R. v. McDonald

R. v. McDonald

Fisheries officers who applied and enforced the Fisheries Act as it existed were acting in the lawful execution of their duties; evidence to establish an Aboriginal or Treaty right is not relevant to defences to obstruction, assault or uttering threats because colour of right does not encompass a mistake of law and strict liability offences (s.62) do not permit mistake of law as a defence.

Citation
2004 NSPC 55
Parties
Crown: Her Majesty the Queen; Defendant: Alexander Peter McDonald; Defendant: Leon Russell Robinson; Defendant: Genevieve Rose Marie Johnson; Defendant: Holly Lynn McDonald; Defendant: Andrew Stephen Robinson
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
28 October 2004
Procedural Posture
Criminal / Preliminary Application During Trial (state Funded Counsel Application; Voir Dire on Admissibility)
Outcome
Preliminary application dismissed; fisheries officers found to be acting lawfully; evidence of Aboriginal or Treaty rights excluded as a defence to remaining charges of obstruction, assault and uttering threats
Legal Topics
Aboriginal and Treaty Rights, Lawful Execution of Duty, Obstruction, Assault, Uttering Threats, Colour of Right, Fisheries Act Inspections, Strict Liability
Source Language
English
Fisheries Law Aboriginal Law Criminal Law Constitutional Law Aboriginal and Treaty Rights Lawful Execution of Duty Obstruction Assault +4 more

Case Brief

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Parties

Her Majesty the Queen

Crown

Alexander Peter McDonald

Defendant

Leon Russell Robinson

Defendant

Genevieve Rose Marie Johnson

Defendant

Holly Lynn McDonald

Defendant

Andrew Stephen Robinson

Defendant

Procedural Posture

Criminal / Preliminary Application During Trial (state Funded Counsel Application; Voir Dire on Admissibility)

Legal Issues

  1. 1 Whether fisheries officers were acting in the lawful execution of their duties when enforcing the Fisheries Act after R. v. Marshall decisions and in absence of amended regulations
  2. 2 Whether evidence of an Aboriginal or Treaty right is relevant to defences to obstruction, assault and uttering threats of a fishery or peace officer
  3. 3 Whether an honest belief in an Aboriginal or Treaty right can constitute colour of right or mistake of law/fact for strict liability and criminal defences

Ratio Decidendi

Fisheries officers who applied and enforced the Fisheries Act as it existed were acting in the lawful execution of their duties; evidence to establish an Aboriginal or Treaty right is not relevant to defences to obstruction, assault or uttering threats because colour of right does not encompass a mistake of law and strict liability offences (s.62) do not permit mistake of law as a defence.

Court Disposition

Preliminary application dismissed; fisheries officers found to be acting lawfully; evidence of Aboriginal or Treaty rights excluded as a defence to remaining charges of obstruction, assault and uttering threats

Orders

  • Stay entered on illegal fishing charges (charges under fisheries regulations stayed)
  • Evidence to prove Aboriginal or Treaty rights excluded for the remaining charges of assault, uttering threats and obstruction