IN THE PROVINCIAL COURT OF NOVA SCOTIA
Cite as: R. v. Francis, 2007 NSPC 28
Date: April 3rd, 2007
Docket: 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
Registry: Digby, Nova Scotia
Between:
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, Leon Russell Robinson
Defendants/Applicants
______________________________________________________
APPLICATION FOR STATE FUNDED COUNSEL
______________________________________________________________________________
Judge: The Honourable Judge Jean-Louis Batiot, J.P.C.
Heard: October 17th and 18th, 2006 and January 30th, 2007
Written decision: April 3rd, 2007 “as amended”
Charges: Contrary to ss. 7 & 8 ACFR, ss 14(1)(b) 57(1)(a), 57(1)(b) & 57(2) AFR and s. 62 FA
Counsel: Elizabeth Buckle, for the Crown
All Applicants, self-represented
1. The procedure for these applications was explained to all Applicants at the inception of these hearings on October 17th. They each made their own application. They had abandoned an earlier Application for State Funded Counsel to make this Application.
2. All Applicants are Aboriginal, members of the Indian Brook Reserve, near Truro, or the Acadia Band, near Yarmouth, in this Province. They face various fishery offences alleged to have occurred in St. Mary’s Bay, Digby County, mostly arising in the summer of 2005 but as early as 2003 (Peter Allan Paul), contrary to
a. s. 7, catch retain and transport more than twenty lobsters per trap per day; or fish with a lobster trap without a valid trap tag attached to that lobster trap; or fishing more than one lobster trap;
b. s. 8, fishing for lobster when not designated to do so under the authority of a communal licence. Both are pursuant to the Aboriginal Fishing Licenses Regulations, SOR 93/332;
c. s. 14 (1)(b) of Atlantic Fisheries Regulations, 1985 SOR 86-21, fishing for lobster without being authorized;
d. s. 57(1)(a), AFR, supra, fishing for lobster during a closed time;
e. s. 57(1)(b), AFR, supra, illegal possession of lobsters.
f. Messrs Nevin and Paul are also charged with obstruction of a Fishery Officer in the execution of his duties (s. 62 of Fisheries Act, R.S.C. 1985, c. F-14).
3. Crown counsel has filed briefs and summaries. She has also met with the Applicants to explain the procedure. She has waived procedural requirements, such as filing of notices or affidavits or other documents; however the law ultimately must be applied.
4. Crown counsel concedes, or represents, that
a. all Applicants are Aboriginal;
b. the charges themselves are not complex;
c. however, the proposed defense is;
d. none of the Applicants have the ability to present such a complex defense;
e. none have the financial means to do so and none have qualified for Legal Aid;
f. there is no risk of jail should they be found guilty.
5. All Applicants argue, some more explicitly than others, that they need State Funded Trial Counsel to present such a crucial defense. The absence of counsel would infringe their right to a fair trial, contrary to ss. 7 and 11 of the Canadian Charter of Rights and Freedoms, 1982, given the applicable jurisprudence and the complexity of the trial and the evidence, all beyond their capabilities to understand fully, and to present effectively.
6. They are all poor and do not have the necessary means to retain counsel. They have exhausted their efforts to obtain Legal Aid or financial help from their respective Band Council. They cannot otherwise retain counsel because of the sheer expense to conduct such a defense.
7. After including a short exposé of the applicable jurisprudence, I will address the issues of the relevance of the proposed defense to the obstruction charges, the Applicants’ evidence, the air of reality test, and whether the Applicants have exhausted all possibilities to obtain private counsel.
8. For the reasons explained herein, I conclude:
a. The proposed defense is not relevant to the obstruction charges (s. 62);
b. The evidence adduced by the Applicants from Indian Brook is insufficient to establish an air of reality to the proposed defense;
c. Those Applicants from Acadia Band have met such a threshold, have made reasonable efforts to obtain alternative funding, unsuccessfully, and are entitled to a stay of proceedings pending the appointment of counsel at State expense.
JURISPRUDENCE
9. Others have already resumed the applicable jurisprudence (see R. v. Paul, 2002 NSPC 025). I am indebted to Crown counsel for her very helpful pre-hearing brief.
10. The applicants must demonstrate that, without legal representation, it is more likely than not that their rights “not to be deprived of ... life liberty and security of the person ... may be impaired (s. 7 of the Charter), or that their trial will be unfair (s. 11 of the Charter): R v. Lalo (1998), 173 N.S.R. (2d) 149 (S.C.); R. v. Chan, [2000] A.J. No.891 (C.A.); R. v. Collins (1987), 33 C.C.C. (3d) 1 (S.C.C.); R. v. Keating, [1997] N.S.J. No. 250 (N.S.C.A.).
11. There is no unqualified right to state funded counsel: R. v. Keating, supra; R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.); New Brunswick (Minister of Health and Community Services) v. G.(.J.), [1999] 3 S.C.R. 46.
12. The Applicants seek a stay of proceedings until counsel is funded by the State. This is rarely granted, as it interferes with governments priorities in allocating resources (R v. Prosper, [1994] 3 S.C.R. 236); albeit the issue there was whether there ought to be a state funded counsel for all suspects, not merely for one trial). New Brunswick (Minister of Health and Community Services) v. G.(.J.), supra, recognizes that the necessity of a fair hearing will trump this government discretion.
13. The concept of “fairness”, applies to both prosecution and the defense (R. v. Harrer (1995), 101 C.C.C. (3d) 193 (S.C.C.); R. v. Corbett (1988), 41 C.C.C. (3d) 385 (S.C.C.). It does not include the concept of a guarantee to the best outcome (R.v. Lyons, [1987] 2 S.C.R. 309), but requires that the presence of counsel be essential: R. v. Rain (1998), 130 C.C.C. (3d) 167 (Alta. C.A.)) leave to appeal to S.C.C. refused [1998] S.C.C. A No. 609; R. v. Taylor (1996), 150 N.S.R. (2d) 97 (S.C.)’ aff”d (1996) 154 N.S.R. (2d) 378 (C.A.); leave of appeal to S.C.C. refused [1997] S.C.C.A. No. 112.
14. This latter element – that the presence of counsel be essential – will be judged in light of the abilities of the applicant to represent himself or herself, such as level of literacy, or communication skills, education and experience: R. v. Bailey (L.E.) (2001) N.S.R. (2d) 190 (C.A.). R. v. Taylor, R. v. Rain, R. v. Lalo, supra.
15. In assessing these factors, a court will consider several factors, such as the trial judge`s duty to assist, the length of the case, its serious and complex nature, as opposed to simply the consequences to the Defendant (i.e., a possibility of imprisonment).
ISSUES
16. The basic issues are whether the presence of counsel is required for the Applicants to receive a fair trial and whether the Applicants have done everything possible to retain such counsel short of making the Application (Keating, supra).
17. Crown counsel argues succinctly:
a. Such defense is not relevant to the charges of obstruction;
b. There is no air of reality of such defense, particularly in the case of the members of Indian Brook;
c. Since these are communal rights, the community ought to support the Applicants/Defendants; the evidence does not demonstrate sufficient efforts to do so.
S. 62 OBSTRUCTION CHARGES, RELEVANCE OF PROPOSED DEFENSE
18. In the prosecution of strict liability offences (as in these cases), proof of the actus reus is not difficult or complex; nor is the usual defense, ordinarily; except that of a Treaty or Aboriginal right, a complex procedure, in its preparation and at trial, because of the evidence that must, or can, be gathered, disclosed and presented by either side, to prove such a right, its breach, or the justification for such breach. Crucial therefore is whether such defense is relevant at all, or has an air of reality: R. v. Bartibogue, [2002] N.B.J. No. 946 (Q.B.); R. v. Whynot (1983), 9 C.C.C. (3d) 449 (N.S.C.A); R. v. Osolin (1993), 86 C.C.C. (3d) 481 (S.C.C.)).
19. The Crown must prove beyond a reasonable doubt whether the Defendant has hindered a fishery officer in the lawful execution of his duty, on the date, and at the place in question. The Defendant may establish due diligence, or mistake of fact. These are questions of fact, some within the Defendant`s knowledge. Depending on the number of witnesses, such trials do not usually require much time, and are not complex. There may be questions of admissibility of evidence (for instance, video evidence, confession, etc...), or Charter issues. The pretrial instructions of the trial judge, and possible directions to the Defendant during the trial are usually sufficient to deal with all trial issues. These are questions of facts, very focused by the allegations contained in the Informations. The Defendant is entitled to full disclosure of the Crown`s evidence; he or she need not make any.
20. It has already been held that an Aboriginal or Treaty right is irrelevant to the defense of such a case: R. v. Paul, supra; R.v. McDonald, (2001), 197 N.S.R. (2d) 318 (C.A.). Indeed in R. v. Nikal, [1996] 1 S.C.R. 1013, at paras. 90 to 96, the Supreme Court of Canada emphasizes the right and power of the federal government to issue a license that
“may be the least intrusive way of establishing the existence of the aboriginal right for the aboriginal person as well as preventing those who are not aboriginals form exercising aboriginal rights.” (para. 95).
Its agents must thus be able to inspect such a license. The exercise of the duty to inspect may not be preempted by the very right which may have justified the issuance of a license in the first place.
21. There is no evidence before me to distinguish these cases. Evidence of an Aboriginal or Treaty right is thus irrelevant and inadmissible in such trial.
22. Therefore, I can conclude that the two applicants who face such obstruction charges have not made out a case of anticipated breach of ss. 7 or 11 of the Charter, since there is no evidence that they could not represent themselves on these strict liability offences.
THE APPLICANTS
A/INDIAN BROOK
Peter Allan Paul
23. Peter Allan Paul describes himself as a poor man without possession, savings, pension, life insurance. He just has debts. He lives off the land in a teepee by St. Mary’s Bay. He is an Aboriginal (a native) and requires legal counsel to defend himself against these charges (two sets), to raise the native issues. He needs counsel’s guidance as he has not been educated as a lawyer. He is aware of the charges and asked that they be stayed until “all issues are resolved and that his Treaty right to fish is recognized”.
24. Although he does not specifically say so he does mention that the limited fishing that he does helps him to trade as well on the French shore and thus I can infer that he raises the issue of earning a modest livelihood as found in R. v. Marshall, [1999] S.C.R. 533. Indeed I would infer that he has read that decision as he advocates more dialogue between Aboriginals and the federal government to resolve the outstanding issues.
25. He emphasizes his rights under his Treaty to fish for food and ceremonial purposes.
26. He has upgraded his grade six education over the years, with a GED, a vocational training (cabinet maker), fisheries training including class four fisherman license and Captain’s certificate for both fishing and tour boating; yet cannot get any employment.
27. He had a serious car accident in 1995 that left him with some physical issues. He has attended residential schools in the past, where he was told he was “incapable of living in this world”. He can read, (with glasses) and has had some court experience, always with a lawyer. He has undergone five or six trials or hearings, at least two being complete trials. He has read briefs but did not understand them completely. He is aware of the two sets of charges against him. His application to legal aid – and his appeal from that decision – have been denied in June of 2006. He has no income.
28. He is a Mi’kmaq, a first nation person. He can travel freely between the United States and Canada. He has relatives at Indian Brook First Nation and in Boston. He considers Chief McDonald, of Indian Brook, as his Chief when there. His sole possession seems to be a 19 foot Cape Island style boat with an outboard engine, seized by DFO. He can still fish with a borrowed boat. Should he have to sell his boat the proceeds should go to his people rather than to a lawyer; yet would offer the proceeds to a lawyer if required.
29. He has no ability to borrow money given his lack of income, assets and his debts. The band is not in a financial position to pay for legal fees although he may make a request to a new council in November after the elections, as the present council has not met, but once, in the last 18 months.
30. There may be some money from residential school settlements but he has been waiting for fifteen years and none has appeared yet. He believes he has a right to fish for lobster on St. Mary’s Bay, that the Treaty has given him that right but he’s not aware of any expert evidence that may or may not support his contention.
Leon Russell Robinson
31. Leon Russell Robinson has no exhibits but for a statement of his outstanding fines in the amount of $2,360.00 and E.I. benefits of $383.00 bi-weekly income, apparently from the 2nd of July 2006 to the 30th of September 2006. He would like to have legal representations. He has no view as to his defenses. He can read. He had very little experience at trial except through plea bargaining in the past. He has no estimate of cost. He only has one dependant, his wife, who is not employed; he did not approach Council.
32. He was born in Truro and has attended school at Shubenacadie to grade 10. He has received a GED and has upgraded his education as a truck driver, security guard courses and has not finished his Captain’s papers. He was involved in a food fishery ``thing``. He was sitting around until his family sent him down to get some lobsters to send home.
Stephen Peter-Paul
33. Stephen Peter-Paul needs a lawyer in order to present a rights based defense since it was more than his rights; it is for all natives. It is imperative that “we have representation”. It “is a right we have through the blood line”. He cited the 1752 Treaty and it was not only his right but that of all Mi’kmaqs. It has to be established and protected in this trial. He needs a lawyer to do so. It is a right that belongs to him and his people whether they live on the Bay or not, or just reside there temporarily. His people have been present in this province and other provinces for a very long time.
34. He has been on social assistance as far as he can remember. He has a grade nine education and GED. He now has a substantial education as it is the only thing that he can do and get some money while living on reserve.
35. The costs of staging such a defense are very high. He mentions that lawyers “went broke” in the past and that the last bill was over a million dollars. He refers to the logging case and fishing cases as well.
36. The boat from which he was fishing belongs to his son, age fourteen, and he paid four hundred dollars for it. He has no vehicle, no assets, pays a mortgage through the band office as he lives on the reserve.
37. He has gone to different band leaders for help, all for naught. We want food, he says. He has not made a request to council at Indian Brook or to the Union of Nova Scotia Indians. The scale of justice must be “weighed” and the fight must continue.
38. His wife receives a bi-weekly cheque of $389.62.
Leander Phillip Paul
39. Leander Phillip Paul was born in Boston and came to Nova Scotia at the age of one and a half or two. He has lived in Shubenacadie or Cape Breton or Cambridge. He has gotten up to grade ten and has upgraded his education with courses as a heavy equipment operator, security guard or bus driver. He has problems with reading – he cannot really – and can only remember the last sentence of whatever he has read. He has been diagnosed with dyslexia and was in a special classroom.
40. He has fished, worked in the woods, has obtained equipment through loans while doing so but was stopped with the last decision, a logging case. He cannot read documents, cannot go into case law, he doesn’t understand this case and he believes that he needs representation. He does not have much court experience and, if so, it is through plea bargaining. He is on social assistance since apparently the 27th of March 1995 and was denied legal aid. He claims an individual right to go fishing all over Nova Scotia, an Aboriginal or Treaty right. Lawyers will decide. He has some two thousand dollars in outstanding fines.
Derek William Nevin
41. Mr. Nevin was born in Boston, came to Canada at about one year of age, has grade ten education and a GED. He is married, is on welfare, has no assets, and supports four boys. He fishes for his family, a family that is very important to him. He has no money; if he had, he would not make this application, nor would he stay on the reserve with all its attendant social problems. If he had a law degree he would defend himself.
42. He does not know whether it is an Aboriginal right or a Treaty right. He is a registered Indian who needs to fish for food for his family. He doesn’t want to be in court.
43. These proceedings are particularly difficult for him since his brother, close to him, a co-accused, was murdered a few months ago. He has anxiety attacks now, which he never had before. He is not trying to use this as some kind of an advantage but that issue and that of illegal fishing seem to be related.
44. He has been in court in the past, once or twice. He hopes the issue will be resolved before someone else gets hurt.
45. He can read, has no learning disability, but does not understand how to go about establishing a Treaty defense and a lawyer could tell him, to establish a right to fish.
Marcel Marr
46. Marcel Marr requires a state funded trial counsel as he is incapable of paying. He needs assistance to establish a Treaty right and an Aboriginal right to fish.
47. He was born in Truro, resides at Indian Brook, has a grade ten education and obtained some college and further upgrades for employment, including, “stuff for captain”. He has been a native logger, a cashier, a landscaper, has worked in construction in the city, self-employed and a handy man.
48. He was a fisherman in 1999, 2000, not a commercial fisher, but would like to be one someday. He claims a right to gather food and a communal right to fish. He doesn’t know how to present his case or argue it.
49. He was on social assistance last year and last worked in February 2005. He does some work for his brother; it is not clear how he is paid for that work.
50. He lives with his sister who rents a home at Indian Brook; he pays expenses of about five hundred and fifty dollars a month from the social assistance of $622.88 cents a month he receives. He has no ability to borrow from anyone including family and friends.
Jerome Patrick Paul
51. Jerome Patrick Paul is on welfare. He states that he has been wrongfully accused and that there is no evidence against him particularly as there was no communal fishing licenses in force at the time of the charge. He believes that Indian Brook is a member of the band. He has children and a wife as dependants. He has a fishing master class IV 2003, and a grade ten education.
52. He went to see a lawyer to obtain legal advice and representation. It would have cost a twenty five hundred dollar retainer just to discuss the matter and a five thousand dollar fee for the trial itself. He asserts a right to fish by way of a Treaty. “That’s how I got on the water. I was fishing under my Treaty rights, an inherent right to begin with, an aboriginal right at birth”, even if St. Mary’s Bay is three hundred miles from Indian Brook and they have not come there for years. He believes it was a right that existed prior to 1760. He knows this from oral history. He’s not aware what experts may say on these matters.
B/ ACADIA BAND
Peter Louis Francis
53. Peter Louis Francis described the various monthly payments he has to make for a boat, for a car, or on a consolidation loan ($174.80, $433, $313) as well as purchasing necessities of life for his three children.
54. He understands the charges. He can read, he has grade nine education and a GED which he obtained seven years ago since he did not want his son to think he was “dumb”. He has his captain’s papers which he found not difficult to obtain and he has had various employment.
55. He has attempted to borrow money to obtain a lawyer or to retain a lawyer from institutions, and from family or friends, who are worse off than he is, without success.
56. He asserts a right to fish and gather, an inherent right that goes with the treaties that his people have signed with the white settlers. Before the settlers came, the L’NU people were one big family, and lived on Turtle Island (Nova Scotia now). The white settlers have subdivided this Mi’kmaq nation. He believes that the treaties guaranteed him the right to continue to fish and gather.
57. He needs the help of a lawyer to deal with the Whites’ system to protect his interest and that of his three children to whom he teaches his parents’ ways as they were taught to him, and before that to them.
58. He finds it ironic that he is a ward of the federal government – supposed to protect him and yet charges him and leaves him to his own devices. He has lived on reserves since the age of 13, but was born in Boston.
59. He was advised by the band council that they did not have any money, a yearly notice since last year, for this sort of purpose; yet he is attempting to defend a communal right which would be of benefit to all Mi’kmaqs, and not just to him or his immediate band members. He will go back again to request such funding.
60. In 2005 his income was $10,325.00 from E.I. and $15,939.11 from Kespuwick Resources Inc., when he is usually involved in fishing during the winter. His debts appear to be a loan for his vehicle with an amount owing on it of $6,623.21 on September 21st, 2006. Another one for $21,000.00 to HSBC Retail Services and a third one for $13,000.00 to Canada Trust a consolidation loan with payments of $313.00 per month. His expenses, above those mentioned above, are for a cell phone, his only phone, (which he requires for work during the winter as he fishes), food, child care, children’s special activities, clothing, shelter, medical and dental, the usual expenses.
61. He emphasizes that his right to fish and gather is race-based, stemming from his belonging to the Mi’kmaq race, different from any other races in Canada, and the only source of that right.
Marilyn Francis
62. Marilyn Francis, the mother of Peter Louis, has presented the most thorough application.
63. She lives in her daughter’s home at Acadia Band, and had come from Boston to seek a better life in Nova Scotia. She brought her children with her. She spoke of the importance of these rights, attached to her status as a full-blooded Indian; indeed she had made sure her children’s father was also a full blooded Indian. She sees her rights to fish as ancestral rights owing from her race status, for both herself, her children and her grandchildren, at least for those who are fully Aboriginal (keep the blood line strong).
64. Mrs. Francis claims an inherent right to fish. When fishing and successful, she shares her bounties with her community, as she was brought up to do, to help others, especially elders. This is the Mi’kmaq way. Indeed only those Mi’kmaqs who are of strong blood line may claim Indian rights; and one ought to be leery of those who may make a claim to such a right without the necessary blood lineage. Such rights should not be affected adversely by agreements, or be extinguished by other band members. She makes this claim to fight for herself, for her rights and those of all Mi’kmaqs.
65. She alludes to difficulties as to how non-natives fish on Band boats yet she gets charged for illegal fishing; how the Band government is not there to help her; indeed ignores her request for financial help to protect her Mi’kmaq heritage.
66. She contests these charge forcefully. She has been involved in asserting her rights in the past.
67. She has requested representation from Legal Aid, which was denied; from her band and from the Union of Nova Scotia Indians, more particularly Douglas Brown, their Solicitor who advised that there was no funding for such purpose.
68. Ms. Francis was awarded a “Massachusetts High School Equivalency Certificate” on July 30th, 1992. (She was born September 1st, 1955). She has obtained several different certifications since then, such as Aboriginal Film and Television Production Training Program, Certificate of Participation in Introduction to Addictions and Certificate of Achievement re: Entrepreneurialship Skills for Aboriginal Craftswomen.
69. In 2005 she had an income of $3,744.00 from the Acadia Band Council and $11,700.00 from the Associations for Survivors of Shubenacadie Residential School where she worked as a counsellor helper. She was entitled to $72.32 in excess CPP contribution and employment insurance overpayment. She had no taxable income. She also received some social assistance, $185.42 bi-weekly for food, clothing, personal allowance, transportation allowance and shelter. There is no assets to speak of. Her daughter’s house was hers before, and it really belongs to the Acadia Band.
70. She has presented a transcript of the 1752 Peace and Friendship Treaty, and refers particularly to para. 4
“It is agreed that the said tribe of Indians shall not be hindered from, but have free liberty of hunting and fishing “as usual”.”
ANALYSIS
A/ INDIAN BROOK
71. All claim an Aboriginal or Treaty right to fish. Is the evidence sufficient to give these allegations an air of reality?
72. Given the location of the waters on which they were charged, St. Mary’s Bay, in the County of Digby, Nova Scotia and the respective locations of their Band, Indian Brook, near Truro, some three hundred kilometres away, and Acadia Band in Yarmouth, close to St. Mary’s Bay, certainly it is a central issue.
73. Messrs Paul and Peter-Paul, have presented, or referred to a copy of the 1752 Peace and Friendship Treaty.
74. Without addressing the questions such Treaty may have raised in earlier court proceedings, on its face, it was entered into by His Excellency Peregrine Thomas Hobson Esq., Captain General and Governor in Chief in and over His Majesty’s Province of Nova Scotia and Accadie, and Major Jean Baptiste Cope, Chief Sachem of the Tribe of Mick Mack Indians Inhabiting the Eastern Coast of the said Province. Para. 4 refers to a Truck House at River Chibenaccadie and that “the said Tribe of Indians shall not be hindered from, but have free liberty of hunting and fishing as usual”.
75. The Supreme Court of Canada, in R. v. Sparrow, [1990] 1 S.C.R. 1075 at page 1111 states:
We wish to emphasize the importance of context and a case by case approach to section 35(1) [of the Constitution Act] given the generality of the text of the constitutional provision, and especially in light of the complexities of aboriginal history, society and rights, the contours of a justificatory standard must be defined in the specific factual context of each case.
76. In R. v. Van der Peet, [1996] 2 S.C.R. 507, at para. 69 the Court states:
Courts considering a claim to the existence of an aboriginal right must focus specifically on the practices, customs and traditions of the particular aboriginal group claiming the right... the existence of an aboriginal right will depend entirely on the practices, customs and traditions of the particular aboriginal community claiming the right. As has already been suggested, aboriginal rights are constitutional rights, but that does not negate the central fact that the interests aboriginal rights are intended to protect relate to the specific history of the group claiming the right. Aboriginal rights are not general and universal; their scope and content must be determined on a case-by-case basis. The fact that one group of aboriginal people has an aboriginal right to do a particular thing will not be, without something more, sufficient to demonstrate that another aboriginal community has the same aboriginal right. The existence of the right will be specific to each aboriginal community.
77. Further at para. 25 of R. v. Sundown, (1999) 132 C.C.C. (3d) 353 (S.C.C.), Cory J., says
“Treaty rights, like Aboriginal rights, are specific and may be exercised exclusively by the first nation that signed the treaty. The interpretation of each treaty must take into account the first nation signatory and the circumstances that surrounded the signing of the treaty.”
78. There is no evidence advanced by the Applicants from Indian Brook, near Shubenacadie, to link their status as Aboriginals living in Indian Brook, to their claim to fish for lobsters in St. Mary’s Bay. They do hold a belief, even passionately, in their Aboriginal or Treaty rights to do so. That does not equate to evidence for such claim.
79. Unfortunately, the only evidence with respect to fishing (or lack thereof) in these waters is that of Dr. Wickens, an expert, who testified for the Defendants in an earlier fisheries case involving Indian Brook. He stated that prior to 1760 (an important date to ascertain the existence of past Aboriginal practices incorporated into treaties), there was no evidence of fishing in St Mary’s Bay.
80. I may not take judicial notice, having heard that case, of all the various evidence presented there on that issue. It is only a hearsay statement in this Application. Such a statement does not amount to a fact. Indeed a fact established in another case may not, without more, be conclusive in any other case, as each must be decided on the evidence properly admitted at trial: R. v. Marshall [Julien], 2002 NSSC 57, reversed 2003 NSCA 105, appeal allowed 2005 SCC 43. There are no generally accepted facts of history, as stated in Macaulay, Aboriginal & Treaty Rights Practice, 2000 Carswell.
81. The Applicants’ belief appears genuine. It may have been re-enforced by the offer of a license under the Aboriginal Communal Fishing Regulations, supra, which their Band Council refused. It seems these fishers may be caught between the respective posturing of their Band Council and the Federal Government. Nethertheless, such belief, however passionately held or expressed, does not amount to sufficient evidence of an Aboriginal link to fish for lobsters in St. Mary’s Bay.
82. I must, on the evidence presented, dismiss their application.
B/ ACADIA BAND
83. Mrs. Francis and her son Peter Louis Francis, of Acadia Band, in the western part of the Province, are in a different position, given the proximity of Yarmouth to the waters of St. Mary’s Bay, where they were apprehended.
84. They refer – more particularly Mrs. Francis – to the 1752 Treaty which, on the evidence, does not help their position since it applies to the Tribe of the eastern part of the Province, and there are other Treaties of Peace and Friendship. However, they both claim their “inherent right“ to fish, arising from their Aboriginal status, i.e., an Aboriginal right. Indeed Mrs. Francis’ emphasis was the importance of that right attached to her blood line.
85. They both contest, by their plea of not guilty, the allegations made against them, of having contravened the means the fish and the catch limitations imposed under the Aboriginal Communal Fisheries Regulations, supra. In light of these arguments, given the location of the Band, its proximity to the waters in question, her status, her evidence of the importance to fish for herself, and for members of her community, particularly the elders, with whom she shares her bounty, the availability of the resources, the traditional ways of Aboriginals to use their resources in proximity of their settlement, Mrs. Francis, and her son have presented sufficient evidence to give an air of reality to their claim.
86. 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.
87. In Delgamuuk v. British Columbia, [1997] 3 S.C.R. 1010, Lamer C.J., discussing the principles to apply in determining the question of Aboriginal title to land (as opposed, here, to a right to fish), spoke of applying both the common law and an Aboriginal perspective to the evidence of possession pre-sovereignty, its exclusivity, and continuity. He recognized it may not be possible to prove all three elements; yet the absence of exclusivity may still give rise to an Aboriginal right (as opposed to a title). The important point is that the court must appreciate the Aboriginal perspective of oral history, and what Aboriginals may view as central and significant of the society’s distinctive culture (at paras 150 to 159, referring to Van der Peet, supra).
88. Even though each Applicant presents their own case and make their own claim, they both acknowledge that such a claim is made on behalf of the community. There is nothing in law preventing one member from making such a claim, as demonstrated in different cases, including R. v. Marshall, supra.
89. Both Mrs. Francis and Mr. Francis have testified that they are different from other people in Canada in that they have always known through family law that their people, the Mi’kmaq inhabited Turtle Island, i.e. “present Nova Scotia” and even though they lived or travelled between Maine and Nova Scotia she has always known that she had the right to fish because of her status as an Indian and had a duty to share her catch with her community, particularly the elders. She knew that these rights stayed with the blood line and she made sure that her children would be entitled to that right by having a Mi’kmaq father. She claims, as Mr. Francis does, to be L’NU and to fish in her community’s traditional fishing grounds, a triable issue: R. v. Marshall, supra, at para 17 and 19.
90. Her evidence is sufficient to establish an air of reality to her claim, obviously one which will have to be proven at trial.
91. Even though Mr. Francis also fishes commercially in the winter, his claim of an Aboriginal right to fish for food, social and ceremonial purposes and the extent of such a right, is indistinguishable from that of his mother, both members of the same Band. It is also different from his ability to fish commercially in whatever capacity such license may give him, and which is not before this court.
ALTERNATIVE FUNDING
92. Has she made sufficient attempts to obtain funding. It is certainly admitted or considered by the Crown that she cannot nor can Mr. Francis afford such a defense. It is noteworthy the efforts Mrs. Francis has made to obtain funding for her defense.
93. She has presented several exhibits in support of her evidence, clearly showing her concerns, of long standing, with respect to her Aboriginal rights to fish (in her words inherent rights). She has expressed them for some time publicly, for instance at a fishery meeting on July 13th, 1998. Her quest for financial support to fight to have such rights recognized and preserved dates back to July 2000, at least in writing.
94. I accept her evidence that, in spite of an earlier resolution (May 7th, 2004), the Board of Directors of the Union of Nova Scotia Indians could no longer support the cost of defending such matters at trial.
95. She attempted on March 5th, 2006, through Douglas Brown, staff counsel at the Union of Nova Scotia Indians to obtain such representations or funding for such representations, to no avail.
96. She has made an application to Legal Aid and went through its appeal process, to receive the necessary legal representation. It was rejected on April 19th, 2006.
97. Throughout her evidence, Mrs. Francis has taken a very strong stand on the importance that such “inherent rights” belonging to “full blooded Indians”, ought not to be bartered away even by her Band Council. It appears that in making such a case, even her Band Council may not respond to her request. She is left on her own. And the same results apply to her son, although I note he is not as active in making such representations. Yet, it is difficult to distinguish one case from the other on that issue.
98. When recognized, such rights are communal in nature and not personal or individual: see R. v. Sparrow, [1990] 1 S.C.R. 1075 at 1112, where the Defendant was an individual as in most cases; also R. v. Marshall, supra. It was thus reasonable for Ms. Francis to ask for a contribution, or help, from her Band Council. Her evidence is that it is not available, for various reasons, or she is was met with silence.
99. Even though she was born in Boston she has established a residency within the Acadia Band. That is recognized by being named as a person authorized to fish under a communal license. She is entitled to an expectation that she can partake in the exercise of such communal rights as they may, from time to time, be parcelled out by Band Council.
100. She is charged in a quasi criminal proceeding. It is unlike being a plaintiff in a civil proceeding claiming damages for an alleged breach of a Treaty, as in Pawis v. R. (sub nom. McGregor v. R.) (1979), [1980] 2 F.C. 18, 102 D.L.R. (3d) 602 (F.C.) where it was held that the Ojibwa plaintiffs did not have status to sue on the alleged breach of a Treaty made with the Ojibwa people collectively and that a proper party to sue would likely be the Chiefs on behalf of all the members.
CONCLUSION
101. Both Applicants have made out a case that they require a State Funded Trial Counsel to make full answer and defense. Those are important matters to them, with serious consequences. They have met the tests imposed on them by our jurisprudence: they qualify for such help and have done all they could do, save suing their Band Council or Chief, likely not a viable option, to obtain the resources that they cannot provide privately.
102. They are entitled to that rare remedy, a stay of proceedings (R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.), at p. 50) pending the appointment of counsel. Since their charges are similar, yet separate from each other, and their defense is a common one, likely the same counsel can be provided to both of them as there are no apparent conflicts, and a joint trial would save on duplication of expenditures and time requirements.
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Jean-Louis Batiot, J.P.C.
March 23rd, 2007
Annapolis Royal, Nova Scotia