This case involved charges against 17 members of the Cheam Indian Band for fishing within their traditional territory on the Fraser River during a time that the fishery had been closed by D.F.O. Since the Crown admitted a prima facie case of infringement, this decision focused primarily on whether or not that infringement could be justified. In upholding the infringement …
Full SummaryR v. Q.M.P. Fisheries Ltd. et al, 2001 BCPC 210
This case involved charges of buying and selling salmon caught under the authority of a food fishing licence. This judgment was a ruling on a voice dire concerning the admissibility of documents seized under the authority of two search warrants issued under s. 487 of the Criminal Code. The court reviewed the affidavits filed in support of the affidavits and …
Full SummaryR v. George, 2002 BCPC 207
This case involved a charge against a First Nations defendant of offering to sell fish that was not caught under the authority of a fishing licence. At the commencement of the trial, the defence made an application for a judicial stay on the grounds that, “[t]hese delays have caused our clients, one of whom is an elder, considerable expense both …
Full SummaryR v. Peter Paul, 2002 NSPC 25
This case involved illegal fishing charges against two First Nations defendants who wished to assert a defence based upon a Marshal type treaty right. Upon reviewing all of the facts, the court distinguished R. v. MacDonald [2001] N.S.J. No. 368 (N.S.C.A.) (digested herein) and granted state funded assistance on the basis of the test set out in R. v. Rowbotham …
Full SummaryR v. Simon, [2002] N.B.J. No. 248
This case is the first post Marshall decision (digested herein) involving aboriginal fishing for lobster by members of the Burnt Church First Nation in Miramichi Bay. After the release of the Marshall decision, the accused was charged with illegal fishing for lobster in Miramichi Bay. After a trial upon an agreed state of facts, the court ruled as follows: 1) …
Full SummaryR v. Haines et al., Prov. Ct. File No. 22340/22576C
This case involved charges against of what is commonly called dual fishing. That is, fishing at the same time under the authority of both a commercial halibut licence and an aboriginal food fishing licence. Up until 1999, commercial by-catch of fish in excess of that allowed, could be relinquished to the Crown without penalty. At the same time, commercial aboriginal …
Full SummaryR v. Elijah Douglas Shanoss, 2002 BCPC 316
This case involved an aboriginal defence to a charge of selling salmon caught without a fishing licence. At the time the offence took place, the accused was a member of the Gixsan First Nation that had signed an Interim Fisheries Measures Agreement and a subsequent allocation agreement that, amongst other things provided that during the 1995 fishing season, the GWWA …
Full SummaryR v. Tommy, Nelson and Douglas, 2002 BCPC 39
This case arose out of charges of drift-net fishing without a licence in the Fraser River by members of both the Cheam Indian Band the Kwantlen Band. At trial the Crown conceded a Prima Facie infringement of an aboriginal right to fish. With respect to the issue the infringement, the court applied the Sparrow test and concluded that the restriction …
Full SummaryR v. Houle, 2003 ABPC 107
This case involved five aboriginal defendants charged with catching and retaining northern pike of a prohibited length while involved in a sport fishing derby. Amongst other things, a defence was raised based upon a right to fish pursuant to Treaty No. 6 of 1876. Upon review the evidence, the court rejected this defence because the defendants fishing activities were not …
Full SummaryR v. Francis, 2003 NSPC 20
This case involved charges against an aboriginal defendant from the Acadia First Nations for illegal fishing during a closed time for lobster near Savory Park in Digby County, Nova Scotia. At trial defences were raised based upon treaty rights, aboriginal rights and due diligence. With respect to treaty rights, since the defendant was not able to show that the Treaty …
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