R. v. Francis

R. v. Francis

The defendant failed to prove a treaty or aboriginal right to fish lobsters in St. Mary’s Bay because he did not establish community-specific, historically continuous, integral practice required by Van Der Peet; the Crown proved the actus reus of the offences; given the strict liability nature of the offences the defendant established due diligence with respect to untagged traps (s.62(1)) because of an unsettled licensing regime and his reasonable conduct, but he was guilty of fishing without authorization (s.14(1)(b)) for retaining lobsters in the holding cage.

Citation
2003 NSPC 20
Parties
Crown: HER MAJESTY THE QUEEN; Defendant: PETER L. FRANCIS
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
25 April 2003
Procedural Posture
Criminal / Decision
Outcome
Convicted on charge contrary to s.14(1)(b) of the Atlantic Fishery Regulations; acquitted of charge contrary to s.62(1) of the Atlantic Fishery Regulations
Legal Topics
Treaty Rights, Aboriginal Right to Fish, Due Diligence, Strict Liability Offences, Section 35 Analysis, Atlantic Fishery Regulations
Source Language
English
Fisheries Law Aboriginal Law Criminal Law Constitutional Law Treaty Rights Aboriginal Right to Fish Due Diligence Strict Liability Offences +2 more

Case Brief

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Parties

HER MAJESTY THE QUEEN

Crown

PETER L. FRANCIS

Defendant

Procedural Posture

Criminal / Decision

Legal Issues

  1. 1 Whether defendant possessed a treaty or aboriginal right to fish lobsters in St. Mary’s Bay in summer
  2. 2 Whether the defendant established due diligence defence to strict liability offences under the Atlantic Fishery Regulations
  3. 3 Whether the Treaty of 1752 or other local treaties applied to the defendant and his community

Ratio Decidendi

The defendant failed to prove a treaty or aboriginal right to fish lobsters in St. Mary’s Bay because he did not establish community-specific, historically continuous, integral practice required by Van Der Peet; the Crown proved the actus reus of the offences; given the strict liability nature of the offences the defendant established due diligence with respect to untagged traps (s.62(1)) because of an unsettled licensing regime and his reasonable conduct, but he was guilty of fishing without authorization (s.14(1)(b)) for retaining lobsters in the holding cage.

Court Disposition

Convicted on charge contrary to s.14(1)(b) of the Atlantic Fishery Regulations; acquitted of charge contrary to s.62(1) of the Atlantic Fishery Regulations

Orders

  • Declared guilty of the offence contrary to section 14(1)(b) of the Atlantic Fishery Regulations (fishing for lobsters without authorization)
  • Declared not guilty of the offence contrary to section 62(1) of the Atlantic Fishery Regulations (untagged traps) and matters reserved for sentencing with surrounding facts to be considered