R. v. Francis (M.) et al., (2007) 273 N.S.R.(2d) 14 (PC)

• Judge: Batiot, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: January 30, 2007
• Jurisdiction: Nova Scotia
• Citations: (2007), 273 N.S.R.(2d) 14 (PC);2007 NSPC 28

R. v. Francis (M.) (2007), 273 N.S.R.(2d) 14 (PC);

    872 A.P.R. 14

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. DE.003

Her Majesty The Queen v. Marilyn Francis, Peter Louis Francis, Marcel Marr, Derrick William Nevin, Jerome Patrick Paul, Peter Allan Paul, Leander Phillip Paul, Stephen Peter Paul and Leon Russell Robinson (defendants/applicants)

(C#1587995; 1587997; 1587999; C#1601505; 1601506; 1601507; C#1583685; 1583686; 1583687; C#1589148; 1589151; 1589153; 1589155; 1589157; C#1583719; 1583720; 1583721; C#1598016; 1598017; 1598018; 1598019; 1598020; 1598021; 1395513; 1395515; 1395517; 1395519; C#1577062; 1577065; 1577068; 1592280; 1592284; 1592288; C#1577064; 1577067; 1577070; C#1592281; 1592285; 1592289; 2007 NSPC 28)

Indexed As: R. v. Francis (M.) et al.

Nova Scotia Provincial Court

Batiot, P.C.J.

April 3, 2007.

Summary:

The applicants were aboriginal and members of the Indian Brook Reserve, near Truro, or the Acadia Band, near Yarmouth, Nova Scotia. They faced various fishery offences, alleged to have occurred in St. Mary's Bay, Digby County, and raised aboriginal and treaty rights in their defences. Crown counsel conceded that none had the ability or the financial means to present the defence and none had qualified for Legal Aid. Each applied for state funded counsel.

The Nova Scotia Provincial Court held that the proposed defence was not relevant to the charges of obstructing fisheries officers; the evidence adduced by the Indian Brook applicants was insufficient to establish an air of reality to the proposed defence; the Acadia Band applicants had met such a threshold, had made reasonable efforts to obtain alternative funding, unsuccessfully, and were entitled to a stay of proceedings pending the appointment of counsel at state expense.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - The applicants were aboriginal and members of the Indian Brook Reserve, near Truro, or the Acadia Band, near Yarmouth, Nova Scotia - They faced various fishery offences alleged to have occurred in St. Mary's Bay, Digby County, and raised aboriginal and treaty rights in their defences - Crown counsel conceded that none had the ability or the financial means to present the defence and none had qualified for Legal Aid - Each applied for state funded counsel - The Nova Scotia Provincial Court held that the Acadian Band applicants had made out a case that they required state funded counsel to make full answer and defence and they were entitled to a stay of proceedings pending the appointment of counsel at state expense - See paragraphs 101 and 102.

Civil Rights - Topic 4631

Right to counsel - Appointment of counsel by the court or the state - General - The applicants were aboriginal and members of the Indian Brook Reserve, near Truro, or the Acadia Band, near Yarmouth, Nova Scotia - They faced various fishery offences alleged to have occurred in St. Mary's Bay, Digby County, and raised aboriginal and treaty rights in their defences - Crown counsel conceded that none had the ability or the financial means to present the defence and none had qualified for Legal Aid - Each applied for state funded counsel - The Nova Scotia Provincial Court held that the proposed defence was not relevant to the charges of obstructing fisheries officers - In the prosecution of strict liability offences (as in these cases), proof of the actus reus was not difficult or complex; nor was the usual defence, ordinarily, except that of a treaty or aboriginal right, a complex procedure - Crucial therefore was whether such defence was relevant at all, or had an air of reality - It had already been held that an aboriginal or treaty right was irrelevant to the defence of such a case - See paragraphs 18 to 22.

Civil Rights - Topic 4631

Right to counsel - Appointment of counsel by the court or the state - General - The applicants were aboriginal and members of the Indian Brook Reserve, near Truro, or the Acadia Band, near Yarmouth, Nova Scotia - They faced various fishery offences alleged to have occurred in St. Mary's Bay, Digby County, and raised aboriginal and treaty rights in their defences - Crown counsel conceded that none had the ability or the financial means to present the defence and none had qualified for Legal Aid - Each applied for state funded counsel - The Nova Scotia Provincial Court held that the evidence adduced by the Indian Brook applicants was insufficient to establish an air of reality to the proposed defence - They advanced no evidence to link their status as aboriginals living in Indian Brook to their claim to fish for lobsters in St. Mary's Bay - They held a belief in their aboriginal or treaty rights to do so, but that did not equate to evidence for such a claim - However, the Acadia Band applicants were in a different position given the proximity of Yarmouth to the waters of St. Mary's Bay where they were apprehended - While the 1752 Treaty did not assist them, their defence based on their claim of aboriginal rights to fish based on their aboriginal status, had an air of reality - The court stated that "This is not expert evidence, yet one within their own knowledge, learned through generational history. It is of course hearsay, but one which may be admitted at trial, where it will be buttressed by that of elders, and likely experts. It is entitled to consideration." - See paragraphs 71 to 91.

Civil Rights - Topic 4633

Right to counsel - Appointment of counsel by the court or the state - Where accused impecunious - Francis and her son were aboriginal - They faced various fishery offences and raised aboriginal and treaty rights in their defences - They applied for state funded counsel - The Nova Scotia Provincial Court held that Francis and her son had made reasonable efforts to obtain alternative funding - Francis had applied for Legal Aid, gone through its appeal process to receive the necessary legal representation and been rejected - Throughout her evidence, Francis had taken a very strong stand that such "inherent rights" belonging to "full blooded Indians" ought not to be bartered away even by her Band Council - It appeared that in making such a case, even her Band Council might not respond to her request - She was left on her own - The same results applied to her son - Although he was not as active in making such representations, it was difficult to distinguish one case from the other on that issue - When recognized, such rights were communal in nature and not personal or individual - It was thus reasonable for Francis to ask for a contribution, or help, from her Band Council - Her evidence was that it was not available, for various reasons, or she was met with silence - See paragraphs 92 to 100.

Civil Rights - Topic 4633.1

Right to counsel - Appointment of counsel by the court or the state - Where party unable to represent self - [See first Civil Rights - Topic 4631 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3133 ].

Courts - Topic 563

Judges - Powers - To appoint counsel - [See both Civil Rights - Topic 4631 and Civil Rights - Topic 4633 ].

Cases Noticed:

R. v. Paul (G.C.) (2002), 207 N.S.R.(2d) 378; 649 A.P.R. 378; 2002 NSPC 25, folld. [para. 9].

R. v. Lalo (C.) (1998), 173 N.S.R.(2d) 149; 527 A.P.R. 149 (S.C.), refd to. [para. 10].

R. v. Chan (M.K.) (2000), 261 A.R. 351; 225 W.A.C. 351 (C.A.), refd to. [para. 10].

R. v. Collins (1987), 74 N.R. 276; 33 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 10].

R. v. Keating (K.K.) (1997), 159 N.S.R.(2d) 357; 468 A.P.R. 357 (C.A.), refd to. [para. 10].

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), refd to. [para. 11].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 11].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321, refd to. [para. 12].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161; 101 C.C.C.(3d) 193, refd to. [para. 13].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81; 41 C.C.C.(3d) 385, refd to. [para. 13].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 13].

R. v. Rain (M.M.) (1998), 223 A.R. 359; 183 W.A.C. 359; 130 C.C.C.(3d) 167 (C.A.), leave to appeal refused (1999), 239 N.R. 197; 250 A.R. 192; 213 W.A.C. 192 (S.C.C.), refd to. [para. 13].

R. v. Taylor (J.W.) (1996), 150 N.S.R.(2d) 97; 452 A.P.R. 97 (T.D.), affd. (1996), 154 N.S.R.(2d) 378; 452 A.P.R. 378 (C.A.), leave to appeal refused (1997), 222 N.R. 160; 160 N.S.R.(2d) 80; 473 A.P.R. 80 (S.C.C.), refd to. [para. 13].

R. v. Bailey (L.E.) (2001), 195 N.S.R.(2d) 190; 609 A.P.R. 190 (C.A.), refd to. [para. 14].

R. v. Bartibogue (B.) (2002), 250 N.B.R.(2d) 73; 650 A.P.R. 73 (T.D.), refd to. [para. 18].

R. v. Whynot (S.) (1983), 61 N.S.R.(2d) 33; 133 A.P.R. 33; 9 C.C.C.(3d) 449 (C.A.), refd to. [para. 18].

R. v. Osolin (1993), 162 N.R. 1; 38 B.C.A.C. 81; 62 W.A.C. 81; 86 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 18].

R. v. McDonald (A.P.) (2001), 197 N.S.R.(2d) 318; 616 A.P.R. 318 (C.A.), folld. [para. 20].

R. v. Nikal (J.B.), [1996] 1 S.C.R. 1013; 196 N.R. 1; 74 B.C.A.C. 161; 121 W.A.C. 161, folld. [para. 20].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 533; 247 N.R. 306; 179 N.S.R.(2d) 1; 553 A.P.R. 1, refd to. [para. 24].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 75].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81; 137 D.L.R.(4th) 289, refd to. [para. 76].

R. v. Sundown (J.), [1999] 1 S.C.R. 393; 236 N.R. 251; 177 Sask.R. 1; 199 W.A.C. 1; 132 C.C.C.(3d) 353, refd to. [para. 77].

R. v. Marshall (S.F.) et al.; R. v. Bernard (J.) (2002), 202 N.S.R.(2d) 42; 632 A.P.R. 42; 2002 NSSC 57, revd. (2003), 218 N.S.R.(2d) 78; 687 A.P.R. 78; 2003 NSCA 105, revd. (2005), 336 N.R. 22; 235 N.S.R.(2d) 151; 747 A.P.R. 151; 2005 SCC 43, refd to. [para. 80].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 87].

Pawis v. R., [1980] 2 F.C. 18; 102 D.L.R.(3d) 602 (T.D.), dist. [para. 100].

Authors and Works Noticed:

MacAulay, Mary Locke, Aboriginal & Treaty Rights Practice (2000), generally [para. 80].

Counsel:

Elizabeth Buckle, for the Crown;

All applicants, self-represented.

This application was heard on October 17 and 18, 2006, and January 30, 2007, by Batiot, P.C.J., of the Nova Scotia Provincial Court, who delivered the following decision on April 3, 2007, as amended.