R v. Francis

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

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 of 1752 was applicable to the Acadia First Nation, this defence was rejected (para. 14). With respect to aboriginal right, the court applied the test set out in R. v. Van Der Peet, [1996] 2 SCR 507 and several other cases. In applying that test, the court found no evidence that lobster fishing was a continuation of an existing past practice at the time of European encounter.

With respect to the due diligence defence, the defendant led evidence that he was caught in the middle of a dispute between D.F.O. and the Mi’kmaq Fish and Wildlife Commission as to who had jurisdiction to licence this fishery. He initially set his traps with a valid licence from the Mi’kmaq Fish and Wildlife Commission. Upon hearing that the Commission no longer had jurisdiction to licence the fishery, he waited two days before removing his traps from the water because of the need to accompany his pregnant wife to the hospital in Yarmouth. After returning from the hospital he pulled his traps and kept some lobster for his birthday breakfast. Under these circumstances the court held that he acted with due diligence and acquitted him of a charge of having on board lobster traps without proper tags. However, since he did not return the lobsters to the water, the court convicted him of a charge of fishing without a valid licence.