R v. Bartibogue

In Aboriginal Rights/Defences, Fish Cases on (Updated )

This case involved and a number of aboriginal fishermen from New Brunswick who were charged with obstructing a fisheries officer and a number of other offences related to attempting to enforce their Marshall type claim to treaty rights to fish for lobster. At the Provincial Court level a successful pre-trial application was brought in the case of R. v. Dedam [2001] N.B.J. No. 186 (N.B. Prov. Ct.) (McCarroll Prov. Ct. J.) for state funded counsel. In making and order for a stay pending the appointment of state funded counsel, the Provincial Court noted that although a custodial sentence was not likely, a conviction could interfere with the accused’s ability to earn his livelihood. In addition, the outcome of the case “will affect hundreds of native fishers who strongly and fervently believe in their right to fish lobster.”

After making an agreement that the evidence and the order in the case of R. v. Dedam would apply to a number of similar accused including Mr. Bartibogue, a Crown appeal of all the cases was consolidated into one summary conviction appeal.

Upon appeal, the order was reversed and the stay set aside. In doing so, the court applied the test set out in R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.). In applying that test, the court held that the applicant had failed prove the case was complex because no evidence was led to show it was an aboriginal or treaty rights case involving issues above and beyond the right of the Gov’t to regulate as allowed by R. v. Nikal [1996] 1 S.C.R. 1013.