Canadian Legal Decisions Archive

Regina v. N.T.C. Smokehouse Ltd., 1996

The appellant, a food processor, was charged under s. 61(1) of the Fisheries Act with selling and purchasing fish not caught under the authority of a commercial fishing licence, contrary to s. 4(5) of the British Columbia Fishery (General) Regulations, and with selling and purchasing fish caught under the authority of an Indian food fish licence, contrary to s. 27(5) of the Regulations. The fish had been caught by Indian bands under authority of food fishing licences, sold to the appellant and resold by the appellant in the commercial market. Section 27(5) of the Regulations at the time prohibited the sale or barter of any fish caught under the authority of an Indian food fish licence and s. 4(5) prohibited anyone from purchasing such fish. The appellant was convicted and its appeal to the Court of Appeal was dismissed. The constitutional questions stated by this Court queried whether ss. 4(5) and 27(5) of the Regulations were of no force or effect with respect to the appellant by operation of s. 52 of the Constitution Act, 1982, by reason of the aboriginal rights within the meaning of s. 35 of that Act.

Regina v. Adams, 1996

Appellant, a Mohawk, was charged with fishing without a licence on Lake St.Francis, Quebec, contrary to s.4(1) of the Quebec Fishery Regulations. A licence was unavailable under those regulations. A special licence issued under ministerial permit authorizing native persons to fish for food may have been available under s. 5(9) but appellant did not apply for such permission. The appellant was convicted at trial and this conviction was upheld on appeal to the Quebec Superior Court and on further appeal to the Quebec Court of Appeal.The constitutional question before this Court queried whether s.4(1) of the Quebec Fishery Regulations was of no force or effect with respect to the appellant in virtue of s.52 of the Constitution Act, 1982 by reason of his aboriginal rights under s. 35 of the Constitution Act, 1982. The fundamental issue was whether aboriginal rights are inherently based in claims to land, or whether claims to land are simply one manifestation of a broader-based conception of aboriginal rights.

Regina v. Cote, 1996

The appellants, all Algonquins, were members of an expedition to teach traditional fishing methods. All were convicted under Quebec's Regulation respecting controlled zones with entering a controlled harvest zone (Z.E.C.) without paying the required fee for motor vehicle access. This zone was located within the appellants' traditional hunting and fishing grounds. The appellant Côté was also convicted under s. 4(1) of the Quebec Fishery Regulations of fishing within the zone without a valid licence. The Superior Court and the Court of Appeal upheld the convictions. The appellants jointly challenged their convictions on the basis that they were exercising an aboriginal right and a concurrent treaty right to fish on their ancestral lands as recognized and protected by s.35(1) of the Constitution Act, 1982. The Attorney General cross-appealed the Court of Appeal's holding that the appellants enjoyed a treaty right to fish under a treaty concluded at Swegatchy in 1769.

Regina v. Gladstone, 1996

The accused were charged under s.61(1) of the Fisheries Act with attempting to sell herring spawn on kelp caught without the proper licence contrary to s.20(3) of the Pacific Herring Fishery Regulations. They had shipped a large quantity to the Vancouver area and approached a fish dealer with a sample to see if he was "interested". One of the accused, on arrest, produced an Indian food fish licence permitting him to harvest 500 pounds. The Supreme Court of British Columbia and the Court of Appeal upheld the convictions. The constitutional question before this Court questioned whether s.20(3) of the Pacific Herring Fishery Regulations was of no force or effect in the circumstances, in virtue of s.52 of the Constitution Act, 1982, by reason of the aboriginal rights within the meaning of s.35(1) of the Constitution Act, 1982. Also raised was the sufficiency of their actions to constitute an attempt to sell in law.

Appellant was charged in 1984 under the Fisheries Act with fishing with a drift net longer than that permitted by the terms of his Band's Indian food fishing licence. He admitted that the facts alleged constitute the offence, but defended the charge on the basis that he was exercising an existing aboriginal right to fish and that the net length restriction contained in the Band's licence was invalid in that it was inconsistent with s.35(1) of the Constitution Act, 1982.