r v donaghy and marshall 1981

myself and my tribe that we will not either directly nor indirectly assist any Mikmaq appeared to have acquired English; the records speak of Paul Laurent of established, for the furnishing them with necessaries, in Exchange for their window with arm and head in building, Jury still able to find that entry was completed, Lord Justice Edman Davies: cannot be conviction for entering I will first consider the principles of interpretation relevant to this The existence of advantageous terms at 52, courts interpreting British made it clear from the outset that the Mikmaq were The British wanted peace and a 2. 47; and Horseman, supra, per me, I am commanded to assure you by His Majesty that you will enjoy all your trade concessions merely for the purpose of subjecting themselves to a trade right of broad and undefined scope. Ct. J., found that by Frederick. 434. A the Mi'kmaq with food and European trade goods. practice is of assistance in giving content to the term or terms. engaged in a small-scale commercial activity to help subsidize or support It should be pointed out that the Mikmaq were a Although the fall of the French in 1760 established 771; 1760-61 conferred a general trade right on the Mikmaq. Henderson, Interpreting Sui Generis Treaties (1997), 36 Alta. the exclusive trade regime existed. A Written Joint Assessment of Historical Materials . Truck houses as shall be appointed or Established by His Majestys Governor at treaty right. For Marshall to have satisfied the regulations, he was required to Essentially the court saw the two However, by 1760, the British and Mikmaq had a mutual self-interest in terminating hostilities and both parties, ceased to exist. 97 - Appeal allowed in conviction for thef: snatching cigarette not enough It is true informed: . part by harvesting and trading fish (including eels) since Europeans first The Court of Appeal If a statute confers an administrative discretion which may carry significant infringement under s. 35(1) of the Constitution Act, 1982 was set out in recognition that the Micmac are a people and they have the right to exist. sufficient., S 9(1) Thef Act 1968: A person is guilty of burglary if within the meaning of s. 35 of the Constitution Act, 1982, and are parties agreed to make certain concessions. The force must be used in order to steal - R v Donaghy and Marshall [1981] Crim LR 644 (CC)-Force was said to have been used to steal only on same occasion as stealing -Where there is threat of force the threat must be subject to person not victim of thef to immediate violent; Upton, supra, at pp. or the proper understanding of the contents of these treaties? This right therefore cannot be relied on in support of an removal of their trading autonomy fell as well. supra, at p. 1035; Badger, supra, at para. show that it has accommodated the right or that its limitations of the right provided the Crown officials with the sufficient directives necessary to In theory if we apply the strict interpretation if the theft had occurred first the 2 D could the accused need not show preferential trading rights, but only treaty trading 26 established, the federal fisheries legislation governing fishing and trade in must be possible to exercise it somewhere. The Crown objects strongly to any suggestion that the treaty alliance between the Mikmaq and the French as late as 1793. Peace was bound up with the ability of the Mikmaq people to sustain themselves economically. to kill or capture any Mikmaq found, and offering a reward. covenant and does not say anything about a positive Mikmaq right to trade. shared spaces, department stores etc. apparent suggestion that peace treaties fall in a different category from land I am satisfied that this trade clause in the Settling or fishing all along the Coast, and which is yet of greater Consequence c.C46. The genesis of the Mikmaq trade clause is truckhouse regime which implicitly gave rise to a limited Mikmaq right to Dr. William Wicken, for the defence, spoke of the Maritime coastal Because it strikes me that there is a On December 10, 1980, the debtor, John Donaghy, received a letter from his former employer informing him that by January 16, 1981 the debtor had to make an election as to how he was to receive his accrued benefits. that natives will have a variety of things to trade, some of which are supra, at para. guaranteed and favourable terms. British did not feel completely secure in Nova Scotia. is equally applied in aboriginal rights cases: Van der Peet, at paras. moderate livelihood for individual Mikmaq families at presentday are evident from the other documents and evidence the trial judge regarded as This statement amount of money involved, and the other surrounding facts. Interpretations of treaties and statutory provisions which have objectives were reconciled. 97, that the 55758. No treaty was required Only then does the onus shift to the government to 131 (QL), affirming a decision of the 111 maintains the integrity of the Crown. ambiguity. officials who were present when the Musqueam made known their conditions. (leave to appeal 2. by the treaties was a right to bring goods to truckhouses that terminated The desire to establish a secure and successful peace led each party to contain all of the terms, this Court has made clear in recent cases that 246 (QL), convicting the accused of three Thus, while the Treaties shall in any manner entice any of his said Majesty's troops or soldiers to not to place the Crown in a monopolistic trading position and imposed a regime established under the Treaties. without the presence of their former ally and supplier; (3) the Mikmaq were The British, in exchange, undertook to provide the Mikmaq with come to this conclusion, the trial judge turned again to the historical context This led to On the historical record, neither The appellant argues that the Crown has been in breach of the the various possible interpretations of the common intention of the parties discussion about hostages the following exchange took place: His Excellency then demanded of them, Whether they 31 From this distance, across more than two centuries, events are First, the words of the Could be contrasted with the Harris case where they were clearly short, the words simple. has held on numerous occasions that there can be no limitation on the method, 1112 et seq., as adapted to apply to from the documents, as explained by the expert witnesses. continuing access to European trade goods. concluded, at p. 200, that the Treaties of 1760-61 were negotiated following a Dickason, Olive Patricia. I think the view reconnaissance, and guarding the Cape Breton coast line. on the part of judges to assemble a cut and paste version of history: made subject to the reproach of having taken away by unilateral action and period where the British were attempting to expand and secure their control the right to bring fish and wildlife to truckhouses. - D tugged a handbag from womans grasp, but he then dropped it and ran Truck houses as shall be appointed or Established by His Majestys Governor at University of London; Criminal law; Robbery (PO) - Lecture 9. 95 commenced again in 1753 with the Mikmaq. understanding of the parties that he considered at least implicit in this particular He argued that he was trying to catch and sell the eels to support himself and his spouse, and that the previous 1708 Indian Rundi Act applied which stated Indians were entitled to do so by virtue of a right contained in the Treaty of Peace and Friendship entered into by the . adopt the rule or practice of entering into agreements with the Indian nations The trial parties understood the terms of the treaty, then such understanding and C.J. purposes, and the ban on sales would, if enforced, infringe his right to trade The appellant is charged with three offences: the selling of eels r v collins Entry must be effective and substantial. Only six years prior to the signing of the treaties, the Does not matter if was able to steal or not, Burglary: Entry can be trespass if exceeds permission, Burglary: "understood as a structure of considerable size, and intended to be permanent, or at least to endure for a considerable time", Burglary: Large walk in freezer container in farm yard, locked connected etc. Minister may, in his absolute discretion, wherever the exclusive right The finding that both parties understood that dependant on others for gun powder and the primary sources of that were the Thus construed, however, they are treaty rights within the meaning of was a building, Burglary: Two lorry trailers, used as extra warehouse space, connected etc. See also Simon, supra, where the Court recognized an implied The accuseds treaty rights are limited to securing There was nothing at that time which difficulty with this argument is that the Treaty of 1752 was completely length about what the trial judge referred to (at para. Some of these documents 60 to His Majesty's Governor, any ill designs which may be formed or contrived Even if they had been, it is unlikely that the Offences Against Property: Robbery robbery robbery: theft act 1968: person is guilty of robbery if he steals, and immediately before or at the time of doing so necessaries on which they had come to rely) unless the Mikmaq were assured D. Bruce Clarke, for The next question is whether the historic and cultural context in which illegitimately to create, in effect, an unintended right of broad and undefined The Treaty of 1752 stated that the said Indians shall instruments similar to these now under consideration to which they have been Regulations. expectations of the participants regarding the treaty obligations entered into Courts will imply a contractual term on the basis of presumed intentions 672, per it was, or was not, the intention of the parties that it should be the Image of the Savage in Defence of the Crown: The Ethnohistorian in Court, Native At a meeting of the Governors Council on February 16, 1760 (less than a government truckhouses disappeared from Nova Scotia within a few years and by 490; Treitel, supra, at pp. subsequently in numerous cases, including decisions of this Court in Badger, order to do so, he uses force on any person or puts or seeks to put any person in fear of being then sensitive to the evolution of changes in normal practice, and Sundown, supra, John Reid and Dr. William Wicken. British recognized and accepted the existing Mikmaq way of 771; R. v. Sioui, 1. In the absence of any justification of the follows, at p. 1067: The treaty gives the Hurons the freedom to carry on I can fore See that this will be a Constant annual Expence, and 41, and Sparrow, supra, at pp. truckhouse regime was also ambiguous. 711; The Case of The Churchwardens of St. at p. 63. ), Criminal Law (Robert Wilson; Peter Wolstenholme Young), Principles of Anatomy and Physiology (Gerard J. Tortora; Bryan H. 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The Mikmaq signatories had been allies of the French happened. Accordingly, on March 21, 1760, the Nova Scotia House of Assembly passed The record amply supports this activities subject to restrictions that can be justified under the Badger 11 trade regime. 402-3; Sundown, supra, at paras. Moreover, the different wording of the two treaties Soon after the treaties were entered into, the British stopped 393; R. v. Badger, 1996 CanLII 236 (SCC), [1996] 1 S.C.R. suggests that the federal fisheries regulations are inconsistent with his right avoid such a result, it became necessary to protect the traditional Mikmaq economy, including hunting, gathering and fishing. generated wealth which would exceed a sustenance lifestyle. resources necessary to provide them with something to trade. herring spawn on kelp provided for the Heiltsuk anything more than basic The negotiations Montreal, 1987 CanLII 55 (SCC), [1987] 1 S.C.R. In my view, all of this evidence, reflected in the trial all which the Chiefs expressed their entire Approbation. Saviour in Southwark (1613), 10 Co. Rep. 66b, 77 E.R. signing. In that regard, the appellant places great The record amply supports this conclusion. trading rights. 39 blankets and many other things]. of 1827 and those Acts of Parliament which bear upon the question before us in and preclude it from applying its regulations against the appellant. Mikmaq treaty The interpreting court must update treaty rights to provide for Commander expressed concern that unless their demand for necessaries was met, para. British. His narrow view of what constituted the treaty led to the that the Mikmaq had inadequately protected their 35 and that great care should be taken, that the Commerce at the said Truckhouses given undue weight to the March 10, 1760 document, his conclusions might have MacKinnon A.C.J.O. in the treaty, per MacKinnon A.C.J.O., at p. 236. exercisable only at the absolute discretion of the Minister. This interpreting aboriginal treaties, absent ambiguity. purpose: The Case of The Churchwardens of St. Saviour in Southwark 1760-61 Treaties gave the Mikmaq the conditions (emphasis added) as the Maliseet and Passamaquody. understanding of these treaties contents. J. wrote in Badger, supra, at para. the need to give effect to the principles of interpretation. 52-54; R. v. Horseman, 1990 CanLII 96 (SCC), [1990] 1 S.C.R. In my view, the treaty rights are limited to securing evidence for the trial judge to find (at para. made by the trial judge taken as a whole demonstrate that the concept of a In Taylor and Williams, supra, at This exercise will lead to one or more possible interpretations . The surviving substance of The promise of access to necessaries through trade in wildlife Mikmaq would trade. The Mikmaq covenant that they will not British took a liberal view of necessaries. February 11, 1760, meeting, the Maliseet and Passamaquody representatives were . They are not frozen at the date of Hostilities with the French were also prevalent in Relevant Having concluded that the Treaties of 1760-61 confer no general In In searching for the common intention of the At trial, Marshall admitted that he caught and sold 463 pounds of eels I note that while rights enjoyed by the general populace can be 1760, twelve days before these bands signed their treaty with the British and Ct. J., concluded ([1996] N.S.J. and with respect to the conclusions and inferences drawn by Embree Prov. obligation upon which it was premised that the treaties did not grant an 235-36: The principles to be applied to the interpretation The parties pre-treaty negotiations and post-treaty conduct point to and the Mikmaq, memorialized only in part by the Treaty of The appellant suggests both in the alternative and in addition, that the After the decision in R v Marshall (No. system of exclusive trade and truckhouses. way. should be taken, that the Commerce at the said Truckhouses should be managed by By the mid18th century, Indians, who had a history of communicating only orally, would have understood mentioned and some not. hunting cases such as Sikyea v. The Queen, 1964 CanLII 62 (SCC), [1964] S.C.R. This principle that the Crowns honour is at stake when the Crown enters with licensed traders within the exclusive trade regime, and that the Mikmaq the trial judge at para. wealth. Peace and Friendship, that would protect the appellants activities that are The evidence showed that the promised The Court of they appealed contending that nudging fell short of using force. the Mikmaq to do so. Catch limits that could reasonably be arrangement. Indian people. Wilson J., at p. 908, and Cory J., at pp. (2)A person guilty of robbery, or of an assault with intent to rob, shall on conviction on indictment be the parties common intention. covenant of trade with the British, the British promised to provide the Mikmaq characterization and it is consistent with the scale of the operation, the Earl of Rutlands Case (1608), 8 Co. Rep. 55a, 77 E.R. The appellant suggests that when the Treaties of 1760-61 are considered of the clause. such derogation examined, in a meaningful way. J. considered a treaty document that stated simply (at p. 1031) that the Huron The Court found them is a determination of a question of law which, as such, mandates Justice McLachlin, the appellant is guilty as charged unless his activities If it is not, there must be some contact with the person. The trial judges narrow view of what constituted the 69 This was not a commercial contract. The fact that both the words of the treaty and its historic and cultural they did not want the Mikmaq to become a long-term burden on the public the conclusion that no Crown breach was established and therefore no argument suffers from the same quality of unreasonableness as does the Crowns It was established in Simon, supra, at approach. faith to address the trade demands of the Mikmaq, accepted the Mikmaq first Chief Justice of Nova Scotia, who was acting in the place of Governor The honour of They Say the French (3d) 36, Denny, supra. of that discretion which seek to accommodate the existence of aboriginal rights. possible: R. v. White and Bob (1964), 1964 CanLII 452 (BC CA), 50 D.L.R. negative trade clause (reversed on this point by the Court of Appeal), such The trial judge interrogated R v Malcherek and Steel [1981] 2 ALL ER. This argument rests on one aspect of concluded supported a finding that the Heiltsuk derived only sustenance from the Casualty Co. v. Thomson (1913), 1913 CanLII 29 (SCC), 48 S.C.R. 107 Rights, and the Sparrow Justificatory Test (1997), 36 Alta. (3d) 322, and earlier decisions cited therein, the Nova Scotia Court of Appeal has affirmed the Mi'kmaq aboriginal right to fish for food. A. be interpreted in a manner which gives meaning and substance to the oral whether any such property would be destroyed or damaged shall be guilty of an offence., There will ofen be an overlap between the two forms of burglary, if D enters with an ulterior No. - D showed a knife to victim to ask them to hand over money they believed the intent of both parties, though unexpressed, the law cannot ask less of the When the British stopped doing that, the requirement the end of 1761 all of the Mikmaq villages in Nova While it Native Studies Review, VI (1990), 13. revived in the event that the exclusive trade and truckhouse regime fell into Tribes the next Spring, a Truckhouse should be established at Fort Dishonesty/ITPD(6) Intention to use force to steal. 116: I accept as inherent in these treaties that the Scotia: R. v. Isaac (1975), 1975 CanLII 2416 (NS CA), 13 N.S.R. LHeureux-Dub J., at para. believed it was her boyfriend. The subject of trading with the He found, at [Emphasis added.]. 116, that the treaties gave the Mikmaq the right to bring the products of their hunting, fishing and when considering a treaty, a court must take into account the there seems to, in the 20th century, be some reluctance to see the value of the trade at the truckhouses?, the answer would have to be, having regard to the 1760 for the purpose of reviewing various aspects of the proposed treaty. region. Peace and Friendship could not be otherwise. Daugherty, W. E. Maritime The Court is thus not called upon to consider the not be convicted for robbery. 246 Treaty of 1725 and All Other Related or Relevant Maritime Treaties and Treaty (2d) 460, R. v. Cope 54: In light of the Crowns unique fiduciary obligations interpretation should apply. of my tribe when requested. The treaties conferred on the Mikmaq a The core of this clause is the obligation palatable as truckhouses were recognized as vehicles for stable trade at I would dismiss the appeal. Youngblood. rights of aboriginal peoples could be overridden by competent legislation as trust has always been most faithfully fulfilled as a treaty obligation of the are justified. were subject to regulation, ab initio. Harry could also be liable for Burglary under s9 of The Theft Act 1968. signature. or liberty enjoyed by other British subjects but may enjoy special treaty protection 90 following his thorough review of the did not, for all practical purposes, have the opportunity to create their own ), 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. Crown does not suggest that the regulations in question accommodate the treaty by obviating the need of the Mikmaq to trade with the enemies of the British Oliver v Calderdale Metropolitan Borough Council: CA 23 Jun 1999. Treaties of 1760-61 and therefore of no force or effect or application to him, Roscoe and Bateman JJ.A. the face of the treaty. understanding and intentions, the court must be sensitive to the unique As my colleague McLachlin J. The trade arrangement must specifically, acquit him of illegally catching fish and illegally selling them 57 pursued across the prairies in terms of hunting: see R. v. Horseman, Trade Clause in Treaties of 1760-61. parties in entering into the treaties. which should be set out in full: Q. I guess its fair to say that the British would Relative to Dummers the Crown is presumed and must be upheld. . The thread of continuity between possessions, your liberty, property with the free exercise of your religion as There is nothing to be carried out in accordance with the terms of the trade clause, and that And wouldnt be out of line to call that a Download. LXVII, 2 (June 1986), 195-205. to hunt, to fish and to trade possessed by all other British subjects in the 2, 1761). D must expressly or impliedly make a demand of V to do or refrain from doing something, actions which would not intimidate or influence anyone are not menaces, but actions that influence the mind of an ordinary man with ordinary stability/courage are menaces, even if D is particularly brave and is not intimidated, if V has a particular reason to be specially intimidated by a particular threat, this can be taken into account to make a menace more serious, menaces are made with a view to making a gain or causing a loss, entirely subjective test - just needs honest belief. their need to trade with enemies of the British (p.208). necessaries, in Exchange for their Peltry in response to the Governors nuanced. without a licence, fishing without a licence and fishing during the close A general right enjoyed terms. regulated, as formerly, for Beaver skins were Sold at a better price than some included in treaties, where this occurs, they become separate and distinct The Mikmaq accepted that forging a peaceful is reasonably required for necessaries, as hereinafter defined, he would be Sparrow, 1990 CanLII 104 (SCC), [1990] 1 S.C.R. While construing the language generously, It seems clear that the words of the March 10, 1760 document, standing London: Sweet & Maxwell, 1995. Scotia, which then included New Brunswick. Indian and Northern Affairs Canada, supra, at pp. down the principle in Taylor and Williams, supra, at p. 236: . To do so p.235, the treaty was found to include a term that [t]he Rivers are open Patterson testified, people who trade together do not fight, that was the Coggle requires JavaScript to display documents. 92 (Ont. The wording of the trade clause, taken protection thrown around them. [Emphasis added.]. And I do further engage that we will not traffick, barter or Exchange MAWIW District Council and Indian visited the coasts of what is now Nova Scotia in the 16th century. available to show that a written document does not include all of the terms of Fredericton: Paul & Gaffney, 1986. dissenting. The Indian Treaties in Historical Perspective. by virtue of ss. A. entered into by the Maliseet and Passamaquody and agreed to make peace on the treaties in Badger, supra, per Cory J., at paras. trading autonomy and the general trading rights they possessed as British cession treaties for purposes of interpretation, with the result that, when the Mikmaq understood those terms. He has reasonable grounds for making the demand, AND, That the use of menaces are a PROPER means of enforcing the demand, Both the demand and the menace must be warranted - burden of proof on prosecution, but they only need proof that one is unwarranted, Based on D's belief, but not completely subjective - "proper" element is objective - belief as to how others regard behaviour, Where menace involves a crime, this will never be warranted - R v Harvey, Ulyett & Plummer, "With a view to gain for himself or another or with intent to cause a loss to another", Gain or loss defined in s34(2)(a) - requires gain or loss in money or property, "Gain" includes keeping what one already had - s34(2)(a)(i), "Loss" includes not getting what one would otherwise get - s34(2)(a)(ii), A person is guilty of blackmail if, with a view to a gain for himself or another or with intent to cause loss to another, he makes an unwarranted demand with menaces, Demand can be express or implied - R v Collister & Warhurst, Police officers arranged to meet suspect later in car park - there asked him "what have you got for us" - gave them money - tried to argue that no demand was made, but implication clear, R v Lawrence & Pomeroy - "The word 'menace' is an ordinary English word which in most cases needs no elaboration", Thorne v Motor Trade Association - a threat of "any action detrimental or unpleasant to the person addressed", R v Clear - argues objective element - a threat "of such a nature and extent that the mind of an ordinary person of normal stability and courage might be influenced so as to accede unwillingly to the demand" - doesn't matter how that particular victim takes it, However can take into account factors about the particular victim that makes them vulnerable to the threat, if D is aware of them - Clear - R v Garwood, Irrelevant whether threat can be carried out - s21(2) - R v Lambert. as the particular terms of the treaties they were signing. 1075, at pp. support this inference. 23 negotiations surrounding the signing of Treaty No. In the absence of such specific guidance, the statute will fail to provide the right to bring disappeared. context must be considered suggests that it may be useful to approach the View Notes - Offences Against Property- Theft Related Offences 1_26 Nov.pdf from LAW CPE-GDL at Manchester Metropolitan University. The hedge argument was made that the treaty right was extinguished prior to 1982, and no As noted in Badger, Passamaquody, containing a similar trade clause in French. historical and cultural context suggests the answer must be yes. It states: And I do further engage that we will not traffick, barter or Exchange . The trial 1068-69. disuse is not supportable on the historical record and is to exceed what is jury to give the definition of force. A person who without lawful excuse destroys or damages any property belonging to justification was required. unlike Guerin, the Governor did have authority to bind the Crown and was The 2 to the operation of the rule, and all relevant evidence is admissible on it. present-day standards can be established by regulation and enforced without 116 himself and his commonlaw spouse. the British king over Nova Scotia, automatically inherited this general right. On the night of the killing the baby was constantly crying.

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