R. v. Francis

R. v. Francis

Applicants from Acadia Band (Marilyn Francis and Peter Louis Francis) presented sufficient evidence of proximity, community practices and attempts to obtain funding to give their Aboriginal/Treaty defence an air of reality and to show they exhausted alternatives; fairness required state-funded counsel and a stay pending appointment. Applicants from Indian Brook failed to demonstrate sufficient evidentiary link to fish the waters in question and thus failed the air of reality threshold; Aboriginal defences are irrelevant to obstruction charges, so state-funded counsel was not required for those charges.

Citation
2007 NSPC 28
Parties
Crown: Her Majesty The Queen; Applicant/defendant: Marilyn Francis; Applicant/defendant: Peter Louis Francis; Applicant/defendant: Marcel Marr; Applicant/defendant: Derrick William Nevin; Applicant/defendant: Jerome Patrick Paul; Applicant/defendant: Peter Allan Paul; Applicant/defendant: Leander Phillip Paul; Applicant/defendant: Stephen Peter Paul; Applicant/defendant: Leon Russell Robinson
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
3 April 2007
Procedural Posture
Criminal Regulatory/fisheries Offences / Pre Trial Application for State Funded Counsel Decision
Outcome
Partial grant and partial denial: state-funded counsel and stay ordered for Acadia applicants (Marilyn Francis and Peter Louis Francis); applications denied for Indian Brook applicants and for obstruction charges where Aboriginal defence irrelevant.
Legal Topics
State Funded Counsel, Aboriginal/treaty Fishing Rights, Charter Ss.7 and 11, Obstruction of a Fishery Officer S.62 Fisheries Act, Air of Reality Test, Stay of Proceedings
Source Language
English
Criminal Law Aboriginal Law Constitutional Law Administrative Law (funding) State Funded Counsel Aboriginal/treaty Fishing Rights Charter Ss.7 and 11 Obstruction of a Fishery Officer S.62 Fisheries Act +2 more

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Parties

Her Majesty The Queen

Crown

Marilyn Francis

Applicant/defendant

Peter Louis Francis

Applicant/defendant

Marcel Marr

Applicant/defendant

Derrick William Nevin

Applicant/defendant

Jerome Patrick Paul

Applicant/defendant

Peter Allan Paul

Applicant/defendant

Leander Phillip Paul

Applicant/defendant

Stephen Peter Paul

Applicant/defendant

Leon Russell Robinson

Applicant/defendant

Procedural Posture

Criminal Regulatory/fisheries Offences / Pre Trial Application for State Funded Counsel Decision

Legal Issues

  1. 1 Whether state-funded trial counsel is required to ensure a fair trial under ss.7 and 11 of the Charter
  2. 2 Whether proposed Aboriginal/Treaty defence is relevant to obstruction charges (s.62)
  3. 3 Whether the applicants have established an air of reality to their Aboriginal/Treaty defence

Ratio Decidendi

Applicants from Acadia Band (Marilyn Francis and Peter Louis Francis) presented sufficient evidence of proximity, community practices and attempts to obtain funding to give their Aboriginal/Treaty defence an air of reality and to show they exhausted alternatives; fairness required state-funded counsel and a stay pending appointment. Applicants from Indian Brook failed to demonstrate sufficient evidentiary link to fish the waters in question and thus failed the air of reality threshold; Aboriginal defences are irrelevant to obstruction charges, so state-funded counsel was not required for those charges.

Court Disposition

Partial grant and partial denial: state-funded counsel and stay ordered for Acadia applicants (Marilyn Francis and Peter Louis Francis); applications denied for Indian Brook applicants and for obstruction charges where Aboriginal defence irrelevant.

Orders

  • Stay of proceedings entered for Marilyn Francis pending appointment of state-funded trial counsel
  • Stay of proceedings entered for Peter Louis Francis pending appointment of state-funded trial counsel