R. v. Francis (P.L.), 2003 NSPC 20

• Judge: Batiot, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: April 25, 2003
• Jurisdiction: Nova Scotia
• Citations: 2003 NSPC 20;(2003), 216 N.S.R.(2d) 211 (PC)

R. v. Francis (P.L.) (2003), 216 N.S.R.(2d) 211 (PC);

 680 A.P.R. 211

MLB headnote and full text

Temp. Cite: [2003] N.S.R.(2d) TBEd. AU.050

Her Majesty The Queen v. Peter L. Francis

(C#999726; C#999727; 2003 NSPC 20)

Indexed As: R. v. Francis (P.L.)

Nova Scotia Provincial Court

Batiot, P.C.J.

May 30, 2003.

Summary:

An aboriginal fisherman was charged under the Fisheries Act and Atlantic Fishery Regulations with fishing for lobsters without being authorized to do so and with fishing with or having on board his vessel lobster traps without valid tags attached. The fisherman claimed a treaty right to fish for lobster in the area during the summer.

The Nova Scotia Provincial Court held that the fisherman failed to prove a treaty right to fish for lobster. He was found guilty of having untagged lobster traps, but acquitted of unauthorized fishing on the basis of due diligence.

Fish and Game - Topic 809

Indian, Inuit and Métis rights - General principles - Treaty rights - Proof of - [See Indians, Inuit and Métis - Topic 6012 ].

Fish and Game - Topic 2107

Fishing offences - Defences - Due diligence - The accused aboriginal fisherman was charged with fishing for lobsters without being authorized to do so, contrary to s. 14(1)(b) of the Atlantic Fishery Regulations and s. 78 of the Fisheries Act - The fisherman fished under licence from the Mi'kmaq Fish and Wildlife Commission for three years - Federal officials knew this and did not interfere - Two days after learning that this practice would no longer be acceptable, the fisherman retrieved his traps and was bringing them ashore pending resolution of the dispute as to who had the authority to issue licences - Unknown to the fisherman, his band had been offered licences for food, social and ceremonial purposes, and tags were distributed - The accused received none - The Nova Scotia Provincial Court found the accused not guilty on the basis of due diligence - Upon learning that federal officials would no longer recognize the Commission licence, the fisherman acted reasonably in retrieving his traps - See paragraphs 26 to 30.

Indians, Inuit and Métis - Topic 6012

Aboriginal rights - General - Evidence and proof - An aboriginal fisherman claimed a treaty right to fish for lobster in St. Mary's Bay during the summer based on the Treaty of 1752 - The fisherman was unable to show, as a member of the Acadia First Nation, that the Treaty applied to his band - The Nova Scotia Provincial Court held that the evidence presented was insufficient to satisfy the legal requirement of proving the existence of an aboriginal or treaty right - The court stated that "the evidence does not establish an aboriginal right to fish for food lobsters in St. Mary's Bay since there is no evidence to show that it was an integral and distinctive aspect of the Mi'kmaq group to which Mr. Francis belongs and that the practice existed at the time of European encounter" - See paragraphs 6 to 25.

Cases Noticed:

R. v. Saunders (1999), 94 N.S.R.(2d) 224; 247 A.P.R. 224 (C.A.), refd to. [para. 5].

Ship Frederick Gehring Jr. v. R. (1897), 27 S.C.R. 271, refd to. [para. 5].

R. v. Simon, [1985] 2 S.C.R. 387; 62 N.R. 366; 71 N.S.R.(2d) 15; 171 A.P.R. 15, refd to. [para. 6].

R. v. Johnson (S.G.) (1990), 122 N.S.R.(2d) 280; 338 A.P.R. 280 (Prov. Ct.), refd to. [para. 9].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201, refd to. [para. 10].

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. 12].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 15].

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, refd to. [para. 16].

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207, refd to. [para. 16].

R. v. Denton (1991), 105 N.S.R.(2d) 357; 284 A.P.R. 357 (C.A.), refd to. [para. 26].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 26].

Authors and Works Noticed:

Grand Council of Micmacs, Union of Nova Scotia Indians (UNSI) and Native Council of Nova Scotia (NCNS), The Mi'kmaq Treaty Handbook, generally [para. 6].

Counsel:

Lori-Ann Esser, for the Crown;

Peter L. Francis, on his own behalf.

This case was heard on April 25, 2003, at Comeauville, N.S., before Batiot, P.C.J., of the Nova Scotia Provincial Court, who delivered the following judgment on May 30, 2003.