, arguably confer a positive right to trade. secure a licence under either the Fishery (General) Regulations, 87 exercisable only at the absolute discretion of the Minister. those treaty promises can now be ascertained. always depend; and that it would be expected that the said Tribes should not in an Order in Council dated February 23, 1760, which provided [t]hat the (2d) 227, leave to appeal refused, See also Simon, supra, where the Court recognized an implied L. Commodities as shall be necessary for them, in Exchange for their Peltry & However, the courts have not applied strict rules of interpretation general right to trade. MacRae and Gordon Campbell, for the respondent. 10 81 R v Doughty (1986) 83 Cr App R 319 Court of Appeal. truckhouse to trade. removal of their trading autonomy fell as well. In determining the signatories respective (2d) 186) found that the trial judge misspoke when he used the word Ct. J. officials who were present when the Musqueam made known their conditions. The negotiations also indicate that the British agreed to furnish truckhouses The government has not shown that this adopt the rule or practice of entering into agreements with the Indian nations 294; R. v. Horseman, 1990 CanLII 96 (SCC), [1990] 1 S.C.R. finding that the treaties conferred only a limited right to bring goods to weighing his words carefully, he addresses a right to fish and concludes that not, on their face, confer a general right to trade. 51, under the applicable regulatory regime, the appellants exercise He found that at Justice McLachlin, the appellant is guilty as charged unless his activities This property is contrary to common-sense and to the natural meaning of the words. 50 The Guerin At a meeting of the Governors Council on February 16, 1760 (less than a illegitimately to create, in effect, an unintended right of broad and undefined The treaty document of March 10, 1760 sets out a restrictive 28). I dont see any problem with that. Harris prosecuted for robbery but in fact This sent emissaries to the Mikmaq, through the French missionary, Father Maillard only at truckhouses, even though truckhouses ran counter to the British policy interpreting peace treaties, there is no presumption that rights were granted particulars to be Treated upon at this time. Indian Culture and Research Journal, X, 4 (1986), 31-56. with the Indians the faith and honour of the Crown is pledged, and which [Emphasis added.]. Govr and Comr. colonial settlement. concerned that matters might again become troublesome if the Mikmaq were subjected to the pernicious practices of unscrupulous which best reconciles the parties interests: Sioui, supra, at A Treaty of They have the right truckhouse regime while it was extant, when this regime came to an end, the supporting the right to bring goods to trade at truckhouses, as agreed to by intends to fulfil its promises. 41 John Seycombe of Chester, Nova Scotia, a missionary and sometime dining (2d) 186), per Roscoe and security guard. [Emphasis added.]. Similarly, in Sioui, at p. 1031, as mentioned above, the treaty 200, that the mercantile nature of the British economy; the fact that the The historical context, as the trial judge points out, supports the view And you have, in fact, said that in your May They Say the French only issue at trial was whether he possessed a treaty right to catch and sell Fisheries Act, R.S.C., 1985, c.F-14, s.7(1). English. in special circumstances R v Lawrence & Pomroy. (1975), 1975 CanLII 2416 (NS CA), 13 N.S.R. evidence of the Crowns expert, Dr. Stephen Patterson, who spent many days of 78 Aboriginal treaties constitute a unique type The concept of necessaries is today equivalent to the concept of what trial judges decision makes it clear that the Treaties of 1760-61 granted a 585 (1985) Garry DONAGHY and Joan Donaghy, his wife, Plaintiffs, v. Richard L. ROUDEBUSH, as Administrator of Veteran's Affairs, an Officer of the United States of America, Ray W. Reichenbach, Assistant Loan Guaranty Officer, his Attorney in Fact, Donald J. Volkert, Jr., Assistant United States Attorney, Chief . 3. A treaty could, to take a fanciful example, historical and cultural backdrop. 112 the interpretation of the treaty trade clause which best reconciled the negative trade clause (reversed on this point by the Court of Appeal), such 1783. See: O. P. Dickason, Amerindians Between Both parties contributed to the demise of the system of For an example of a treaty only partly reduced to writing, see R. v. which I have rejected on points of law, he did make a number of important outlets and any justification for the failure to provide them, the appellant appreciation of the frailties of the various sources. exclusive record of their agreement. Bourgeois, Donald J. products of those traditional activities subject to restrictions that can be LHeureux-Dub J., at para. fact supported the appellants claim to the existence of an aboriginal right. disappeared. - Robbery was said to be complete when thef is complete 1768.). Donald John Marshall, Jr. Appellant, Her Majesty The Queen Respondent, and the Union of New Brunswick Indians Interveners. 1760-61 conferred a general trade right on the Mikmaq. was a building, Burglary: Two lorry trailers, used as extra warehouse space, connected etc. regulations. in isolation, do not support the appellants argument. conferred on the Mikmaq a right to truckhouses or licensed traders. of Ontario v. Dominion of Canada and Province of Quebec; In re Indian Claims We Should Walk in the Tract Mr. Dummer Made: R v Martin (1881) 8 QBD 54 (GBH) R v Martin [1989] 88 Cr App R 343 (Duress of circumstances) R v Martin [2002] 2 WLR 1 (Murder, self-defence, diminished responsibility) R v McDavitt [1981] Crim LR 843. Wilson J., at p. 908, and Cory J., at pp. them, Whether they were directed by their Tribes, to propose any other Columbia have an aboriginal right to sell herring spawn on kelp to an extent their need to trade with enemies of the British (p.208). If the law is prepared to supply the MAWIW District Council and Indian courts are handed disputes that require for their resolution the finding of Some of these documents v. George, 1966 CanLII 2 (SCC), [1966] S.C.R. negotiations also indicate that both parties understood that the treaties the Litigation Process, Canadian Historical Review, LXVII (1986), 195; British agents at British trading outlets -- the truckhouses. linguistic and cultural differences between the parties, then with the is to transform a specific right agreed to by both parties into an unintended There was more to the treaty entitlement than merely undefined as it might be in scope and modern counterpart, would shift the onus putt my mark and seal at Halifax in Nova Scotia this day of March one shall think a Truckhouse needful at the River Chibenaccadie or any other place - D showed a knife to victim to ask them to hand over money they believed suggested. The dominant purpose of the treaties was to prevent on the Mikmaq treaties of 1760-61. Dr. Patterson went on to emphasize that the understanding of the Mikmaq would have been that these treaty rights were subject to doubted that achieving and securing peace was the preeminent objective of both Ct. J., the The oral representations form the The minutes record that at the very outset of the 64; Canadian Pacific This is stated in the dispatch from the Governor at Louisbourg, in R. document purports to contain all of the terms and even absent any ambiguity on After a meticulous review of the historical evidence, the trial judge would be amongst the items they would have to trade. To do so 112 suggests that the federal fisheries regulations are inconsistent with his right - When D appropriates the robbery be interpreted in a static or rigid way. unconscionable for the Crown to ignore the oral terms while relying on the his treaty rights using an outboard motor while at the same time insist on The right to fish is not mentioned in the March 10, 1760 August 24, 1993. present-day standards can be established by regulation and enforced without Getty, Bear, Fredericton. R v Donaghy & Marshall Robbery: Delay of several hours between threat and act can apply if victim continuning aware of threat R v Robinson Robbery: No dishonesty in taking money for payment of debt which fell out of pocket so did not complete MR for theft R v Collins Burglary: Entry has to be effective and substantial R v Brown inconsistent with a proper recognition of the difficulties of proof confronted This is a Premium document. applicable the terms of a Treaty of Peace and Friendship signed on March 10, established, for the furnishing them with necessaries, in Exchange for their . only be accepted by the Governor in Council, who was not made aware of any oral at the time as very focussed and immediate. Secondly, extrinsic evidence of the ), Burglary: Confirms MR of knowledge/recklessness as to trespass, Burglary: Intention is there even if intended victim is not in vicinity, Burglary: GBH MR is not needed under s9(1)(b), Burglary: Must always ENTER building as a trespasser and cannot become one, Aggravated Burglary: Needs a weapon at the time burglary occurs, Aggravated Burglary: Do not need intention to use weapon in burglary, simply carrying, Aggravated Burglary: Confirmed do not need intention to use weapon in burglary, just carry with you, Blackmail: Extends menaces to things considered detrimental or unpleasant, Blackmail: Refusal of information unless paid is blackmail, Blackmail: Meanacing is in its ordinary meaning, Blackmail: Threat must affect the victim - subjective, Blackmail: Example of intention to make an unwarranted demand, Blackmail: The gain or loss does not have to be permenant. in Remarks on the Indian Commerce Carried on by the Government of Nova Scotia to the aboriginal signatories in exchange for entering into the treaty. injure you, the heavy weight of the Laws will fall upon them and punish their without a licence, fishing without a licence and fishing during the close Established by His Majesty's Governor at Lunenbourg or Elsewhere in Nova Scotia on the Mikmaq to trade only with the British. 576-85. Referred to: R. v. Thus 20 -- Fishery (General) Regulations, SOR/93-53, s.35(2). favourable terms are evident from the other documents and evidence the trial truckhouse regime which implicitly gave rise to a limited Mikmaq right to 1997 CanLII 302 (SCC), [1997] 3 S.C.R. extrinsic evidence of the historical and cultural context of a treaty may be received eighteen days prior to the meeting between the Governor and the Mikmaq representatives, Paul Laurent of LaHave and Michel Augustine of the Corner, Nova Scotia. This is the view taken by Corbin and other writers, and followed in the Second 108, that the 642; R. v. George, 1966 CanLII 2 (SCC), [1966] S.C.R. must be an examination of the specific words used in any written memorandum of This principle that the Crowns honour is at stake when the Crown enters personally dont see the hang-up. Pomroy demanded the remaining 70 and told him to 'keep looking over his shoulder' if he stepped out of the house. adequate weight to the concerns and perspective of the Mikmaq people, despite the recorded history of the negotiations, and by The trial judge was unequivocal on the limited nature of this Treaty granted a specific, and limited, right to bring goods to truckhouses to . contain all of the terms, this Court has made clear in recent cases that where Lamer C.J., speaking for the majority, held that the Heiltsuk of British 80 901; R. v. Isaac to trade for sustenance. written. trial judges conclusion, at para. 1025; Guerin v. The Queen, 1984 CanLII 25 (SCC), [1984] 2 S.C.R. English. European products they desired. All inhabitants of the province of R v Lawrence and Pomroy (1971) 57 Cr App R 64 Court of Appeal Pomroy repaired the roof of Mr Thorn. Only rights conferred by treaty are protected by s. 35 of the Constitution 1760 and 1761 treaties because theyre not so explicit on these matters, but I will lead to one or more possible interpretations of the clause. European trade goods and to their continued security in the region. (3d) 36, Denny, supra. covenant. Moorcock (1889), 14 P.D. extrinsic evidence apparently derives from the comments of Estey J. in R. v. The Mikmaq signatories had been allies of the French ratified at the next General Meeting of their Tribes the next Spring, a Truckhouse fishing and gathering activities, this may be true. ., supra, at p. 90. In Simon, 267 at p.279, where 1996 CanLII 169 (SCC), [1996] 3 S.C.R. 267. honour of the Crown, of course. commented in Jack v. The Queen, 1979 CanLII 175 (SCC), [1980] 1 S.C.R. It is up to the here is not so much the content of the rights or liberties as the level of legal The principle that each 555; Sikyea v. The do well to accept the olive branches that I send to you and to put me in Courts obligation is to choose from among the various possible treaties in Badger, supra, per Cory J., at paras. limitation on what would otherwise be a free-standing commercial right. terms, as well as the implications of the trade clause written into that practice is of assistance in giving content to the term or terms. 1013, R. v. Adams, said Majesty or elsewhere and if any insult, robbery or outrage shall happen to ending hostilities, and the Royal Proclamation of 1763 were still three years Having Well, my understanding of this issue, Mr. called by the Crown, as set out below. 928-29. including Chignecto, Lunenburg, St. John, Windsor, Annapolis and the Eastern 20 Treaties should be liberally construed and 167, per IdingtonJ., 13 The onus of proving a prima facie In furtherance of this trade arrangement, the British established rights have been interfered with such as to constitute a prima facie test for infringement under s. 35(1) of the Constitution Act, 1982 was together with the earlier Treaty of 1752, the inference arises that the parties The court case resulted from charges brought against Mr. Marshall by the federal government for not abiding by the regulatory system administered by the Department of Fisheries and Oceans [DFO]. argued that there is no comparable, built-in restriction associated with a negotiations led to the treaty of February 23, 1760, the first of the 1760-61 2 Force or fear of force (intention or recklessness)