R. v. Adolph and Joseph Date:, 2017 BCPC 124

Citation: R. v. Adolph and Joseph Date: 20170206 2017 BCPC 124 File No: 100217-1 Registry: Lillooet IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DONOVAN STERLING ADOLPH and CURTIS BRANDON REID JOSEPH REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Mr. Anthony Varesi Appearing on their own behalf: Mr. Donovan Adolph and Mr. Curtis Joseph Place of Hearing: Lillooet , B.C. Date of Hearing: October 12, 2016 Date of Judgment: February 6, 2017

[ 1 ] On July 20, 2014, Conservation Officer Steve Beckett came across a bucolic scene that has played itself out for hundreds of years.

He observed three native gentlemen fishing from the Fraser River. [ 2 ] While this tradition has played itself out, as I say, over hundreds of years, there are fishing regulations imposed by the Fisheries Act , and specific fishery regulations and communal licences governing this activity today. [ 3 ] In this case, there is a communal licence issued for members of the Xaxli’p First Nation permitting the fishing of Chinook salmon by means of angling with rod and reel and deep nets only between July 1, 2014 and July 29, 2014.

That communal licence is issued under the Aboriginal Communal Fishing Licences Regulations and describes the area in which Chinook may be fished. A condition of that licence is compliance with the Fisheries Act and Regulations . [ 4 ] The Fisheries Act and Regulations prohibits the fishing of other salmon, specifically Sockeye, in this same period. [ 5 ] Conservation Officer Beckett was conducting vehicle patrols along the Fraser River in uniform on July 20, 2014. He observed a red jeep at the tracks near a popular fishing area. This is an area where fishers park to go down to the rocks.

He continued his patrol in order to gain a better vantage site of the fishers. [ 6 ] Approximately 10:20 a.m., Conservation Officer Beckett arrived at a spot across from the fishing site he was intending to investigate. He could see, from this vantage point, that same red jeep and some people fishing just upstream. There were three males whom he could see in his spotting scope and binoculars. Two of those gentlemen were ultimately identified as the accused, Donovan Adolph and Curtis Joseph. [ 7 ] The third male, ultimately identified as Bryan Wally Kersch, was dip netting.

While this was a legal method of fishing in that timeframe, it was not legal to retain any Sockeye he caught. [ 8 ] Conservation Officer Beckett observed Mr. Kersch harvesting Sockeye in his dip net. The fish he caught was passed to Mr. Adolph who then killed them. Each time a fish was caught the process was repeated. Mr. Joseph was present but Conservation Officer Beckett did not observe Mr. Joseph engaging in the fishing activities. Nor did he see Mr.

Joseph in possession of any fish while he was observing the scene. [ 9 ] When Conservation Officer Beckett observed that the fishers appeared to be ready to leave the rocks and return to their vehicle, he also left his observation point. He contacted the local tribal police to come in for assistance. They went together to the location of the jeep. [ 10 ] There was a voir dire conducted with respect to statements made and evidence obtained. I included all of the evidence from the voir dire into the trial except for admissions made by Mr. Joseph and a pack full of fish presented by Mr. Adolph.

I reserved on the admissibility of this evidence because the two accused are self-represented and, while they were able to speak eloquently about their heritage and fishing rights, they were not schooled in the law or able to make such arguments as may be advanced. I rule first on the admissibility of this evidence. Voir Dire Ruling [ 11 ] When Conservation Officer Beckett approached the scene, Mr. Joseph was sitting in his jeep. The jeep had an open top. Conservation Officer Beckett was able to observe a bag in the back left corner of the jeep that appeared to have fish in it. He identified himself to Mr.

Joseph and asked him if he had been fishing. Mr. Joseph agreed that he had been fishing. Conservation Officer Beckett asked him if he had Sockeye and he admitted he had 13 of them. Conservation Officer Beckett told Mr. Joseph that the season was closed for Sockeye and read him the official warning. [ 12 ] While the statement given by Mr. Joseph was entirely incriminating, he was compelled to provide these responses to Conservation Officer Beckett’s inquiries pursuant to the Fisheries Act .

Such an admission would not otherwise be admissible on this trial given that it was sought, not in the course of an investigation of a possible offence, but for the purposes of eliciting a confession after any reasonable point that Conservation Officer Beckett should have determined that he was going to charge the three gentlemen with these offences. [ 13 ] The officer in circumstances such as this ought to have first advised Mr. Joseph that he was under investigation, given him the official warnings and then questioned him regarding his culpability.

Such rights ought to be afforded anyone whose inherited rights are in jeopardy and can only be put in jeopardy by such a confession. For reasons I will address in due course, though, I am not excluding this evidence. [ 14 ] Conservation Officer Beckett also asked Mr. Joseph where the other two gentlemen were. Mr. Joseph said they were still coming up the trail. Conservation Officer Beckett proceeded to the trail head where he saw the two gentlemen who appeared to be hiding.

They stood and came toward Conservation Officer Beckett but were not carrying their backpacks. [ 15 ] Conservation Officer Beckett directed Mr. Adolph to obtain his backpack. He refused to do so and became aggressive with the conservation officer. [ 16 ] I am not aware of any provision of the Fisheries Act that permits a conservation officer to compel suspects to retrieve physical evidence that would incriminate themselves in the course of an investigation. They did comply, however, because Conservation Officer Beckett threatened Mr.

Adolph with prosecution for obstruction of justice if he did not comply. [ 17 ] Ordinarily, obtaining evidence under a threat of prosecution would lead to an exclusion of the evidence, being made as it was without affording the accused person with any police warning, opportunity to contact counsel or information regarding Charter rights.

In this case, I would exclude that evidence but for Fisheries Act , s. 61(1) and (2) which compel persons to provide information when engaging in fishing; s. 62 which prohibits obstruction or hindering of fishery officers carrying out duties or functions under the Act ; and s. 63(1) that prohibits the making of false statements. 61(1) The following persons may be required under this Act to provide information or to keep records, books of account or other documents: (

a) any person who engages in fishing; (

b) any person who purchases fish for the purpose of resale; (

c) any owner, operator or manager of an enterprise that catches, cultures, processes or transports fish; and (

d) any agent or employee of a person referred to in paragraphs (

a) to (c).

(2) A person referred to in subsection (1) may be required to provide information or to keep records or other documents relating to any of the following matters: (

a) the number, sex, size, weight, species, product form, value or other particulars of any fish caught, cultured, processed, transported, sold or purchased; (

b) the time and place at which any fish was caught or landed and the person, enterprise or vessel by which the fish was caught or landed; (

c) the time and place at which any fish was purchased and the person, enterprise or vessel from which the fish was purchased; (

d) the vessels, gear and methods used and the number of persons employed for the purpose of catching fish; (

e) the buildings, equipment, products and methods used and the number of persons employed for the purpose of culturing or processing fish; and (

f) any other matter relating to the proper management and control of fisheries or the conservation and protection of fish. 62 No person shall obstruct or hinder a fishery officer, a fishery guardian or an inspector who is carrying out duties or functions under this Act. 63(1) No person shall make a false or misleading statement, whether orally or in writing, to an inspector, a fishery officer, a fishery guardian, any authority designated by a fishery officer or a fishery guardian or any authority prescribed under paragraph 38(9)(

a) or (

b) who is carrying out duties or functions under this Act. [ 18 ] While the Act clearly contemplates offenders making incriminating statements, it is valid and subsisting legislation. The offences are strict liability offences. The Charter can and does apply to strict liability offences where the breach of Charter rights of an accused person may lead to a conviction and jeopardy of his life, liberty and security of the person. [ 19 ] This must include the inherited rights of First Nations people in the right circumstances. Not all breaches of these rights result in such jeopardy.

Even where such jeopardy results, the actions or legislation may still be saved. However, if any of that is to be determined, there must be evidence before the court about the specific rights and the impact of the individual jeopardy. I have neither in this case, apart from submissions. That may well be an argument for another day in another case. [ 20 ] In the context of these sections, had Mr. Adolph declined to retrieve his backpack - as he was entitled to do - he would have been compelled to direct the fisheries officer to where that backpack was hidden. While I find that there has been a breach of Mr.

Adolph’s Charter rights in the circumstances, in the context of this legislation, I am not excluding the evidence. The same reasoning and sections apply to Mr. Joseph’s statement. [ 21 ] Sergeant Dale Austinson was stationed with the Lillooet Tribal Police. He attended to assist the conservation officer in the execution of his duties. He was also in uniform. His role was to provide cover for the conservation officer and so he did not hear any conversation. He did observe Mr. Joseph in his truck and Mr. Adolph coming up the trail. He observed that everyone was cooperative.

Trial Decision [ 22 ] I return now to the decision on the trial. [ 23 ] I have ruled the statements made by Mr. Joseph and Mr. Adolph admissible. This leads to the primary defence of Messrs. Adolph and Joseph which amounted to demanding proof of when they gave up their fishing rights. These rights had been, for them, traditional for hundreds of years. [ 24 ] I received no evidence on this trial of the cultural connection of the Xaxli’p people to the Fraser River.

However, judging as I do in this district, I can take judicial notice of the fact that the First Nations people who reside along the Fraser River have been fishing it for hundreds of years. [ 25 ] Ordinarily, I would be entirely sympathetic of Messrs. Adolph and Joseph regarding their traditional right to fish. However, their community is bound by the communal licence process for the betterment of all communities residing along the Fraser River.

In this case, the seized contraband fish were given to those communities who would ordinarily have been permitted to fish the Sockeye, had the fish made their way that far along the Fraser. The licences are in place not to deprive people of their traditional fishing rights but to provide conservation services for the betterment of all of the communities.

[ 26 ] Messrs. Joseph and Adolph are correct that these are matters that ought to be dealt with between the various First Nations and the Department of Fisheries and Oceans. It is only through a cooperative system that fishing regulations and restrictions will work for the betterment of everyone. However, for the time being, we are all bound by the various acts and regulations presently governing fishing for First Nations and all others. Messrs.

Adolph and Joseph were both in contravention of those provisions. [ 27 ] I am satisfied that the Crown has proved beyond a reasonable doubt that Donovan Sterling Adolph and Curtis Brandon Reid Joseph did unlawfully fish other than under the authority of licence as set out in Count 1 and that they did unlawfully possess fish caught contrary to regulations as set out in Count 2. ______________________________ S.D. Frame Provincial Court Judge