Case commented on: R. v. Hirsekorn, 2011 ABQB 156
R. v. Hirsekorn is a summary conviction appeal of convictions for shooting wildlife not in regular season and being in possession of wildlife without a valid permit, contrary to ss. 25(1) and 55(1) of the Wildlife Act, RSA 2000, c. W-10. At trial, Provincial Court Judge F. C. Fisher rejected Hirsekorn’s argument that the charges should be dismissed because he had an unextinguished Métis right to hunt for food under s.35 of the Constitution Act, 1982 (see 2010 ABPC 385). The Blood Tribe and Siksika Nation applied to the Alberta Court of Queen’s Bench for intervenor status in the appeal.
Chief Justice Neil Wittman cited Rule 2.10 of the new Alberta Rules of Court, Alta. Reg. 124/2010, which provides that “a Court may grant status to a person to intervene in an action subject to any terms and conditions and with the rights and privileges specified by the Court.” Wittman, C.J. then cited a number of cases related to intervenor status decided before the new Rules of Court came into effect. These cases were seen to establish the following principles: “an intervention may be allowed where the proposed intervenor is specially affected by the decision facing the Court or the proposed intervenor has some special expertise or insight to bring to bear on the issues facing the court” (Papaschase Indian Band v. Canada (Attorney General), 2005 ABCA 320 at para. 2); courts are “generally more lenient” in granting intervenor status in cases involving constitutional issues (Papaschase at para. 6); intervenor status may be granted where the party’s arguments might not fully protect the intervenor’s interests; courts should grant intervenor status sparingly, particularly in criminal proceedings, given concerns about delay, prejudice, and distortion of the issues (Hirsekorn at paras. 13, 15, 16, 21). Chief Justice Wittman found it unnecessary to decide whether the new Rules of Court apply to a summary conviction appeal, as “in this case, nothing in particular turns on that issue” in light of the existing case law (at para. 16). It appears, then, that the new Rules have not changed the approach to granting intervenor status in Alberta.
Applying the test for intervenor status, Wittman C.J. held that the proposed intervenors had a “specific and significant interest in the outcome of the appeal”, as a finding of a Métis right to hunt and fish in their traditional and Treaty #7 territories “would logically dilute the fish and game available” to members of the Blood Tribe and Siksika Nation (at para. 17). On the question of whether the proposed intervenors would bring a special perspective to the appeal, Wittman C.J. noted that the Alberta government had raised concerns about the introduction of arguments related to the balancing of the s. 35 rights of First Nations and Métis, as this matter was not in evidence or argued at trial. Nevertheless, he held that the proposed intervenors “may bring a fresh perspective to the issues the Court must decide” (at para. 24), and granted them intervenor status with several conditions attached. The intervenors may only address issues related to the content and application of the test for Métis rights from R v. Powley,  2 S.C.R. 207 as well as whether the appeal should be dismissed as a collateral attack on the Wildlife Act, they can only rely on the facts and evidence set out in the record, they have no right of appeal, and they must bear their own costs of the intervention (at para. 25).