R. v. Marshall (D.J.), Jr., (1997) 159 N.S.R.(2d) 186 (CA)

• Judge: Roscoe, Bateman and Flinn, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: March 26, 1997
• Jurisdiction: Nova Scotia
• Citations: (1997), 159 N.S.R.(2d) 186 (CA)

R. v. Marshall (D.J.) (1997), 159 N.S.R.(2d) 186 (CA);

    468 A.P.R. 186

MLB headnote and full text

Donald John Marshall, Jr. (appellant) v. Her Majesty The Queen in Right of Canada (respondent)

(C.A.C. No. 129874)

Indexed As: R. v. Marshall (D.J.), Jr.

Nova Scotia Court of Appeal

Roscoe, Bateman and Flinn, JJ.A.

March 26, 1997.

Summary:

The accused treaty Indian was convicted of three offences under the Fisheries Act relat­ing to the catching and sale of eels (i.e., no licence to fish or sell and fishing during closed season). The trial judge rejected the accused's defence that the Treaties of 1760-61 gave the accused a constitutionally pro­tected right to trade in fish without govern­ment regulation (i.e., preferential right to trade). The accused appealed directly to the Court of Appeal on a point of law (Criminal Code, s. 830).

The Nova Scotia Court of Appeal dis­missed the appeal. The trial judge did not err in concluding that the Treaties of 1760-61 did not grant a right to trade or sell fish free from any government regulation.

Estoppel - Topic 386

By record (res judicata) - As a bar to subsequent proceedings - Issues decided in prior proceedings - An accused treaty Indian initially defended Fisheries Act charges on the basis of the Treaty of 1752 - The trial judge permitted the Crown to call evidence that the Treaty of 1752 had been extinguished by hostilities, notwith­standing a 1985 Supreme Court of Canada case (R. v. Simon) where the same issue had not been proved - The accused claimed that the issue was res judicata, having been already determined by the Supreme Court - The Nova Scotia Court of Appeal affirmed that the issue of extinguishment by hostilities was not res judicata - The issue was not "clearly and conclusively determined" by the Supreme Court - The Supreme Court merely decided that the evidence presented in the Simon case did not support a finding of extinguishment by hostilities - See para­graphs 83 to 99.

Fish and Game - Topic 967

Indian, Inuit and Métis rights - Right to fish and regulation of Indian fishery - Treaty Indians - In defence to offences under the Fisheries Act, the accused treaty Indian claimed a constitutionally protected right to trade in fish without government regulation under the Treaties of 1760-61 - The Nova Scotia Court of Appeal affirmed that the Treaties did not expressly or impliedly grant any right to trade in fish over and above the rights enjoyed by all citi­zens - The Treaties' "truckhouse" clause, the only reference to trade in the Treaties, provided that Indians would "not traffick, barter or exchange any commod­ities in any manner but with such persons or the man­agers of such truckhouses" - The court stated that this clause was a restriction on trade and did not impliedly grant an unre­stricted right to trade in fish - Once truck­houses disappeared, it merely meant that the restriction no longer applied and Indians could trade in the same man­ner as all other citizens - The Treaties clearly did not grant preferential trade rights - See paragraphs 1 to 82.

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - General - Interpretation - The Nova Scotia Court of Appeal stated that "treaties are to be given a just, broad and liberal interpretation. ... the goal is to deduce the common intention of the parties by interpreting the treaties in their historical context. ... While treaties must be interpreted in their historical context, extrinsic evidence cannot be used as an aid to interpretation, in the absence of an ambiguity." - See paragraphs 19 to 22.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - The Nova Scotia Court of Appeal discussed the issue of "whether a defen­dant who has the opportunity to argue two separate defences to a charge can abandon one of them at trial, with the result that the trial judge does not rule on its effect, and then later raise that defence at the appeal" - An accused treaty Indian raised two treaties in defence at trial, but abandoned his defence based on one of the treaties - On appeal, the accused revived his defence based on the other treaty - The court held that "it is not open for the appellant [accused] to change direction at this point" - See paragraphs 83 to 89.

Cases Noticed:

R. v. Pamajewon (H.) et al., [1996] 2 S.C.R. 821; 199 N.R. 321; 92 O.A.C. 241, refd to. [para. 14].

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. 15].

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280, refd to. [para. 19].

R. v. Horseman, [1990] 1 S.C.R. 901; 108 N.R. 1; 108 A.R. 1, refd to. [para. 55].

R. v. Bombay (M.) et al., [1993] 1 C.N.L.R. 92; 61 O.A.C. 312 (C.A.), refd to. [para. 56].

R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 279, refd to. [para. 57].

R. v. Taylor and Williams (1981), 62 C.C.C.(2d) 227 (Ont. C.A.), refd to. [para. 58].

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. 60].

R. v. Vidulich (1989), 37 B.C.L.R.(2d) 391 (C.A.), refd to. [para. 88].

Saanichton Marina Ltd. v. Claxton (1987), 43 D.L.R.(4th) 418 (B.C.S.C.), refd to. [para. 91].

R. v. White and Bob (1964), 50 D.L.R.(2d) 613 (B.C.C.A.), affd. (1965), 52 D.L.R.(2d) 481 (S.C.C.), refd to. [para. 91].

R. v. Syliboy, [1929] 1 D.L.R. 307 (N.S. Co. Ct.), refd to. [para. 95].

Statutes Noticed:

Constitution Act, 1982, sect. 35(1) [para. 18].

Criminal Code, R.S.C. 1985, c. C-46, sect. 830(1) [para. 9].

Treaties of 1760-61, generally [Appendix].

Authors and Works Noticed:

Murdoch, Beamish, History of Nova Scotia, generally [para. 95].

Spencer-Bower, G., and Turner, A.K., The Doctrine of Res Judicata (2nd Ed. 1969), p. 148 [para. 97]; paras. 9 [para. 92]; 213 et seq. [para. 96].

Counsel:

Bruce H. Wildsmith, Q.C., and Eric A. Zscheile, for the appellant;

Michael A. Paré and Ian MacRae, for the respondent.

This appeal was heard on February 10-11, 1997, before Roscoe, Bateman and Flinn, JJ.A., of the Nova Scotia Court of Appeal.

On March 26, 1997, Roscoe and Bateman, JJ.A., jointly delivered the following judg­ment for the Court of Appeal.