R. v. Nichols Date:, 2015 BCPC 372

Citation: R. v. Nichols Date: 20151203 2015 BCPC 0372 File No: 15965-1 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KRISTOPHER LAWRENCE NICHOLS RULING ON APPLICATION OF THE HONOURABLE JUDGE S.M. MERRICK Counsel for the Crown: M. Ball Counsel for the Defendant: D. Rosenberg, Q.C. Place of Hearing: Sechelt , B.C. Date of Hearing: December 3, 2015 Date of Judgment: December 3, 2015

[1] THE COURT: Kristopher Lawrence Nichols is charged with two counts of fishing not under the authority of a licence issuedunder the Pacific Fishery Regulations, 1993, the Fishery (General) Regulations or the Aboriginal Communal Fishing LicencesRegulations, and two counts of unlawfully possessing prawns caught in contravention of the Fisheries Act or Regulations as a result offishing activities that occurred in May 2012 and October 2012. [2] Mr.

Nichols has given notice to the Crown that he is asserting that he had a right to fish pursuant to the permit issued to him inaccordance with s. 35 of the Constitution Act, 1982. Counsel agreed that prior to determining the s. 35 right, I must be satisfied that thecharges against Mr. Nichols could be proven beyond a reasonable doubt. Pursuant to the reasons that I gave January 21st, 2015, I foundthat the charges had been proven beyond a reasonable doubt, subject to the s. 35 determination. [3] Submissions were made today on the issue as to whether there ought to be a Vukelich hearing.

Crown counsel submits thatsuch a hearing should be held prior to the case proceeding further. Defence counsel opposes that and says that a Vukelich hearing is notnecessary. [4] Counsel, in their able submissions, have referred me to a number of decisions, including the decision of my colleague, JudgeFrame, in R. v. Anderson and Jenkins, given on March 26, 2014, cited as R. v. Anderson and Jenkins, 2014 BCPC 44 , 2014BCPC 0044. [5] After considering the Anderson and Jenkins case, it is my

interpretation that in that case Judge Frame, similar to what I havebeen asked to do today, was determining whether or not a Vukelich hearing was necessary.

After considering her reasons, I havedetermined that Judge Frame in that decision considered that a Vukelich hearing was not necessary. [6] To be as clear on the issue as I can, based on Judge Frame's decision and my consideration of the other cases as I have heard ittoday, I am of the view that a Vukelich hearing is not to be conducted in a s. 24(1) Charter application and that Vukelich hearings arerestricted to s. 24(2) Charter applications. [7] It is my decision with respect to Mr. Nichols that a Vukelich hearing will not be held, as Vukelich hearings ought not to be heldin s. 24(1) applications.

The reason for that, in my view, is as -- and I agree with Judge Frame in her decision, that s. 8 of theConstitutional Question Act applies only to s. 24(1) of the Charter and not s. 24(2) of the Charter. [8] It is my decision, after considering what Judge Frame has said and the other authorities provided to me, that Vukelich hearingsare restricted to s. 24(2) applications.

The reason for that is that the Constitutional Question Act applies to s. 24(1) applications and thats. 8 of the Constitutional Question Act is what is to guide the court in determining applications where a s. 24(1) remedy is sought. [9] So the issue for Mr. Nichols, and in my view for all those who seek a 24(1) remedy, is whether there has been compliance withthe Constitutional Question Act, that is, the notice. And that is in accordance with s. 8(4) of the Constitutional Question Act, R.S.B.C.1996, c. 68. [10] So the issue in the Nichols matter is this: is the notice appropriate?

For the reasons that I am about to give, I am not satisfiedthe notice is sufficient, and I am going to make an order that Mr. Nichols must amend the notice. The notice must be amended or thecase cannot proceed, because there has not been compliance with the Constitutional Question Act. [11] The notice in this case was headed as it should be, the notice says, in the Provincial Court of British Columbia, it lists a courtfile number, it notes Her Majesty the Queen, or in this case Regina, and Kristopher Lawrence Nichols, notice to the Attorney General ofCanada, notice to the Attorney General of British Columbia.

It notes, in the matter of R. v. Kristopher Lawrence Nichols, Informationsworn May 22nd, 2013, at Sechelt, British Columbia, in which Kristopher Nichols is charged with four counts as follows. It then liststhe counts. I am going to read into the record the rest of the notice. I am satisfied that compliance with s. 8(4)(

a) has been met. I am also satisfiedthat s. 8(4)(

b) has been met because the notice says (as read in): Whereas Kristopher Lawrence Nichols claims that he was exercising an aboriginal right to fish and to possess fish at all material timesrelated to the above counts; And whereas Kristopher Lawrence Nichols claims that at all material times related to these proceedings, he was exercising an existingaboriginal right of the aboriginal peoples of Canada in accordance with s. 35(1) of the Constitution Act, 1982; The notice then goes on: Kristopher Lawrence Nichols will challenge the constitutional validity or constitutional applicability of s. 26(1) of the Pacific FisheryRegulations, 1993 and s. 33 of the Fisheries Act, and will argue that this legislation is inapplicable to him in this case to the extent thatthis legislation restricts, impairs or impedes the recognition and affirmation of the rights that were being exercised by KristopherLawrence Nichols under s. 35 of the Constitutional Act, 1982, and to the extent that the Pacific Fisheries Regulations, 1993, and s. 33 ofthe Fisheries Act purport to interfere, restrict, impair or impede in any way the aboriginal rights of Kristopher Lawrence Nichols or theaboriginal group to which Kristopher Lawrence Nichols is a member, then that legislation is inapplicable as it constitutes an unjustifiableinfringement of the aboriginal rights that were being exercised in this case.

It goes on: Notice is hereby given that Kristopher Lawrence Nichols will argue in these proceedings in the Provincial Court of British Columbia that

to the extent of such inapplicability as described above, s. 26(1) of the Pacific Fisheries Regulations and s. 33 of the Fisheries Act are of no force or effect by virtue of s. 52 of the Constitution Act, 1982 -- And it gives the time and place of where the notice of the hearing shall be, and it is dated so there has also been compliance with s. 8(4) (c). [ 12 ] So in my view, those paragraphs are sufficient to state the law in question and the right and freedom alleged to have been infringed or denied. [ 13 ] However it is my judgment that there has not been compliance with s. 8(4) (d).

I am ruling that an amended notice must be filed at a date to be ordered after discussion with counsel. I am ordering that the notice must have a specific heading that says "Facts to be relied on" and list in subparagraph (

a) through to whatever letter of the alphabet, what the actual facts are to be relied on, so that the court can look at it and say, "Okay, the defence is saying that on such-and-such a date, this is the activity that occurred; these are the facts that we are relying on in support of the application," so that when I review it, I can understand what the facts are for the point to be argued. [ 14 ] Then that will also ensure the Crown has some understanding via the notice what the case is about. So it has to have a heading that says "Facts to be relied on", (

a) through whatever. It then must have a heading that is entitled "The points to be argued". It then has to, again, in subparagraph (

a) and following, advance what the point to be argued is, in a simple format. I am not suggesting that it is to be a written argument, and I am ruling to give guidance that I don't expect the defence to provide a written argument under the points to be argued. It should simply be in point form that the point to be argued is -- and counsel will be more eloquent than I can be -- that essentially because of facts whatever, Mr.

Nichols had a right to fish and that whatever the law was that restricted that is of no force and effect because of whatever the right is that he is alleging. [ 15 ] Then, if the Crown feels that there is particularization needed, that can be explored in a simple hearing that should not take any more than about half an hour. Because this is not about the defence providing a written argument.

It is providing sufficient notice so that the court understands what the case is about and so that the Crown has at least a basic understanding of the case it has to meet. [ 16 ] I am not satisfied that the notice meets that and, accordingly, we cannot proceed further until the notice has been amended. [ 17 ] But it is ultimately my view that -- and I do not think it will occur in this case -- that if an accused person ultimately does not provide sufficient notice, in the view of the trial judge, then the law is, as I am interpreting it, that the application cannot proceed. [ 18 ] So, Mr.

Rosenberg, given that this is December and we are in the holiday season and there are only a couple of weeks left in which I expect counsel to be working hard, can an amended notice be filed by the end of January? Is there anything unclear about what I am suggesting? [ 19 ] MR. ROSENBERG: No, no. No, I think -- I think in the terms that Your Honour has ordered it, an amended notice could be filed by the end of January. I will do so, subject, of course, to whether the Crown is going to appeal your decision or not.

If an appeal is filed, then we might look at it otherwise, but other than that, I would file the notice -- amended notice by the end of January. [ 20 ] THE COURT: Okay. I think you have to file it by the end of January, and if the Crown appeals it, they appeal it, and I will be guided by whatever -- if in fact that happens, and then I think what I will do is direct that there be a date set in February or March to review the notice. [ 21 ] If it turns out no further review is necessary, counsel can let the Registry know and the date can be cancelled, and then we should set hearing dates. [ 22 ] MR.

ROSENBERG: Why don't we do that after the notice is filed, because perhaps my friend and I will have discussions. [ 23 ] MS. BALL: Your Honour, if Your Honour had noticed the letters that I have already sent to Mr. Rosenberg -- [ 24 ] THE COURT: Yes, I did notice those. [ 25 ] MS. BALL: -- we have had much discussion and, provided that this notice addresses all of those factors, there -- there may be no further discussion.

If they don't, I will certainly simply write back to my friend and indicate where I think things should be further clarified, so that we can carry on and know what the case is about. [ 26 ] So I am sure we can sort all that out amongst ourselves since we have had a bit of a head start, and, yes, we can, certainly before we leave today, at least fix a date certain that can be changed in the future if we need more time with notices or whatnot. [ 27 ] The next date, I gather, should be probably an interim trial conference to determine how many days we would need to be setting, sort of thing, where we're going, how many witnesses, that sort of thing, for the defence. [ 28 ] Is that what we're anticipating? [ 29 ] MR.

ROSENBERG: Your Honour, my friend is getting ahead of herself. I'm interested in catching a 4:30 ferry. I will, as Your Honour said, file the amended notice by the end of January and will endeavour to get a date in February or March, and at that time I suggest we continue discussions. [ 30 ] THE COURT: Okay, and I think that's a good idea that you both try and make the 4:30 ferry. [ 31 ] MS. BALL: Thank you. [ 32 ] THE COURT: And just for greater clarity, the end of January is January 29th, 2016, 3:00 p.m.

[ 33 ] MR. ROSENBERG: Sorry, January 29th? [ 34 ] MS. BALL: So can we be adjourned then to deal with the coordinator tomorrow, the JCM tomorrow, for a date? [ 35 ] THE COURT: Definitely, because the coordinator is right here. [ 36 ] MS. BALL: Oh, I see. [ 37 ] THE COURT: And she has to remain in here because we have other matters so -- [ 38 ] MS. BALL: So we could call tomorrow to -- [ 39 ] THE COURT: Yes, please do. [ 40 ] MS. BALL: -- coordinate that new date? [ 41 ] THE COURT: I will adjourn this to tomorrow. [ 42 ] MS. BALL: Thank you. [ 43 ] MR. ROSENBERG: Thank you, Your Honour. [ 44 ] THE COURT: Okay. Thank you, counsel. I appreciate it. [PROCEEDINGS CONCLUDED]