Digest: R v Desjardin, 2018 SKPC 52

• Date: September 18, 2019

Reported as: 2018 SKPC 52

Docket Number: PC18056 , 24004723

Court: Provincial Court

Date: 2019-09-18

Judges:

• Lavoie

Subjects:

• Aboriginal Law � Hunting and Fishing Rights
• Constitutional Law � Charter of Rights, Section 25, Section 35

Digest: The accused was charged with violating s. 7(2)(b) of the Saskatchewan Fishery Regulations, 1995 by unlawfully fishing in an area of Canoe Lake, specifically Jans Bay, that had been closed to all fishing since 1993 because of overfishing by the local commercial fishery industry. The accused, a status Indian with Aboriginal and Treaty 10 rights, was fishing for food. He had used a net in the restricted area and had caught eight suckers, two walleye and one northern pike. The Bay was very close to the residence of the accused on the Canoe Lake First Nation and was his preferred area to fish. The remainder of Canoe Lake was subject to restrictions governing all fishing but open to unlimited Treaty sustenance fishing all year round. The accused admitted to the actus reus of the offence. Under the Constitutional Questions Act, 2012 the accused gave notice that he would argue that s. 7(2)(b) of the regulations was invalid because it restricted his Treaty and Aboriginal right to fish food in the restricted area as defined by the Regulations; infringed his Treaty and Aboriginal right to fish for food as protected by s. 35(1) of the Constitution Act, 1982; and infringed his Treaty and Aboriginal right to fish for food as protected by s. 25 of the Charter of Rights. The agreed Statement of Facts confirmed the accused�s Aboriginal Treaty status and right to sustenance fishing. The Crown�s major witness was an expert in fish biology and he testified that the restricted area had been closed to protect it for walleye spawning. He stated that the closed area could not be opened for sustenance fishing. The conservation effort had been supported by the Canoe Lake Band Council.
HELD: The accused was found guilty. The court found that the accused had failed to show a breach of his Treaty fishing right that would raise a defence or a Charter remedy to the charge against him: 1) the challenged regulations were within the implied common law limitations on Aboriginal fishing rights; 2) alternatively, the regulations fell within the provisions that permitted such regulations in Treaty 10; 3) alternatively, if they were not within the implied limitations of the right, the evidence had not...