Regina v. Lindstrom

2000 BCSC 631 Citation: Regina v. Lindstrom 2000 BCSC 631 Date: 20000413 Docket No.: 21104 Registry: Port Alberni IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: REGINA APPELLANT/RESPONDENT AND: LEONARD CALVIN LINDSTROM RESPONDENT/PETITIONER REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE VICKERS Counsel for the Appellant/Respondent: Finn Jensen Counsel for the Respondent/Petitioner: Hugh M.G. Braker Date and Place of Trial: April 7, 2000 Chilliwack, BC [1] This is an appeal from the decision of the Honourable Judge Klaver, a judge of the Provincial Court of British Columbia, made on July 8, 1999 at Port Alberni, British Columbia. The Facts [2] The respondent/petitioner is a status Indian and a member of the Tseshaht Band of Indians. On October 20, 1997 he was charged with two offences, as follows: COUNT 1 LEONARD CALVIN LINDSTROM, on or about the 3rd day of September, A.D. 1997, at or near the City of Port Alberni, Province of British Columbia, while carrying on fishing under the authority of a licence did contravene a condition of the licence to wit: fishing during a close time, contrary to Section 7 of the Aboriginal Communal Fishing Licences Regulations passed pursuant to the Fisheries Act, R.S.C., 1985, c. F-14 and amending Acts, and did thereby commit an offence under Section 78 of the Fisheries Act. COUNT 2 LEONARD CALVIN LINDSTROM, on or about the 3rd day of September, A.D. 1997, at or near the City of Port Alberni, Province of British Columbia, did unlawfully fish while not having a licence, contrary to Section 26(1) of the Pacific Fishery Regulations and did thereby commit an offence under Section 78 of the Fisheries Act, R.S.C. 1985, c. F-14 and amending Acts. [3] It is to be noted that Count 1 alleges fishing with a licence and contravening a condition of the licence and Count 2 alleges fishing with a licence. Both counts arise out of a single incident. [4] At the commencement of his trial the respondent moved to have the charges stayed and the information quashed on the grounds that the charges were contradictory and prevented him from making full answer and defence. Counsel on his behalf said that the Information was nullity and should be quashed. He also argued that the trial judge had no jurisdiction to amend the Information. [5] The trial judge concluded that the counts were contradictory and could not stand on the same Information. He provided the Crown with the opportunity to select which of the two charges it wished to proceed upon. The Crown elected to proceed on Count 1 and with that election the court ordered a stay of proceedings on Count 2. [6] The Crown appeals from that decision and the accused, Lindstrom, cross appeals by way of petition. [7] I have concluded that the two counts in the Information are contradictory. For the reasons given by the trial judge and for the reasons filed concurrently in Malloway v. Regina, (13 April 2000), Chilliwack Registry, X39543 (B.C.S.C.) the appeal and cross appeal are dismissed. "D.H. Vickers, J." The Honourable Mr. Justice D.H. Vickers