In R. v. Jacob, aboriginal defendants were hunting moose from a van on a gravel road at night. They were charged with hunting at night contrary to a provision of the Fish and Wildlife Conservation Act, 1997 ("Act") and one of them was also charged with discharging a firearm across a road contrary to another provision of the Act. The Justice of the Peace before whom the trial was heard rejected the defendants argument that they had a defence to the charges because they were exercising their right to hunt under Treaty 9 at the relevant time. They were convicted and their conviction was affirmed by the summary conviction appeal judge. They appealed their convictions further to the Ontario Court of Appeal.
The Court of Appeal dismissed their appeal and upheld the convictions on the following grounds:
The Court held that section 17(1)(e) of the Act makes it an offence to "discharge a firearm in or across the travelled portion of a right of way for public vehicular traffic". In order to establish that the land in question is a "right of way for public vehicular traffic" the Crown is not required to provide that the provincial government or someone else with legal authority has granted the public the right to use the land by way of dedication or other legal process. One of the purposes of section 17(1)(e) is to prevent members of the public who are travelling in vehicles from the dangers arising from the discharge of firearms. That purpose can best be achieved by interpreting the phrase "a right of way for public vehicular traffic" broadly so as to protect member of the public driving on all lands that are open to public use in vehicles. There is evidence in this case that the road was a roadway used by the public. Accordingly, the Court held that the defendant was properly convicted of the offence under section 17(1)(e) of the Act.
The Court further held that the aboriginal right to fish and hunt in Treaty 9 is subject to an exception for "such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes". The test for determining whether lands are "taken up" is whether the use being made of the land is visibly incompatible with the exercise of the treaty right. Whether or not land has been taken up is a question of fact and must be resolved in a case-by-case basis. Hunting on the road in question in this case was visibly incompatible with the use to which the road had been put for many years. The Court held that it was a well-established primary haul road used by both lumber company employees and the public. Roadways used by the public are incompatible with hunting. The defendants knew about the uses to which the road was put. As a result, the Court found that they were properly convicted of hunting at night.