R. v. Trotchie (A.A.), (2002) 225 Sask.R. 187 (PC)

• Judge: Kaiser, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: October 18, 2002
• Jurisdiction: Saskatchewan
• Citations: (2002), 225 Sask.R. 187 (PC);2002 SKPC 99

R. v. Trotchie (A.A.) (2002), 225 Sask.R. 187 (PC)

MLB headnote and full text

Temp. Cite: [2002] Sask.R. TBEd. OC.066

Her Majesty The Queen v. Arnold A. Trotchie and Cheri L. Trotchie

(5662377; 5662376; 2002 SKPC 99)

Indexed As: R. v. Trotchie (A.A.)

Saskatchewan Provincial Court

Kaiser, P.C.J.

October 18, 2002.

Summary:

Two accused were charged with angling without a licence, contrary to s. 11(1) of the Fisheries Act (Sask.) Regulations. The male accused defended on the basis that he was an Indian and accordingly had a treaty right to fish. The female accused defended on the basis that she was married to the male accused and accordingly enjoyed the same status that he enjoyed.

The Saskatchewan Provincial Court found both accused guilty.

Fish and Game - Topic 809

Indian, Inuit and Métis rights - General principles - Treaty rights - Proof of - Two accused were charged with angling without a licence - In their defence, they relied on a treaty right to fish - The Saskatchewan Provincial Court held that a person who could establish a sufficient and substantial connection to a tribal group that was a signatory to a treaty enjoyed the benefits of that treaty regardless of whether they were or could be registered under the Indian Act - The court opined that more than mere ancestry was involved; the person also had to demonstrate a real relationship to a presently recognized aboriginal community that exercised treaty rights - Rights of the kind contemplated herein were communal in nature (granted to and enjoyed by a community) - The person had to show that they were a member of or a part of that community both by blood and in fact - See paragraphs 19 to 22.

Fish and Game - Topic 809

Indian, Inuit and Métis rights - General principles - Treaty rights - Proof of - Two accused (a married couple) were charged with angling without a licence - In their defence, they alleged a treaty right to fish derived from the husband's Indian ancestry - The Saskatchewan Provincial Court rejected the defence - While an ancestral chart prepared by the wife from internet sources was impressive, the court had no way of knowing who contributed the information to the website, or how reliable the contributed information was - The material was simply unsourced hearsay - The original source documentation, which was available for a fee, had not been accessed - See paragraphs 26 to 29 - Further, the wife could not acquire hunting and fishing rights by reason of having married the husband because they had married after 1985 - After 1985, marriage no longer changed anyone's status under the Indian Act - See paragraph 34.

Fish and Game - Topic 824

Indian, Inuit and Métis rights - Definitions - Indian defined - [See first Fish and Game - Topic 809 ].

Indians, Inuit and Métis - Topic 2

General - Indian defined - [See first Fish and Game - Topic 809 ].

Indians, Inuit and Métis - Topic 808

Personal or legal rights - General - Non-Indian spouses - [See second Fish and Game - Topic 809 ].

Indians, Inuit and Métis - Topic 4406

Treaties and proclamations - General - When applicable - [See first Fish and Game - Topic 809 ].

Indians, Inuit and Métis - Topic 4412

Treaties and proclamations - General - Evidence - [See both Fish and Game - Topic 809 ].

Cases Noticed:

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 14].

R. v. Pritchard (1972), 9 C.C.C.(2d) 488; 32 D.L.R.(3d) 617 (Dist. Ct.), not folld. [para. 16].

R. v. Fowler (J.) (1993), 134 N.B.R.(2d) 361; 342 A.P.R. 361 (Prov. Ct.), folld. [para. 21].

R. v. Harquail (L.) (1993), 144 N.B.R.(2d) 146; 368 A.P.R. 146 (Prov. Ct.), folld. [para. 21].

R. v. Chiasson (O.) (2001), 239 N.B.R.(2d) 1; 619 A.P.R. 1 (Prov. Ct.), folld. [para. 21].

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. 21].

R. v. Bartleman (1984), 55 B.C.L.R. 78; 9 C.C.C.(2d) 488 (C.A.), refd to. [para. 21].

Counsel:

K. Scott Bartlett and P. Mitch McAdam, for the Crown;

The accused persons represented themselves.

This case was heard by Kaiser, P.C.J., of the Saskatchewan Provincial Court, who delivered the following decision on October 18, 2002.