R. v. Prince and Prince Date:, 2011 BCPC 26

Citation: R. v. Prince and Prince Date: 20110125 2011 BCPC 0026 File No: 23247 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. VINCENT CHARLES PRINCE and RUSSEL KEITH PRINCE REASONS FOR JUDGMENT OF THE HONOURABLE ASSOCIATE CHIEF JUDGE M. J. BRECKNELL Agent for the Director of Public Prosecutions: J. Swales, Q.C. Counsel for the Defendant V. Prince: G. Leven Counsel for Defendant R. Prince: G. Ollis Place of Hearing: Fort St. James, B.C.

Date of Hearing: December 3, 4 and 8, 2009; April 7, June 8 and August 20, 2010 Date of Judgment: January 25, 2011 INTRODUCTION [ 1 ] Vincent Charles Prince (Vince Prince) and his brother Russel Keith Prince (Russel Prince), (collectively the Accused) are charged on Information number 23247 with multiple Counts of breaches of the Fisheries Act by illegally fishing for, catching, possessing and retaining sockeye salmon during a closed period and by obstructing fisheries officers on July 21, 2006 at Stuart Lake near Fort St.

James, British Columbia. [ 2 ] The Accused advance the defence of honest belief that they were permitted to fish and contend that their interaction with the fisheries officers did not amount to an obstruction. THE EVIDENCE Historical Background [ 3 ] The Accused are status Indians and members of the Nak’azdli Indian Band. The Nak’azdli people have lived in the area now known as Stuart Lake and Fort St.

James for thousands of years. [ 4 ] The ancestral home of the Accused, Noo Yeez, now known as Long Island, was the home of Gwi, or Chief Kwah, an important historical figure who had dealings with the explorer Simon Fraser, the founder the Hudson Bay Company post at Fort St. James. [ 5 ] The Accuseds’ family have been residing in Nak’azdli for hundreds of years and have been fishing in the waters nearby for many generations. Vince Prince learned to fish from his father, grandmother and extended family. The Prince family is known in the Nak’azdli community as fishermen.

[ 6 ] For many years fishing has provided the Accused with a livelihood, an ability to share with others, particularly the elders, and a cultural focus for the Prince family. [ 7 ] The salmon spawning migration up the Fraser River and its tributaries each year provided an important food source for various First Nations, including, the Nak’azdli for thousands of years. [ 8 ] In modern times the spawning migrations in the Fraser watershed have been given different names based on the time when the salmon enter the Fraser River and their eventual spawning area.

The first of these migrations each year has become known as the Early Stuart run because it ends up in Stuart Lake and its river systems, the traditional territory of the Nak’azdli people. Fishing Agreements and Amendments [ 9 ] Due to declining returns and the importance of salmon to the First Nations people along the Fraser watershed, various accords were entered into between the Government of Canada as represented by the Department of Fisheries and Oceans (DFO) and various aboriginal organizations. [ 10 ] One of these aboriginal organizations is the Carrier Sekani Tribal Council (CSTC).

The Nak’azdli Indian Band is one of five member First Nations which compose the CSTC. [ 11 ] In 2004, the CSTC and the DFO entered into a Comprehensive Fisheries Agreement (the Agreement) which was to last from April 1, 2004 to March 31, 2008.

Under the terms of the Agreement, a fishing Licence (Licence) was issued on an annual basis to permit fishing for salmon for food, social, or ceremonial purposes by designated members of the various First Nations comprising the CSTC. [ 12 ] The Agreement provided for the cooperative management of fish stocks by recognizing an aboriginal right to fish under certain conditions while at the same time providing for DFO oversight and enforcement over the fishing falling under the Agreement for the protection of the fish stock. [ 13 ] Pursuant to the Fisheries Act (the Act ) and the Aboriginal Communal Fishing Licenses Regulations (the Regulations) and within the terms of the Agreement, the CSTC and the DFO agreed to the licensing of fishing activities for various types of salmon, at various locations, at various times using various fishing gear. [ 14 ] In conjunction with the Licence, Amendments were also issued that restricted or closed fishing at certain times for conservation reasons.

Such Amendments were issued by the DFO in 2004 and 2005 when the Early Stuart run were due into Stuart Lake. 2005 Fishing Season [ 15 ] In 2005, Vince Prince, who was at the time an elected councillor for the Nak’azdli Indian Band, questioned the reasoning behind the closure. Vince Prince said in evidence that he believed closures were necessary but he did not necessarily agree with blind closures. Due to his concerns meetings between him and various DFO officials were held.

In those meetings it was noted that Vince Prince was operating a youth cultural camp and that he needed salmon for that endeavor. [ 16 ] Those meetings and Vince Prince’s need for fish lead to the issuing, on August 2, 2005, of an Aboriginal Communal Fishing Licence for Ceremonial Purposes (the Ceremonial Licence) permitting the Nak’azdli Indian Band, and specifically Vince Prince, to take up to 30 sockeye salmon by gillnetting for the cultural camp he was operating. The Ceremonial Licence was issued during what was otherwise a closed period.

It was personally handed to Vince Prince by Fishery Officer Donald Knoop (F/O Knoop). [ 17 ] In his evidence F/O Knoop described Vince Prince as outspoken and a person who raised concerns with regard to closures but that he respected the need to conserve the Early Stuart sockeye salmon run.

The Knoop Meeting [ 18 ] In the late spring of 2006, Vince Prince spoke by telephone on a couple of occasions with F/O Knoop in which they had general discussions about the possible closures of the Early Stuart run fishery and Vince Prince’s need for fish for his cultural camp. [ 19 ] In May 2006, Vince Prince and F/O Knoop unexpectedly bumped into each other at a Prince George fast food restaurant. F/O Knoop’s recollection of the meeting was that there were discussions between him and Vince Prince concerning possible closures and the cultural camp that Vince Prince was running.

They also had a discussion about the possible issuing of a Ceremonial Licence. F/O Knoop was unable to recall whether he told Vince Prince if there was going to be a closure that he or someone from the DFO would be in touch with Vince Prince. [ 20 ] Vince Prince’s recollection of the meeting was that he and F/O Knoop discussed possible closures and the cultural camp.

He also recalled F/O Knoop saying that he would contact Vince Prince if there was a closure to work out something with regard to providing salmon for the cultural camp. 2006 Fishing Season [ 21 ] On June 13, 2006, a Licence was issued permitting fishing for sockeye salmon by CSTC members in certain specific areas between June 13, 2006 and December 31, 2006 by the use of gillnets of certain size and length.

Under the Licence all permitted fishing was to be for food, social, or cultural purposes. [ 22 ] On June 19, 2006, Chief Harry Pierre of the CSTC released a letter, authored by him and the CSTC fisheries manager, Bill Shepert (Mr. Shepert), directed at the Fraser First Nations (the Pierre Letter) which said in part: . . . . . The forecast run-size projections for this stock are very poor for this year, and in combination with the forecast enroute survival issues, we will be fortunate 30,000 – 50,000 spawners materializing in the spawning areas. These figures assume “0” exploitation in

First Nations harvests and other fisheries. This represents a near record low escapement for the stock. We are therefore respectfully requesting that all Fraser First Nations unite in support of a complete closure on the harvesting of sockeye from the Fraser River during the period the Early Stuarts are migrating . (underlined in original document). [ 23 ] The Fraser First Nations consist of all the aboriginal communities located between the mouth of the Fraser River and Prince George. [ 24 ] On the very same day Robert Antoine (Mr.

Antoine) the fisheries liaison for the Nak’azdli Indian Band to the CSTC provided a Fisheries Report (the Report) to the Nak’azdli Band council meeting which said in part: A reminder of the 2006 Salmon Fishing season is around the corner. At this time the water is high and cooler than recent years and should be in good shape and firm, hopefully. Since the Band had voluntarily given up fishing, the early Stuart in 2004 & 2005, it is recommended that Nak’azdli fish this year (2006) early Stuart run. A motion at the 2006 AGA would be sufficient to satisfy everyone.

Nak’azdli does not take large amounts anyway so good fishing to those who are going to fish. (sic) [ 25 ] When the Report was delivered to the Nak’azdli Band council, Vince Prince was a Band councillor and he received that Report. [ 26 ] The AGA or Annual General Assembly of the Nak’azdli Indian Band referred to in the Report was held on June 26, 2006, at Kwah Hall. Although he was the Chief of the Nak’azdli Indian Band at the time, Chief Leonard Thomas (Chief Thomas) did not chair the AGA. He did attend parts of the AGA but also attended to other duties as well. [ 27 ] At the AGA Mr.

Shepert provided an oral report as well as copies of the Pierre Letter. The Accused also attended the AGA but missed Mr. Shepert’s presentation. Vince Prince read the Pierre Letter and mistakenly thought that it was also directed to the Nak’azdli Indian Band. [ 28 ] He spoke out against the Pierre Letter at the AGA, and said the following: a. That the CSTC had no authority to tell him when he could fish or not; b. That he had not seen any benefits from previous closures despite the continuous compliance of the Nak’azdli Indian Band; and c.

That he wanted to exert his right to fish for salmon. [ 29 ] Later, Vince Prince read the Pierre Letter more closely and realized it was not directed at the Nak’azdli Indian Band. [ 30 ] Mr. Antoine also attended to AGA. Chief Thomas stated in evidence that he did not see Mr. Antoine regularly but if Mr. Antoine wanted to talk to him he would call to provide information about fishery issues. In his evidence Vince Prince stated that 99% of what the Band council learned concerning information coming from the DFO came through Mr. Antoine. There is no evidence presented that Mr.

Antoine, who is now deceased, made any presentation to the AGA. [ 31 ] His co-worker, Ms. Sandra Joseph, (Ms. Joseph), was the aboriginal fisheries catch monitor for the Nak’azdli Indian Band. In her direct evidence she stated that she attended the 2006 AGA. However, in her evidence under cross-examination, she confirmed that she told Fishery Officer Daniel Tomlinson (F/O Tomlinson) on September 7, 2006, that she had not attended the 2006 AGA, Mr. Antoine had. She stated the information she provided to F/O Tomlinson was incorrect and she had attended the AGA but had to leave early. [ 32 ] Ms.

Joseph had several duties as the fisheries monitor including monitoring the number of fishermen and fish caught to ensure compliance with the Agreement and the Licence issued under it. She also had the duty, along with Mr. Antoine, to post in public places the Licence or Amendments to it. Where the Licence and Amendments were posted, when they were posted, and who did the posting, forms an important aspect of the defence theory in this case. [ 33 ] In her direct evidence Ms. Joseph stated that Mr. Antoine would obtain the Licence or Amendments and rely on her to post them.

She stated she posted them at the Kwah Hall, the Treaty office and the Band office on bulletin boards or by taping the documents to the window in an obvious place for people to see them. [ 34 ] Under cross-examination Ms. Joseph acknowledged that on some occasions the Band secretary would receive documents by fax and post them or contact her so she could post them. In her statement to F/O Tomlinson she said the Band secretary posted the notices in 2006. In his evidence Chief Thomas stated that he was unaware that it was part of Ms. Joseph’s job to post any documents received from the DFO. He believed that Mr.

Antoine would receive documents and ask the Band secretary to post them. [ 35 ] On June 26, 2006, the same day as the AGA, the first Amendment to the Licence was issued closing the sockeye salmon fishery from July 10 until August 2, 2006, and prohibiting the use of gillnets on various waterways including the Stuart River and Stuart Lake. [ 36 ] Ms. Joseph stated that on July 15, 2006, she met up with Vince Prince in front of the Band office and advised him that the fishing was now closed. She said that Vince Prince replied that he had caught five salmon and that he was going to go fishing anyway.

Under cross-examination she acknowledged that she was unaware of any closure on July 15, 2006, that she believed there was an anticipated closure and that Vince Prince said that until there was a closure he would continue to fish. [ 37 ] Ms. Joseph also acknowledged that in her statement to F/O Tomlinson on September 7, 2006, she stated she first became aware of the closure on July 16 or 17. Under re-examination, she said she became aware of the first closure from Mr. Antoine or by the Band receiving a fax.

[ 38 ] In several areas while under cross-examination Ms. Joseph gave contradictory answers regarding dates, notices for posting, who posted them and when she became aware of them. [ 39 ] Ms. Joseph left her position as the fisheries monitor in 2006 at the end of the season due to what she described as intimidation arising from the matters that are now before the Court. [ 40 ] As a result of several deaths in the community and the resulting ceremonial activities such as wakes, for which food was needed, discussions were held between Chief Thomas and Vince Prince.

Neither Chief Thomas nor Vince Prince were able to specifically recall the conversations with regard to location, date, or context. [ 41 ] Vince Prince’s recollection of the discussions was that Chief Thomas and he discussed the need for fish for the wakes.

Chief Thomas never specifically directed him to fish, he believed he needed to fish for the benefit of the community and given that there was no closure that such fishing would be appropriate. [ 42 ] Chief Thomas’ recollection was that he and Vince Prince had some conversations about the need for fish for to the wakes and he told Vince Prince to go ahead and fish because he had the right to fish. [ 43 ] Vince Prince’s ability to have been able to observe any closure notices, particularly at the Band office was at issue.

Vince Prince stated in his evidence that he had little reason to attend the Band office after the AGA because there were no further meetings of Band council during the summer. Vince Prince noted that Chief Thomas was regularly at the Band office throughout the year when he was not out of town and that Chief Thomas never mentioned to him being aware of any closure. Vince Prince described himself as a busy guy and not a person who would regularly go to the Band office to look for documents that may be posted.

Chief Thomas stated that Vince Prince normally came to the Band office two or three times a week. [ 44 ] Chief Thomas stated that he was routinely at the Band office and that had a closure been posted either he would have seen it or would have been reminded of it by Mr. Antoine. Chief Thomas stated that in his past experience discussions were held at a high level between the DFO and the CSTC and then the Nak’azdli Band was advised by CSTC either by fax, or phone, or even with someone travelling to Nak’azdli to advise the community.

In 2006 Chief Thomas stated he was aware of some high level discussions concerning possible closures. [ 45 ] On July 20, 2006, a second Amendment to the Licence was issued closing the sockeye salmon fishery from July 20 until August 6, 2006, and prohibiting the use of gillnets on various waterways including the Stuart River and Stuart Lake. [ 46 ] The first Amendment was personally delivered to the office of the CSTC by a DFO official. Such delivery is deemed notice to the CSTC and its members in compliance with the Agreement.

There was no evidence of the second Amendment being delivered to the CSTC before July 21, 2006. July 21, 2006 Incident [ 47 ] On July 19, 2006, Fishery Officer Phillip Taylor (F/O Taylor) received information regarding fishing in Stuart Lake at Nak’azdli. [ 48 ] On July 20, 2006, he along with F/Os Tomlinson and David Reedman (F/O Reedman) went to Fort St. James. Once there, they observed from various vantage points gillnets floating on Stuart Lake near Long Island.

They determined fishing may be taking place and decided to return the next morning to check on any people attending to the nets. [ 49 ] On July 21, 2006, in the early morning, the three fisheries officers returned to Fort St. James and readied their aluminium river jet boat on Stuart Lake. They waited and watched from a distance of approximately one kilometre away for fishermen to approach the nets. All the fisheries officers were dressed in their service uniforms complete with service belt including side arms.

They were all wearing lifejackets. [ 50 ] In the early morning hours of July 21, 2006, Vince Prince, Russel Prince and Vince Prince’s son approached the nets in Vince Prince’s boat and began to pull in the nets and the salmon caught in them. The fisheries officers then drove their boat over to Vince Prince’s boat. The speed of the fisheries boat and the manner of its approach raised concerns in the minds of the Accused. Russel Prince described the fisheries officers approach and actions as being like John Wayne.

The Accused claimed the fisheries officers were aggressive and one had his hand on his side arm throughout the incident. That was denied by all three fisheries officers. F/O Taylor who was operating the fisheries boat denied any unsafe operation of that vessel. [ 51 ] F/O Taylor advised the Accused that fishing was closed. Both Accused expressed surprise at that pronouncement. Vince Prince told F/O Taylor that Chief Thomas had said it was okay to fish. Russel Prince expressed that he had the right to fish. F/O Tomlinson said in his evidence that he believed Vince Prince was feigning surprise.

The other fisheries officers did not offer a similar opinion. [ 52 ] F/O Taylor advised the Accused that fishing was closed and that they would be seizing the fish and the nets. That resulted in a very loud and aggressive verbal argument between the members of each of the two boats which lasted for several minutes. [ 53 ] Vince Prince told F/O Taylor to call Chief Thomas.

F/O Taylor did call Chief Thomas and was advised by Chief Thomas that he did not know of any closure and that he had told his people to fish for the wakes that were being held in the community. [ 54 ] There was more discussion and arguing between the members of the two boats and Russel Prince became very agitated and angry, clenching his fists and acting in a very aggressive fashion.

He was asked numerous times by F/O Taylor to provide his name and he refused on each occasion. [ 55 ] After more discussion there was an agreement between the fisheries officers and the Accused to pull the nets in and to allow the fish to be seized. F/O Tomlinson and Reedman went aboard Vince Prince’s boat and started to bag the salmon for seizure. Vince Prince

said that he agreed to the fish being seized for use at the wakes since that was the purpose for which he was fishing. As that process was going on, F/O Taylor again raised the issue of seizing the nets which resulted in a further round of argument and disagreement. [ 56 ] Vince Prince made it very clear to the fisheries officers that he would not permit them to seize his nets without arresting him. He said he disagreed with the net seizure because he believed they had done nothing wrong.

Russel Prince became very aggressive again, commenting to the fisheries officers that the two things he liked most were fisticuffs and fornicating. He also called the fisheries officers a number of very derogatory racial slurs. This further confrontation lasted for approximately another 20 minutes. [ 57 ] During that time F/O Taylor explained to the Accused that they were obstructing his efforts and explained in detail what obstruction of a fisheries officer was.

As the level of tension and confrontation remained at a high level the fisheries officers concluded that they did not wish to have a physical altercation with the Accused while they were all in boats for the following reasons: a. No one on Vince Prince’s boat was wearing a life jacket; b. There is the possibility that one or more persons could end up in the water; c.

Vince Prince’s son, a youth, was present. [ 58 ] While the altercation was going on between the fisheries officers and the Accused, Vince Prince called on the radio for somebody to come with a video camera and to call the media. [ 59 ] After more discussion Vince Prince’s attitude changed and he started to act as an intermediary between Russel Prince and the fisheries officers with regard to the matters at hand. [ 60 ] Eventually F/O Taylor called the RCMP and RCMP members agreed to meet everyone at Long Island.

The Accused agreed to go to Long Island, Vince Prince’s residence. [ 61 ] In his evidence Vince Prince pointed out that with his fishing knowledge he could have gone to a more remote location to fish if he wanted to hide. He further stated that if he had known of the closure he could have gone to the Babine Lake area to fish. Instead, he fished in front of his home because he believed he could legally do so. [ 62 ] Once everybody was at Long Island, F/O Taylor spoke with Chief Thomas and Staff Sgt. Zettler of the RCMP.

Between those gentlemen and discussions with Vince Prince an accord was eventually reached in the following terms: a. The 112 seized sockeye salmon were photographed and turned over to the elders for use by the community for the wakes to be held; b. The Accused agreed to be photographed indicating which nets were theirs and then sign an Affidavit confirming the ownership of the nets and; c. If b. was complied with, the Accused would be permitted to retain their nets. [ 63 ] The Crown did not call evidence regarding the length of the gillnets used by the Accused.

Vince Prince, in cross-examination, guessed his longest net might be 160 feet but he believed that restrictions did not apply to lake fishing. Russel Prince was unable to say if his net was 100 feet long or more. [ 64 ] The Accused were not arrested on the water or at Long Island but were arrested later. [ 65 ] Russel Prince’s identity was not established until F/O Taylor spoke to a RCMP member at Long Island who confirmed his identity. [ 66 ] There was no evidence presented that the fisheries officers ever checked to see if the Licence or either of the Amendments were posted in any public area at Nak’azdli.

THE LAW Fisheries Act and Regulations [ 67 ] A number of sections of both the Act and various Regulations falling under it may have application in this case including: a. 25

(1) Subject to the regulations, no person shall place or set any fishing gear or apparatus in any water, along any breach or within any fishery during a close time. b. 33: No person shall purchase, sell or possess any fish that has been caught in contravention of this Act or the regulations. c. 50: Any fishery officer, fishery guardian or peace officer may arrest without warrant a person who that fishery officer, guardian or peace officer believes, on a reasonable grounds, has committed an offence against this Act or any of the regulations, or whom he finds committing or preparing to commit an offence against this Act or any of the regulations. d. 51.

A fishery officer or fishery guardian may seize any fishing vessel, vehicle, fish or other thing that the officer or guardian believes on reasonable grounds was obtained by or used in the commission of an offence under this Act or will afford evidence of an offence under this Act, including any fish that the officer or guardian believes on reasonable grounds. e. 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;

(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: (

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; f. 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. g. 78: Except as otherwise provided in this Act, every person who contravenes this Act or the regulations is guilty of (

a) an offence punishable on

summary conviction and liable, for a first offence, to a fine not exceeding one hundred thousand dollars and, for any subsequent offence, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year, or to both; h. 78.6: No person shall be convicted of an offence under this Act if the person establishes that the person (

a) exercised all due diligence to prevent the commission of the offence; or (

b) reasonably and honestly believed in the existence of facts that, if true, would render the person’s conduct innocent. Fishery (General) Regulations 22.

(2) The Minister may, for the purposes of the conservation and protection of fish, amend the conditions of a licence.

(3) A notice of any Amendments referred to in subsection (2) shall be (

a) sent to the licence holder by registered mail; or (

b) personally delivered to the licence holder by a fishery officer.

(4) An Amendments referred to in subsection (2) is effective from the time the licence holder receives the notice referred to in subsection (3). Pacific Fishery Regulations, 1993 26(1) Subject to subsection (2), no person shall fish except under the authority of a Licence issued under these Regulations, the Fishery (General) Regulations or the Aboriginal Communal Fishing Licences Regulations . Aboriginal Communal Fishing Licences Regulations 2. In these Regulations, “aboriginal organization” includes an Indian Band, an Indian band council, a tribal council and an organization that represents a territorially based aboriginal community; 4.

(1) The Minister may issue a communal licence to an aboriginal organization to carry on fishing and related activities. 7. No person carrying on fishing or any related activity under the authority of a licence shall contravene or fail to comply with any condition of the licence. Case Law [ 68 ] Defence counsel provided the following cases with regard to the defence of honest belief: a. R. v. IPSCO Inc . [1998] B.C.J. No. 3318 (BCSC) b. R. v. Hussey [1993] N.J. No. 2 (NFLD. P.C.) [ 69 ] In IPSCO, Stromberg-Stein J. in commenting on s. 78.6 of the Act , said the following at paragraphs 9 and 10: 9.

Due diligence and reasonable care are similar concepts. Reasonable and honest belief in a set of facts is a very different concept. The former deals with the accused’s actions or steps taken to avoid the commission of an offence. The latter deals with the accused’s state of mind; that is, that the accused did not have certain knowledge and that there was no reason for the accused to inquire further. 10. In dealing with the level of fault required for strict liability offences in R. v. Sault Ste.

Marie (1978), 85 D.L.R. (2d) 161, the Supreme Court of Canada discussed both the potential for a reasonable mistake of fact and a requirement that an accused person demonstrate reasonable care.

Clearly, the delineation of two separate defences separated by an “or” in s. 78.6 of the Fisheries Act, indicates a view taken by Parliament that for greater clarity, the two defences must be considered separately. [ 70 ] In Hussey , Handrigan, P.C.J. in permitting the defence of honest belief arising from fishing during a closure commented on a number of factors he considered in that case which may have application in this case including: a. The issuing of a “plethora of quotas”;

b. The licence as issued was amended on two occasions; c. The manner in which the DFO issued permits, in light of quotas, created a likelihood that fishermen might be mistaken; d. Inadequate notice of the closure of the fishery was provided by the DFO to fishermen; e. Inadequate steps were taken by the DFO to promulgate the notice of the closure to those directly affected by it; f. Communication between a DFO official and the accused of a “possible future closure” was not sufficient to put the accused on notice that a closure was actually going to occur.

SUBMISSIONS [ 71 ] The Agent for the Director of Public Prosecutions (the Crown) and counsel for the Accused agreed that the charges in the Information could reasonably be categorized into two areas: a. Counts 1, 2, 3, 4 and 7 dealing with whether or not the fishing activities of the Accused constituted offences; b.

Counts 5 and 6 dealing with whether or not the Accused obstructed fisheries officers. [ 72 ] With regard to the first category all counsel agreed that if the Accused were found guilty of one count they would be guilty of all the counts in that category. [ 73 ] At the end of the evidence counsel for the Accused acknowledged the following occurred on or about July 21, 2006 on Stuart Lake: a. The Accused were using a gillnet; b. The Accused retained sockeye salmon; c. The Accused placed or set fishing gear; d. The Accused possessed sockeye salmon; e. The Accused engaged in fishing.

Vince Prince [ 74 ] With regard to the first category of allegations, Vince Prince’s counsel advanced only the argument that he had an honest belief that he could fish as described in s. 78.6 (

b) of the Act . [ 75 ] Relying on IPSCO and Hussey Vince Prince’s counsel asserted that there are two elements to be considered in the defence of honest belief, namely: a. Whether Vince Prince had a subjective belief that he could legally fish; and b. Whether or not that belief was reasonable on an objective basis. [ 76 ] In support of those elements Vince Prince’s counsel relied on the following: a. His evidence that he was not aware of any closure; b. F/O Taylor’s evidence that when confronted on Stuart Lake Vince Prince seemed surprised when advised of the closure; c.

Chief Thomas’ evidence that he had no knowledge of the closure and that he had invited Vince Prince to fish; d. Mr. Shepert’s evidence that as the CSTC fisheries manager he was not aware of any closure; e.

F/O Knoop’s inability to recall any of the details of his 2006 meeting with Vince Prince in Prince George except a general discussion of possible closures of the fishery and Vince Prince’s need for food for his cultural camp; contrasted with Vince Prince’s recollection that F/O Knoop told him that if a closure was to occur he would contact Vince Prince to see how his cultural camp needs could be accommodated; f. Mr. Antoine’s Report recommending that fishing proceed given Mr. Antoine’s position as the fisheries liaison to CSTC. [ 77 ] Vince Prince’s counsel also took issue with the evidence of Ms.

Joseph particularly in the following areas: a. She initially gave evidence that she posted the Licence and the Amendments in three prominent locations around Nak’azdli namely the Treaty Office, the Band Office and Kwah Hall, but under cross-examination she acknowledged that she believed some documents on some occasions were posted by the band secretary, Ms. Thomas; b. Her evidence that Chief Thomas was at the Band Office regularly but Chief Thomas stated he never saw any closure notices; c.

In direct evidence she stated she was at the 2006 AGA but under cross-examination she admitted she had earlier told F/O Tomlinson that she did not attend the 2006 AGA, Mr. Antoine did;

d. In the July 15, 2006, conversation with Vince Prince, she agreed they were discussing an anticipated closure. However, although she was the fisheries monitor she was not aware of the first Amendment until July 16 or 17, 2006 (after her conversation with Vince Prince) and over two weeks after it was issued. Therefore her evidence that she posted the Amendment is suspect. [ 78 ] Counsel acknowledged that Vince Prince fished on both July 20 th and 21 st in front of his home.

He was fishing because he had been asked by Chief Thomas and various elders in the community to provide fish for three wakes which were about to be held. [ 79 ] Counsel further submitted that: a. There was no evidence presented by the Crown that anyone from DFO confirmed that any Amendments were posted anywhere in Nak’azdli July 21st, 2006. b.

Given that Vince Prince had raised concerns about the fisheries closures in 2005 and that he engaged in discussions with DFO officials about them prior to being issued the Ceremonial Licence, he was well aware that had there been a closure in 2006, there was a process by which he could have obtained a Ceremonial Licence to catch salmon; c.

All of Vince Prince’s actions point to an honest mistake both on a subjective and objective basis and he is entitled to an acquittal on those Counts. [ 80 ] With regard Count 5 alleging that Vince Prince obstructed the fisheries officers by preventing them from seizing the gillnets, he also relied on his honest but mistaken belief that he had done nothing wrong and that he was not yet arrested and as such could refuse the fisheries officers request. [ 81 ] Counsel submitted that Vince Prince had no positive duty to comply with demands of the fisheries officers until he was arrested and that the fisheries officers declined to arrest him or Russel Prince because they feared further inflaming the situation, in particular, based on Russel Prince’s reactions.

As such the charge of obstruction against him was not made out. Russel Prince [ 82 ] Russel Prince’s counsel adopted the submissions made by Vince Prince’s counsel. In addition, by relying on Hussey , Russel Prince’s counsel drew the following analogies: a. In Hussey there were a plethora of quotas. In this case there was the Agreement, the 2006 Licence, the first Amendment, second Amendment, the previous issuing of a Ceremonial Licence, the Pierre Letter, and the Report, which made things at least as confusing as the facts in Hussey ; b.

The various Amendments of the Licence permitting some fishing in some circumstances are similar to the changes to the quotas in Hussey; c. At the AGA no one knew of any closures even though the first Amendment had been issued on that very day; d. The actions or inactions of the DFO and Ms. Joseph provided inadequate notice of any closures; e. There was no effort put into contacting the very people who would be fishing and who were known to be fishermen from previous years. [ 83 ] In that regard, and in support of his defence of honest belief, Russel Prince’s counsel relied on the following evidence: a.

In previous years he had never seen a Licence posted; b. He never saw either Amendments posted until after his arrest; c. He first heard about the closure from the fisheries officers on July 21, 2006; d. F/O Reedman’s evidence that Russel Prince stated that that the fishery was not closed and that he had a right to fish immediately upon being told of the closure. [ 84 ] In addition, Russell Prince’s counsel pointed to various factors that should be considered and lead the Court to conclude his honest belief was objectively reasonable including: a. There was no mention of a closure at the AGA; b. Mr.

Shepert, the CSTC fisheries manager knew of no closure; c. Mr. Antoine, the fisheries liaison for the CSTC knew of no closure; d. Chief Thomas knew of no closure; e. Vince Prince, the person primarily responsible for fishing in the family, knew of no closure. [ 85 ] With regard to the charges of obstructing a fisheries officer set out in Counts 5 and 6, counsel for Russel Prince acknowledged that he refused to permit his net to be seized and did not provide his name when asked by the fisheries officers on Stuart Lake.

However, counsel submitted there is no requirement in the Act for a person to identify themselves if they are not under arrest. Sections of the Act spell out fisheries officers’ powers about seizure of equipment but there is nothing in the Act that requires a person to identify themselves if they are not arrested.

[ 86 ] Furthermore, Russel Prince’s counsel submitted that the Court should examine the various circumstances surrounding his interactions with the fisheries officers including: a. The Nak’azdli community was in crisis after three deaths with food for wakes to be provided for; b. Chief Thomas had provided direction to Vince Prince and hence to Russel Prince to assist by fishing to feed the people for the wakes; c. Russel Prince had no idea of the closure; d.

On the day in question, their fishing boat was approached quickly by a large jet boat containing three fisheries officers and during their interaction with the fisheries officers one had his hand on pistol; e. The fisheries officers were acting like “John Wayne” and refused to enter into any discussions about the reason for fishing; f. The fisheries officers became more conciliatory after Russel Prince became belligerent; g.

Although Russel Prince was angry and upset he had a begrudging respect for the process. [ 87 ] In light of all of those factors, counsel for Russel Prince maintained that the charges of obstruction by refusing to relinquish his net and by refusing to provide his name were not made out. Director of Public Prosecutions (The Crown) [ 88 ] With regard to the charges of obstruction the Crown pointed to s. 61(1)(

a) and (2)(

b) of the Act which the Crown contends requires a person to identify themselves if they are fishing. [ 89 ] With regard to the issue of whether or not the Accused were illegally fishing the Crown submitted there are three factors that must be examined, namely: a. Whether or not there was notice given; b. The Accuseds’ knowledge of the notice; c.

What sort of knowledge is required in order to provide a defence to the Accused? [ 90 ] The Crown noted that the offences charged are regulatory offences and as such the concept of strict liability applied, namely, that the offences are made out if the Accused knew or ought to have known.

In other words, if the Accused wished to rely on a licence to permit them to do something, they must establish that they have a licence which the Accused in this case were unable to prove because the licence in question was amended. [ 91 ] The Crown also submitted that the submissions of Vince Prince’s counsel that this is a matter of mistake of fact were incorrect because there is no issue as to what the facts are, instead, any argument must be based on either a mistake of law or a mistake of mixed fact and law. [ 92 ] The Crown submitted it could ask the Court to strictly rely on the fact that proper notice was given the moment the first Amendment was provided to CSTC on June 27, 2006 in Prince George. [ 93 ] With regard to whether or not the Accused had actual notice of the closure, the Crown took two alternative positions, namely: a.

The Accused knew of the closure; or b. The Accused did not exercise due diligence and were wilfully blind concerning whether or not there was a closure. [ 94 ] Acknowledging some frailties in Ms. Joseph’s evidence, the Crown nevertheless submitted her evidence should lead the Court to conclude: a. She attended the AGA on June 26, 2006; b. She advised Vince Prince of a closure on July 15, 2006; c.

She or some other person from the Band office posted the Licence and Amendments in three public places in Nak’azdli. [ 95 ] The Crown also submitted that the Court should consider that what appeared to be contradictions in Ms. Joseph’s evidence may well have been caused by some confusion on her part when answering questions which could be due to cultural considerations. The Crown also submitted that Ms. Joseph did not dissemble under cross-examination but that she admitted some mistakes in some areas and stood her ground on others. Finally, the Crown noted that Ms.

Joseph had to leave her position in the fall of 2006 due to a conflict between her duties as the fisheries monitor and her loyalty to members of the Band which she perceived to be intimidation. There was no suggestion by the Crown that any intimidation Ms. Joseph might have felt was as a result of any actions of the Accused. [ 96 ] With regard to other possible sources of Vince Prince’s knowledge of the closure, the Crown relied on: a. Chief Thomas’ contradiction of Vince Prince’s evidence concerning how often he was at the Band office during the applicable time period;

b. Chief Thomas’ comment of “go fish” could not be taken to be an officially educed error in Vince Prince’s mind; c.

Vince Prince is an intelligent, knowledgeable advocate who was well aware of the regulatory scheme surrounding fishing in Nak’azdli because of his involvement in the issue in past years and his position as a Band councillor. [ 97 ] The Crown also submitted that Vince Prince’s alleged good relationship with and reliance upon his brief chance exchange with F/O Knoop concerning a possible closure and his understanding he’d receive specific notice of same from the DFO had to be contrasted with his attitude in 2005, that the same fisheries officer was harassing him during a visit to his residence. [ 98 ] The Crown contended that such reliance on an individual fisheries officer and Vince Prince’s failure to take other steps to confirm that the Licence was in effect and that there were no closures prior to fishing cannot be described as reasonable either subjectively or objectively. [ 99 ] In the case of Russel Prince, the Crown submitted he had even less of a defence of honest belief for the following reasons: a.

He never knew of any Licence being posted in any previous year because he never looked for one; b. He relied only on what was told to him by Vince Prince and other fishermen in the community regarding whether to fish or not and failed to make any inquiries of his own; in effect he was wilfully blind; c.

His demeanour and cavalier attitude while giving evidence was indicative of the fact that he had little regard for the DFO, the CSTC or any licensing or closure procedures they may have agreed to. [ 100 ] On the allegations of obstruction the Crown submitted that Russel Prince’s refusal to relinquish his net or give his name, his belligerent and aggressive attitude towards the fisheries officers, his statements in Court that the CSTC did not speak for him and his direct admission under oath confirming his actions provide ample evidence to convict him. [ 101 ] In the case of Vince Prince, the Crown conceded that although he initially objected to the seizure of his nets he became more conciliatory and in effect a mediator between the fisheries officers and Russel Prince and as a result the Crown invited the Court to not convict him of Count 5.

DISCUSSION Fishing Allegations [ 102 ] It is clear from both the evidence and what was acknowledged at the end of the trial by the Accused that they did the following on July 21, 2006 on Stuart Lake: a. Used a gillnet; b. Retained sockeye salmon; c. Placed or set fishing gear; d. Possessed sockeye salmon; e. Engaged in fishing. [ 103 ] The actus reus of the offences is clearly made out.

The real issue is whether or not mens rea is proven in the face of the Accuseds’ claim of honest belief under s. 78.6 of the Act . [ 104 ] The first issue to be resolved is what Amendment was in force on July 21, 2006; the first, the second or both. [ 105 ] There were no submissions made by counsel on whether the second superseded the first or whether they were both in effect.

There is no indication in the Act or the regulations as to what Amendment or Amendments may be in force in such circumstances. [ 106 ] If it is only the second Amendment that is in force, then the Crown’s case fails completely because no evidence was presented that it was delivered to the CSTC before July 21, 2006. [ 107 ] If both Amendments operate at the same time or if the first Amendment remains in force until the second Amendment is delivered then the issue does not arise as the first Amendment was delivered to the CSTC well before July 21, 2006.

For the purposes of this decision, I will decide the matter on the basis that the first Amendment remained in effect at the relevant time. [ 108 ] The Crown submitted but did not strongly argue, that such delivery would constitute deemed notice to the Accused that a closure was in effect. With respect, in the circumstances of this case a conviction could not be sustained on that fact alone. [ 109 ] The case of R. v. W(D) [1991] SCR 742 has clear application in this case. If I believe the Accused I must acquit them.

If I do not believe the Accused entirely but their evidence leaves a reasonable doubt I must acquit them. If I do not believe and I am not left with a reasonable doubt by the Accuseds’ evidence I must consider, based on the whole of the evidence I accept, whether the Crown has proven the case beyond a reasonable doubt. [ 110 ] The Crown invited the Court to believe most of Vince Prince’s evidence, except where it applied to his knowledge of the fishery closure.

Having had an opportunity to review all of the evidence presented, and particularly Vince Prince’s evidence, I accept the Crown’s invitation to believe Vince Prince’s evidence but go further to say that I accept almost all of his evidence insofar as I conclude that subjectively he did not know of the fishery closure.

[ 111 ] His evidence was given in a straightforward manner and not undermined during cross-examination. Vince Prince could have couched his evidence on many points in a fashion more favourable to his position, but instead gave evidence which in some respects did not enhance the strength of his case.

He explained that he relied not on only one thing but on several separate factors in concluding he could fish. [ 112 ] Although he may have fundamental objections to the regulation of fishing set out in the Agreement and the Licence, he appeared to clearly understand and accept the process including arranging for a ceremonial licence in the previous year. [ 113 ] The real issue to be decided is whether or not Vince Prince’s stated honest belief is objectively reasonable given all of the circumstances. [ 114 ] In deciding on whether or not Vince Prince’s honest belief is objectively reasonable I examined the following factors which I did not consider individually but rather in conjunction with one another and as part of the whole of the evidence: a.

His evidence that he was not aware of any closure; b. F/O Taylor’s evidence that Vince Prince seemed surprised when advised of the closure; c. Chief Thomas’ evidence that he had no knowledge of the closure and that he had invited Vince Prince to fish for food for the wakes; d. Mr. Shepert’s evidence as the CSTC fisheries manager he was not aware of any closure; e.

The contrast between F/O Knoop’s inability to recall any details of his chance meeting with Vince Prince and Vince Prince’s specific recollection that F/O Knoop told him that if there was a closure, he would contact Vince Prince to see how the cultural camp’s needs could be accommodated; f. Mr. Antoine’s Report delivered to the Band council recommending that fishing proceed given Mr.

Antoine’s position as the fisheries liaison to the CSTC. [ 115 ] Based on those factors, I conclude that Vince Prince did not do everything possible to confirm whether he could fish but what steps he did take and the information he relied on resulted in his honest belief and that that belief can be considered objectively reasonable. [ 116 ] If I am in error in drawing that conclusion based on the evidence I have just reviewed, I then find that Vince Prince’s evidence raises a reasonable doubt insofar as it would be possible to conclude that his belief was objectively reasonable, even if I do not accept the entirety of his evidence or the evidence of the other witnesses. [ 117 ] Russel Prince’s evidence concerning his honest belief is far more problematic.

I agree with the Crown that Russel Prince’s attitude concerning the regulations was cavalier and dismissive. However, I also note the following: a. He has a very poor education; b. He followed closures in previous years; c.

He relied on Vince Prince’s information and Vince Prince was effectively the skipper of the vessel on which Russel Prince was fishing and could be considered to have a higher duty to inform himself. [ 118 ] If Russel Prince’s evidence does not provide sufficient basis for an objectively reasonable belief it does at least raise a reasonable doubt in that regard. [ 119 ] If I am wrong in my analysis as described above, I must then determine whether based on all the evidence I accept the Crown has proven its case beyond a reasonable doubt regarding the first category of allegations. [ 120 ] On the crucial issue of whether the Accused had knowledge of the closure or even if by diligently looking for them, they could have found out about it, the Crown evidence falls short. [ 121 ] There was not sufficient evidence presented that the first Amendment was posted before July 21, 2006.

I draw that conclusion from the following: a. There was no evidence from the fisheries officers that they checked to ensure the first Amendment was posted in any of the three locations at Nak’azdli as described by Ms. Joseph; b. The confusion in Ms. Joseph’s evidence leads me to conclude that she may have never seen the first Amendment before July 21, 2006, but believed of its existence based on what she was told by Mr. Antoine or the Band secretary. That level of confusion in her evidence and on several other crucial matters at issue undermines the reliability of it; c.

Chief Thomas’ evidence was that he was at the Band office regularly and a closure was never brought to his attention either by seeing it or by hearing of it from Mr. Antoine or others; d. Mr. Shepert, was the fisheries manager for the CSTC, and as such was more well placed than most to be made aware of closures by the DFO and he was unaware of any closure; [ 122 ] If Vince Prince’s belief in the state of affairs concerning the closure can be criticized as not being objectively reasonable then it could be said the DFO has a greater duty to ensure compliance than what they exercised in this case.

Although the circumstances are

different from Hussey , the findings of Handrigan, PCJ in that case concerning the DFO’s actions have many similarities to what occurred in this case and as such lead to the conclusion that the DFO did not make sufficient efforts to ensure that those affected were made aware of the closure in light of the stated level of cooperation between the DFO and the CSTC described in the Agreement and the Licence. [ 123 ] The CSTC and the Nak’azdli Indian Band are also not without fault.

They had a duty to ensure individual fishermen were made aware of the status of the Licence or the Amendment given that the activity of those people were well known in the community.

The evidence in this case suggests that at least one or maybe more individuals of the internal bureaucracy of these entities did not treat the dissemination of such important regulatory information such as the Agreement, Licence and Amendment to the very people who could be directly affected as being an important issue. [ 124 ] There also remains the underlying general disdain for the enforcement undertaken by the DFO starting as high up as Chief Thomas and as expressed equally by both Vince Prince and Russel Prince.

Although they all stated they were prepared to comply with the regulatory scheme, they all clearly indicated they did so reluctantly. [ 125 ] If the Accused want to pursue the complexities concerning fisheries management from a political or aboriginal rights perspective, then they have every right to criticize and oppose the DFO’s strategies. [ 126 ] However, if they claim to be prepared to abide by the Agreement, Licence and Amendment, as they do here, they must at least be prepared to participate in the process provided for when it comes to the regulation and enforcement of it, and be cooperative with the fisheries officers in the exercise of their duties and responsibilities in that regard.

Obstruction Allegations [ 127 ] Given the evidence presented, I find the following occurred: a. Russel Prince refused to provide his name to F/O Taylor throughout his interactions with him despite several requests for same; b. F/O Taylor explained to the Accused his understanding of obstruction and the fact that their activities were obstructing his and the other fisheries officers efforts as mandated in the Act; c. The Accused refused to relinquish their nets; d. Vince Prince said he would only relinquish his nets if arrested; e.

Vince Prince later became a conciliatory influence in dealings between Russel Prince and the fisheries officers; f. The Accused were not arrested on Stuart Lake but did agree to accompany the fisheries officers back to Long Island. [ 128 ] As a result of Vince Prince’s later conciliatory attitude in the matter, the Crown invited the Court to enter an acquittal with regard to him in Count 5. [ 129 ] Based on the evidence presented, it is clear the following legal principles apply: a.

Section 51 of the Act permits fisheries officers to seize nets if there are reasonable grounds to believe an offence has occurred; b. Section 61(1) of the Act requires people fishing to provide information including the person who caught fish; c.

Section 62 of the Act prohibits any person from obstructing a fisheries officer carrying out their duties or functions. [ 130 ] Based on the evidence presented and applicable law, I conclude the following: a. The fisheries officers had every legal right under s. 51 to seize the Accuseds’ nets because they had reasonable grounds to believe an offence had occurred. It is not incumbent upon a fishery officer to detect or measure any alleged honest belief of the Accused under s. 78.6; b. The Accused by their own evidence honestly believe they were legally fishing under the Licence.

Under the Licence and s. 61 of the Act , they have a duty to provide information including their name without any necessity for there to be an arrest; c. Although not arrested, the Accused were clearly detained by the fisheries officers and subject to their direction which they complied with in part by returning to Long Island to conclude matters. The fisheries officers prudently concluded that to affect an arrest on Stuart Lake could invite further aggression or violence by the Accused, particularly Russel Prince, and place both the fisheries officers, the Accused, and Vince Prince’s son in danger; d.

Russel Prince clearly obstructed F/O Taylor, as that term is known at law, by first refusing to relinquish his net and secondly by refusing on many occasions to provide his name when asked to do so; e. Vince Prince also obstructed the fisheries officers by refusing to relinquish his net unless the fisheries officers complied with certain conditions to arrest him. He did later become conciliatory with the fisheries officers but never again agreed to allow his net to be seized. Therefore, I am unable to accept the Crown’s invitation to grant an acquittal to Vince Prince on that charge.

DECISION [ 131 ] I find both Accused not guilty on Count 1, 2, 3, 4 and 7 of the Information. [ 132 ] I find Vince Charles Prince guilty of obstructing a fishery officer by preventing the officer from seizing fishing gear as set out in

Count 5. [ 133 ] I find Russel Keith Prince guilty of obstructing a fishery officer by preventing the officer from seizing fishing gear and by refusing to identify himself as set out in Counts 5 and 6. __________________________ M. J. Brecknell Associate Chief Judge of the Provincial Court