R v. Joe

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

This case involved an aboriginal fisherman charged with fishing during a closed time. At issue during the trial was the requirement for notice of a regulation to all persons likely to be affected by it as required by section 11(2)(b) of the Statutory Instruments Act.

At trial, the trial judge found that the communal licence issued by the fisherman’s Band pursuant to the Aboriginal Communal Fishing Regulations was a statutory instrument for the following reason:

This particular communal licence is much more than a simple permit to do something subject to when, where and how regulations. This particular document is a complete document, which not only says who can do what, it also contains in great detail how, were and when certain individuals can fish for fish or shell fish.

Since the licence was a statutory instrument, the trial judge felt bound by s. 11(2) of the Statutory Instruments Act, which prevented a conviction under the instrument unless it is proved that the Crown took reasonable steps to bring the purport of the regulation to the notice of the persons likely to be affected by it.

Upon Appeal to the Supreme Court of B.C., the court relied upon R. v. Furtney, [1991] 3 S.C.R. 89 to hold that individual licences (such as communal licences fishing licences and bingo licences) issued pursuant regulations are not statutory instruments for which notice is required. Accordingly, the acquitted was set aside and the matter was remitted back to the trial court for sentencing.