Her Majesty the Queen - v. -, 2011 SKPC 2

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 002 Date: July 28, 2011 Information: 24164569 Location: Melfort _____________________________________________________________________________ Between: Her Majesty the Queen - and - Larry Lee, Robert Campeau, Larry Sens and Gerald Campeau Appearing: Inez Cardinal, Q.C. For the Crown Ryan Calder, Court Worker as Agent For Larry Lee Chris Lafontaine, Court Worker as Agent For Robert Campeau Mark Carson For Larry Sens Chris Lafontaine, Court Worker as Agent For Gerald Campeau JUDGMENT B. MORGAN , J Introduction

[ 1 ] Each of Mr. Lee, Mr. Robert Campeau, Mr. Sens and Mr. Gerald Campeau were charged on a joint information with a total of seven counts under The Fisheries Act (Saskatchewan) and/or The Fisheries Regulations made thereunder. At the opening of the trial, each of Mr. Lee and Mr.

Sens entered guilty pleas to some or all of their respective charges, and the trial therefore proceeded on the following counts against the following individuals: Robert Campeau: Count 2 - did on or about the 4 th day of March A.D. 2009, near Carrot River, Saskatchewan possess fish that he knew or ought to have known were taken or obtained contrary to the provisions of the Act or these Regulations and thereby committed an offence contrary to section 91(1)(

a) of The Saskatchewan Fisheries Regulations Reg. 1, made pursuant to The Fisheries Act (Saskatchewan), 1994

Chapter F-16.1 as amended. Gerald Campeau: Count 5 - did on or about the 19 th day of March A.D. 2009, near Carrot River, Saskatchewan, possess fish that he knew or ought to have known were taken or obtained contrary to the provisions of the Act or these Regulations and thereby committed an offence contrary to section 91(1)(

a) of The Saskatchewan Fisheries Regulations , Reg. 1, made pursuant to The Fisheries Act (Saskatchewan), 1994

Chapter F-16.1 as amended. Count 6 - did on or about the 1 st day of March, 2010, near Carrot River, Saskatchewan, aid, abet, counsel or procure the contravention of a provision of this Act and thereby committed an offence contrary to

section 30 of The Fisheries Act (Saskatchewan), 1994

Chapter F- 16.1 as amended. Count 7 - did on or about the 1 st day of March A.D. 2010, near Carrot River, Saskatchewan, possess fish that he knew or ought to have known were taken or obtained contrary to the provisions of the Act or these Regulations and thereby committed an offence contrary to section 91(1)(

a) of The Saskatchewan Fisheries Regulations , Reg. 1, made pursuant to The Fisheries Act (Saskatchewan), 1994

Chapter F-16.1 as amended. [ 2 ] Each of Mr. Robert Campeau and Mr. Gerald Campeau raised an issue respecting the constitutionality of legislation, in addition to advancing defences to the charges. The Crown has agreed that each of Robert Campeau and Gerald Campeau are status Indians who can take fish out of Tobin Lake.

Background [ 3 ] The clearest way to deal with this case is to deal with three separate incidents; the events of March 4, 2009, dealing with Robert Campeau (count 2), the events of March 19, 2009, dealing with Gerald Campeau (count 5), and the events of March 1, 2010, again dealing with Gerald Campeau (counts 6 and 7). I will deal with specific details of the evidence when necessary to resolve issues.

However, to put the matter into context, an overall review of what transpired will be helpful. [ 4 ] As a result of information received, officers of Saskatchewan Environment Resource Management (SERM) were conducting an investigation into the activities of Mr. Larry Lee and Mr. Larry Sens. As part of that investigation, it was determined to use undercover operatives, working in tandem with other officers at SERM.

In order to protect the identities of the undercover officers, in the event they do further work of this nature in Saskatchewan, they will be referred to by their code number. [ 5 ] PR 133 is a conservation officer who has 14 years experience, and has been working in a covert capacity for the last five years. With respect to this matter, on February 27, 2009, he met with other SERM officers at Tobin Lake, Saskatchewan, a lake in the general vicinity of the City of Nipawin.

On that date, PR 133 and another SERM officer, set up their ice shack, which PR 133 referred to as the covert shack, approximately 75 to 100 yards away from where Mr. Larry Lee had his ice fishing shack. The covert shack was equipped and situated such that officers of SERM would be able to take photographs from that shack of activities at the Lee shack.

[ 6 ] The general plan was for PR 133 to make the acquaintance of Mr. Lee, as well as any other individuals who might come to light during the investigation, posing as an individual who was not too concerned in complying with regulations respecting fishing. For obvious reasons, an undercover officer who could establish a less than savoury reputation would, it was hoped by the SERM officers, be more likely to impress the targets of this investigation. [ 7 ] The general allegation that was being made against Larry Lee and Larry Sens was that they were using Indians to take certain fish from Tobin Lake.

These fish would fall into what was called the “slot size”, being of a length between 75 centimetres and 115 centimetres. Those fish were not to be taken from the lake by any angler, the idea being that such fish, if caught and then returned to the lake, would grow to a larger “trophy” size. However, Indians are allowed to take such fish under their general Treaty right to provide for their families. Particulars of this situation are dealt with in more detail below in the evidence of Officer Stephen Dobko. [ 8 ] Against that general background, I will now deal with the specific charges.

March 4, 2009 - Robert Campeau Crown Evidence PR 133 [ 9 ] It wasn’t until March 4, 2009, that PR 133 and a fellow officer, PR 137, were successful in having any contact with Mr. Larry Lee. On that date, at approximately 8:40 a.m., after setting up their ice fishing apparatus, Mr. Larry Lee and Mr. Robert Campeau arrived. [ 10 ] PR 133 went over to meet Mr. Lee and Mr. Campeau, introducing himself by his first name. (There is no issue with respect of the identity of either Mr.

Robert Campeau or Gerald Campeau.) After doing so, establishing at least a preliminary relationship, PR 133 returned to the covert shack, from where he noted that Larry Lee and Robert Campeau set up four “tip-ups”, an apparatus designed to tip-up the rod or the stick the line is secured to if a fish bites the hook. PR 133 described these tip-ups as being located roughly in a diamond shape around Mr. Lee’s shack, estimating the distance out from the shack to be 20 or 30 yards. [ 11 ] The general procedure was that Mr.

Larry Lee would drill a hole with an auger, and that one or the other or sometimes both, would set and bait the hook. The bait being used was a small fish impaled on a treble hook, attached to a line or a rod, and put through the ice hole into the water in such a position that it appeared the fish was close to the bottom of the lake.

The reason the shack was located where it was, an area of the lake called “the flats”, was because part of the process allowed the fishermen to peer through the hole and see the bottom, approximately 10 or 12 feet deep at that location, to better enable them to place the baited fish precisely where they wanted it. [ 12 ] Approximately one hour after Mr. Lee and Mr. Campeau had arrived, PR 133 looked out the window of the covert shack and saw the tip-up apparatus at the third hole deflect downwards, signifying a strike. At that point, each of Larry Lee and Robert Campeau were back in their shack.

In an effort to curry favour, PR 133 ran over to Larry Lee’s shack to tell him that there was some activity on one of the lines, following which he returned to the covert shack. [ 13 ] Mr. Lee thanked PR 133, and went out of the shack to that location, and reeled in a fish. He used a gaff to pull the fish out of the hole, and PR 133 observed him lay a Northern Pike on the ice adjacent to the hole. Robert Campeau then came over, at which point Larry Lee said to Robert Campeau, “I’m going to take that one home”. PR 133 then walked over to observe the fish, and had some general discussion.

In an effort to ascertain the size of the fish, to see if it would fit within the “slot size”, although obviously not in a position, as an undercover officer, to pull out a tape measure, PR 133 picked up the fish, put the tail on the snow, and held the fish against his body, noting that the head came just above his belt line. After making some complimentary comments about the size of the fish, referring to it as “a dandy”, PR 133 went back to his covert ice shack, and used a stick on which he had previously measured out the “slot size” to ascertain the length of the fish he had just been holding.

This stick was simply a piece of wood 125 centimetres long, on which he had previously marked, with the aid of a tape measure, a mark at 75 centimetres, and another mark at 115 centimetres. He referred to this as a quick measuring device used to see whether or not the suspect fish would be within the slot size. He therefore

measured against his body where the tip of the head of the fish had been against his body when he measured it, and estimated a size of 110 centimetres, which would constitute a “slot sized” fish. This measuring stick became Exhibit P-1. [ 14 ] The officer testified that he went back and spoke with Robert Campeau at approximately 11:45 a.m., in the nature of a friendly conversation, although in furtherance of the investigation. During that conversation, PR 133 advised Robert Campeau, in order to establish his desired unsavoury character, that he himself had caught a 20 pound “jack” and had to sneak it home.

The undercover officer testified that Robert Campeau said that he also had an encounter with “that guy” which PR 133 thought referred to a local SERM officer, and that Robert Campeau said: That guy told me I couldn’t take any big fish home. I said look at the colour of my fucking skin, I can take as many fish home as I want. [ 15 ] When PR 133 feigned surprise that a SERM officer would be questioning Mr. Campeau, Mr. Campeau allegedly said: Yeh, fuck him. If my friends want to take fish home, go ahead. I don’t give a fuck. They can say I caught them. [ 16 ] Shortly after that, PR 137 came out, at which point Mr.

Campeau, who at that point had only been referred to as “Robert” provided his last name, “Campeau”. [ 17 ] At 12:20 p.m. that date, the officers noted another tip-up, and from inside the covert shack, PR 133 said he noted both Larry Lee and Robert Campeau exit the Lee shack, and that Mr. Lee walked to the tip-up and reeled in a large fish; PR 133 referred to it as an “extremely large Pike”. Robert Campeau held it up, and the fish was later weighed and found to be 24 pounds.

PR 133 testified that this second fish, although he never actually measured it, was clearly over the slot size. [ 18 ] After that fish had been killed, PR 137 went over to see that fish, and shortly thereafter, Robert Campeau and Larry Lee packed up and left the ice fishing shack, taking the fish they had caught with them. [ 19 ] PR 133 tendered seventeen photographs, which were later collectively marked as Exhibit P-2, all of which provide confirmation of what the officer testified to respecting the events of March 4, 2009.

PR 137 [ 20 ] PR 137 was the other undercover operative, and he confirmed that he took the photos which became P-2. As the photographer, he remained in the shack most of the time, but he did have some brief interaction with Mr. Campeau, and he was present when Mr. Campeau provided his last name to PR 133. He testified as to what he observed PR 133 doing, which confirmed the basic observations that PR 133 had previously testified to. In addition, he provided evidence as to what the photos depicted, again confirming what PR 133 had said.

He referred to the first fish as the “slot sized” fish, depicted in photos 4 through 11 of Exhibit P-2, and the second fish, depicted in photos 12 through 17, as being “noticeably larger”. Officer Stephen Dobko [ 21 ] Officer Dobko has been a SERM officer for 23 years, and has been stationed in Nipawin since 1995. He explained, in greater detail, the history of Tobin Lake, and the background of the creation of the prohibition on keeping “slot sized” fish. [ 22 ] Tobin Lake, created when a dam was erected, is managed as a “trophy fishery”. Wishing to enhance the reputation that

[ 22 ] Tobin Lake, created when a dam was erected, is managed as a “trophy fishery”. Wishing to enhance the reputation that Tobin Lake was starting to develop as a great place to fish to catch large Pike, which would of course increase tourism and thus aid local businesses, a fishery advisory committee was established. In 1996, that committee came up with the idea to establish a slot size. A trophy fish being a large fish, the plan was to ensure that as many fish as possible could grow to that size.

Thus, anyone fishing on Tobin Lake was required to measure any fish caught. (There was also a similar slot size for Walleye, but as none of the fish in issue in this case were Walleye, that matter will not be discussed further.) At the relevant time, the Regulations were such that barbless hooks were to be used in the lake, they were better to protect the mouths of fish that were caught and might be returned to the water. If a Pike measured under 75 centimetres, the angler could keep up to four of them. If the fish measured over 115 centimetres, the angler could keep one.

However, an angler could not keep any Pike between 75 and115 centimetres; such a fish was to be returned to the water. [ 23 ] The background for the investigation was that tips had been received that non-Indian anglers would fish with Indian anglers, and if a compliance check found any slot sized fish had been taken, the Indian angler would claim the fish as his or hers. Indians were not subject to the Regulations respecting the slot size, as they had Treaty rights allowing them to fish for food.

In 2009, Larry Lee and Larry Sens were targeted as individuals who might have been violating the rules respecting these slot sized fish. That investigation, of course, ultimately led to the charges that are now before the Court. Defence Evidence Robert Campeau [ 24 ] Robert Campeau testified that he is from Yellow Quill First Nations and that he has “been Treaty all my life”. He also testified that he believed Mr. Larry Lee was a Metis and that he had a right to fish with Mr. Lee on March 4, 2009. He testified that he was fishing for food, and that he was with Mr.

Lee, on March 4, 2009. [ 25 ] He said that he told Mr. Lee, after the former’s initial brief meeting with PR 133 that day, that “this guy sounds like an undercover”, only to be reassured by Mr. Lee that the latter had seen PR 133 fishing out there many times. [ 26 ] In cross-examination, he denied that Mr. Lee said that he was going to take the first fish caught home; rather, he says, Mr. Lee asked Mr. Campeau if he wanted it, or if it should be put back, to which Mr. Campeau replied that he would take it home. At that point, he testified, PR 133 wasn’t even around.

Further, he said that PR 133 never picked up that fish. He said that it was Mr. Lee who caught that first fish, and that once the two of them were in the shack, Mr. Lee was talking of that fish being within the slot size, a concern that did not matter to Mr. Campeau, he said, as he had the right to take any size fish he wanted, as he was fishing to feed his family. Mr.

Lee, he said, measured that first fish on the ice, and determined that it was within the slot size. [ 27 ] He was adamant that he never had any conversations with PR 133 of the type that was testified to, their discussions that day being limited to the casual conversations as to employment, etc., that PR 133 had described. Larry Lee [ 28 ] Mr. Lee testified that he is Aboriginal. While acknowledging that he was fishing with Mr. Campeau, on March 4, 2009, he stated that he did not remember measuring any fish caught that day, stating that he didn’t think he did. On that date, he was teaching Mr.

Campeau how to ice fish. [ 29 ] In cross-examination, he stated that they were only on the lake for the purposes of getting fish for Mr. Campeau. He stated that he was aware of the slot size, but that he did not have a conversation with Mr. Campeau about that issue, respecting the first fish. To him, it simply didn’t matter; any fish caught that day were for Robert Campeau, and as Robert Campeau was an Indian, he could take it, regardless of its size. Murray Koob

[ 30 ] Mr. Koob was and is employed with the Ministry of the Environment, Fish and Wildlife Branch, in Prince Albert, Saskatchewan. He has familiarity with the discussions that led to the implementation of the original slot size in 1996, and the increase to that size of 2005. In essence, he reported that studies had shown that the spawning or brood stock, the larger size fish, were decreasing in number. In order to sustain the stock, those fish needed protection, hence the increase in the slot size. [ 31 ] Of more import to the defence was his evidence respecting the consultative process that was engaged in.

He testified that the process is “intended to deal with any issues that are affecting First Nations hunting and fishing rights, the right to gather food for sustenance.” On that issue of consultation, he said there was no consultation done because there was no change to Indian fishing rights; rather, the rules were designed to deal with fish being taken by sport anglers. [ 32 ] He confirmed, in cross-examination, that would be the case as well if the Ministry was dealing with Metis people with established Metis rights. [ 33 ] By consent, a document entitled “The Government of Saskatchewan Guidelines for Consultation with First Nations and Metis People: A guide for Decision Makers”, dated May of 2006, was tendered as Exhibit D-3.

Argument and Analysis [ 34 ] Mr. Lafontaine, arguing on behalf of Mr. Robert Campeau, takes the position that Robert Campeau, being an Indian, has a Treaty right to fish for subsistence. He argues that Larry Lee, being non-status, or Metis, has the same right. He also argues that there is a question as to whether or not the “first fish” was in fact within the slot size, arguing that the method employed by PR 133 in measuring that fish is suspect as to accuracy. I will deal with the constitutional issue later. [ 35 ] Ms.

Cardinal, on behalf of the Crown, argues that this is a fact based matter; if I accept the evidence of the two SERM officers, the case is proven. She also argues that there really is no clear evidence on the status of Mr. Lee. [ 36 ] The first question to answer is whether or not the “first fish” was in fact within the slot size. The second fish, being larger than the slot size, is not in issue here, and to avoid confusion, I will refer to “the fish” as the only one in issue here, that being the first fish that was caught that day, and measured by PR 133 in the way referred to earlier. [ 37 ] Mr.

Lafontaine spent a considerable amount of time during cross-examination on the mechanics of how the fish was measured, and in questioning of the officer respecting his attire in Court, basically questioning the methodology of the measurement. Mr.

Lafontaine also took issue with the precise height of the boots the officer wore on March 4, and how that might affect the measurement made that day. [ 38 ] What I do accept from all of this, and what I do accept as a valid concern, is whether or not the measurement was accurate enough to satisfy me that an essential element of the charge had been made out, that being that the fish was in fact within the slot size.

Put simply, the fish itself was of a certain length, whatever that length may be; however, that does not mean that the length of the fish testified to by the officer was in fact the actual length of the fish. There is a certain amount of built-in error in how that fish was measured. [ 39 ] First, the officer was using a stick to make the measurement, a stick on which he had placed, with the use of a tape measure, marks at 75 centimetres and at 115 centimetres.

Any error there, I am satisfied, would be negligible at best. [ 40 ] Second, in measuring the fish, he was basically using his own body as a measuring device. As indicated earlier, as he was working in an undercover capacity, he had to have been acting as surreptitiously as possible, not a situation that would allow him to carefully measure “the distance from the tip of the snout with the jaw closed to the tip of the tail with the lobes compressed...” as

required in the Regulations . In simple terms, what he did was haul the fish up, hold it against his body, and then estimate where the snout of the fish came to on his body. He could not have spent a lot of time ensuring this measurement was as precise as would be required, as that type of scrutiny, to put it simply, would blow his cover.

Equally, then, he could not have ensured the tail was properly positioned. [ 41 ] Third, having now obtained what can best be described as a visual estimate, he then took that estimate into the covert shack, at that location transferring this visual estimate of where the fish snout was in relation to his body from earlier, to what he then estimated to be the same spot.

He then used a stick to transfer that estimate to the measuring stick. [ 42 ] In cross-examination, he said that “approximately” meant “around”, and then stated that “could be around 111 or 112 centimetres, give or take two centimetres either way”. [ 43 ] Although he testified that the level of the snow or ice was the same at both measuring locations, any slight variance in that would as well introduce error. [ 44 ] The distance between 110 centimetres and 115 centimetres is the width of a small Post-It note, or the length of a large paperclip. The measuring was done by compounding estimates upon estimates.

Had the officer been dealing with a fish of a length at the mid-point of the slot size, I would be more inclined to accept that an error of five or six centimetres was inconsequential. In this case, the difference between a slot sized fish, and a fish that exceeded the slot size, is marginal at best. I am not satisfied that, in fact, the fish was within the prohibited size. [ 45 ] If that fish was in fact a smidgen over 115 centimetres, it would be outside the slot size, and if so, this charge cannot be made out, irrespective of who is or is not an Indian, or Metis. Applying the most favourable

interpretation to the Crown of what the officer said as to his range of error, that being one or two centimetres either way from his estimate of 110 centimetres, as opposed to one or two centimetres from 112 centimetres, still means the officer is stating that the true measurement could be 112 centimetres. That means a variance of four centimetres, if one accepts that a fish of a length of 116 centimetres was legitimately able to be harvested. Four centimetres is just over one and one-half inches.

On the strength of the officer’s evidence, I find that the Crown has not established an essential element of the charge, that being that the fish was within the slot size and was therefore a fish “taken or obtained contrary to the provisions of the Act or these Regulations ”, to use the wording of s. 91(1)(

a) of the relevant Regulation . [ 46 ] That, however, does not end this matter. I am to look at all the evidence, and as the defence elected to call evidence, I must look at that evidence as well. Having done so, although there are some strong indications that the fish may have been within the slot size, for the reasons that follow, I remain unconvinced that it in fact was. [ 47 ] Mr. Robert Campeau had stated that he did not observe anyone measuring fish that day, which would, one would assume, include Mr. Larry Lee. In cross-examination, he testified that Mr.

Lee had told him that the latter thought that fish was within the slot size, and that Mr. Campeau told him he did not think that was the case, and he confirmed on a couple of occasions that Mr. Lee had said it was a slot sized fish. He later said that Mr. Lee did in fact measure the fish, with a tape measure, “...but it was underneath, he said. I don’t know what the hell is underneath”. [ 48 ] That latter comment, I am satisfied, refers to Mr.

Campeau’s constant insistence that he did not care a whit about the slot size; he was firmly of the view that he, as an Indian, could take any fish off of Tobin Lake that he wished, for his own use. He believed, rightly or wrongly, that Mr. Lee was Metis, and could do the same thing. One could argue this demonstrates wilful blindness, but even if it does, that is not an issue I have to examine until I am satisfied that the fish was within the prohibited range. Mr. Campeau testified that he took both the fish home and ate them, rendering any post March 4 measurement impossible. [ 49 ] Mr.

Lee, when asked if he had an opportunity to measure that fish, replied that he didn’t remember, and that he didn’t think he did. He denied having any conversation with Mr. Campeau as to slot size, although he did say later in cross-examination that, “...one definitely was a slot size, one may not have been”. [ 50 ] The evidence of each of Mr. Campeau and Mr. Lee raises credibility issues, as each of them generally took exception to

practically anything the undercover SERM officer said. I need not cover that disputed evidence as I am satisfied, after observing each of Mr. Lee and Mr. Campeau testify, that neither one of them were paying much attention to what was going on March 4, 2009. The Information was sworn March 10, 2010, and the trial started in November of 2010. Each witness made references as to having difficulty remembering. That is credible, notwithstanding that Mr. Campeau and Mr. Lee only went ice fishing twice, and one might think that fact alone would make it more memorable.

However, what we really have here is a couple of buddies going fishing; there was nothing memorable at the time that would stand out for either of them. [ 51 ] Further, although there is evidence that Mr. Lee did measure the fish, and that he said that one of these fish were “definitely” within the slot size, I still don’t know what the size of that fish was. I am still faced with a case where, on any account, that fish was close to being legal. As to whether or not it was in fact measured by Mr.

Lee, which presumably would give him grounds for his belief, the evidence is contradictory, and neither SERM officer, each of whom were involved in an undercover operation in which the size of the fish was a central element, mentioned anything about this alleged measuring. [ 52 ] Despite the defence evidence, I remain unconvinced that the fish was within the prohibited range. I dismiss count 2 as it pertains to Robert Campeau. March 19, 2009 - Gerald Campeau (count 5) Crown Evidence PR 133 [ 53 ] PR 133 testified that shortly after 8:00 a.m., he and PR 137 were at “the flats” when Mr. Larry Lee, Mr.

Gerald Campeau, another male individual referred to as Maurice Lupien (ph), and a woman, presumably Mr. Lupien’s wife, came out to the Lee shack. At approximately noon that day, PR 133 saw Gerald Campeau outside the shack, and went over to reintroduce himself. Mr. Gerald Campeau said that he enjoyed the fish from the night earlier (the same group had been fishing the night before, and PR 133 had taken that group some fish that PR 133 had cooked earlier that evening). [ 54 ] At that point, Mr. Larry Lee came out, and pointed towards what he referred to as the Larry Sens shack, approximately 450 yards to the south.

PR 133 assumed this was in fact Larry Sens’ shack, the only information he had previously been provided with being that Larry Sens had a red “Jimmy” automobile, which could be seen outside that shack. Mr. Lee drove across the ice over to what was (presumably) Larry Sens’ shack, returning approximately 45 minutes later. When Larry Lee returned, PR 133 exited the covert shack, where he had been, and heard Mr. Larry Lee say, as he exited the vehicle, and met with Mr. Lupien and Gerald Campeau, that: When I was over there, he caught a slot size. I told him I would take it home. [ 55 ] At that point, Mr.

Lupien jumped into the back of the truck, and weighed what would have been that fish. PR 133 wandered over, and some general conversation went on. During the course of the day, that group had at least nine tip-ups in operation, and to PR 133's recollection, the group left the area just before dark. [ 56 ] At about the time Mr. Lee returned from what was presumed to be the Sens shack, and in furtherance of the investigation and the ongoing ruse, PR 137 called SERM Officer Dobko, to have him go over to that shack to make a positive identification.

The undercover operatives noted that Officer Dobko appeared on the flats at about 2:45 p.m., and they were able to observe, through binoculars, some interaction between Mr. Dobko and some individuals at that shack. As Officer Dobko checked other individuals who were in the area fishing, as he sort of worked his way back towards the covert shack, PR 133, who had an extra tip-up in operation, made a show of cutting the line, and pounding on the door of his covert shack, indicating to his (allegedly) equally unsavoury friend to reel in his line.

This play acting was designed to hopefully be observed by the Larry Lee group, further cementing the idea that the undercover officers were in fact fellow fishermen who were prepared to bend the rules, if not break them outright.

Officer Stephen Dobko [ 57 ] Officer Dobko testified that he identified Mr. Sens, whom he had known for years, at the shack referred to by PR 133, checked his fishing licence, and noted a 70 centimetre Pike that had been taken. He noted that the hooks being used were barbed, and ticketed Mr. Sens for not using barbless hooks. He noted what Mr. Sens and his companion, Starr Sens, were wearing, these being the only occupants of the shack, and left after about thirty or forty minutes.

The only fish he observed was the 70 centimetre Pike. [ 58 ] As this officer was working his way back to the Lee shack, he noted Larry Lee, who he also had known for many years, drive over to the Sens shack. Prior to driving in that direction, Officer Dobko noted Mr. Lee pull up his fishing lines, and take a fish out of the back of his truck and lay it outside the Lee shack. [ 59 ] While at the Lee shack, Officer Dobko determined that Maurice Lupien and Georgina Nelson, who were present with Gerald Campeau, were both in compliance.

Gerald Campeau produced his Treaty card, and the officer noted, to the left of the shack, a dead Pike, which he measured at 84 centimetres. I find that this is the same fish that Mr. Lee took and placed by the shack, and is the same fish he took from the Sens shack. The officer testified that Mr. Gerald Campeau told him that he had caught it, and Mr. Campeau was claiming ownership of it (as the officer noted, this was a slot sized fish that a licenced angler would be prohibited from keeping; as Mr. Campeau was an Indian, he could possess it).

The officer did note that this fish had a hook and leader inside the gullet, and he found it “highly unusual” that Mr. Gerald Campeau, who was claiming ownership of this fish, did not know of that. Mr. Campeau confirmed with the officer that this was the only fish caught by the group that day. The officer then “checked” the covert shack, updating his colleagues as to what he had found out as a result of his visits with each of the Sens group and the Lee group. PR 137 [ 60 ] This officer, who was conducting surveillance from the covert shack that day, was watching through binoculars as Mr. Sens, while Mr.

Lee was present at the Sens shack the first time, picked up a Northern Pike, and hit it on the head with a hatchet. Mr. Lee picked up that fish, put it in the back of the truck he was driving, and returned to join the group at his shack. The officer was certain that the fish that Mr. Sens had struck with a hatchet, and the fish that went into the back of the truck Mr. Lee was using, was one and the same fish, a Pike. [ 61 ] Knowing it was necessary to confirm who Larry Sens was, and the size of the fish, the call was placed to Officer Dobko to “check” the shacks on the ice that day.

After Officer Dobko had left the covert shack, Mr. Lee came over and asked the occupants if “our friend got you for anything”. Mr. Lee mentioned that his friend, referring to Mr. Sens, had been fined $90.00 for using a barbed hook. [ 62 ] Exhibits P-3 and P-4 were photographs that this officer took that day. Defence Evidence Larry Lee [ 63 ] Mr. Lee stated that Larry Sens gave him a fish that day but that neither of them measured it. He then said that Mr. Sens’ wife gave him a fish, that Mr.

Lupien put that fish in the back of his truck, and weighed it, and that he stayed in his fishing shack, and went to visit Mr. Sens. He thought there had been other fish caught at the Lee shack that day. He also testified that he knew Mr. Sens was not Indian. [ 64 ] When asked if he saw Officer Dobko go to his shack, he said that he did, but that he did not see Officer Dobko measure any fish at the Lee shack as he was visiting at the Sens shack at the time.

Argument and Analysis [ 65 ] Ms. Cardinal argues, on behalf of the Crown, that this case turns on the facts; if I accept the Crown evidence, the case is proven. Mr. Lafontaine argues, on behalf of the defence, that all of the Crown evidence is suspect, and that for various reasons, I should decline to accept the evidence of those witnesses. [ 66 ] The evidence of Mr. Lee on this issue is of little value. During cross-examination, it was clear that he had little recall of anything that went on that day.

When asked why he would take a fish from Larry Sens in the first place, he said it was because they had more, and he didn’t think it was within the slot size. All in all, I cannot place much reliance on what he said, as it was clear that he was lacking recall of specific things. As such, I found his evidence to be unreliable. [ 67 ] Although PR 133 was not sure what happened to the fish after it was weighed, he did say during cross-examination that it was either left in the truck, or placed by the Lee shack. He repeatedly made clear during cross-examination that he knew this was a slot sized Pike because Mr.

Lee said it was, and because Officer Dobko measured it. Coupling this evidence with what Officer Dobko said he saw Mr. Lee do with the fish leads me to conclude the fish Officer Dobko measured was the same fish Mr. Lee got from the Sens shack. [ 68 ] Much of this aspect of the case hinges on the conversation between Officer Dobko, and Gerald Campeau, respecting ownership of the 84 centimetre Pike found outside the Lee shack. A voir dire was held respecting some statements made by Gerald Campeau, statements that I ruled were voluntary.

Officer Dobko’s evidence on the voir dire was applied to the trial proper. [ 69 ] This conversation, according to Officer Dobko, lasted about a minute or so. I accept Officer Dobko’s evidence as to what was said during that conversation, and what he did at the shack that day. He was clear and definite. He said that he asked who caught the fish, and he said Gerald Campeau said that he had caught it. I accept the evidence of Officer Dobko that he measured that fish, and found it to be 84 centimetres, which was within the slot size. Thus, Gerald Campeau could keep that fish, if he caught it.

However, I find that he did not catch it. Officer Dobko noted a hook and leader inside the mouth of that fish, and he asked Gerald Campeau if he knew of that, to which Mr. Campeau replied that he did not. I cannot accept that an individual who caught a fish could not notice such an apparatus inside the mouth of that fish. Further, of course, I am fully satisfied that this was the fish that had made its way from Larry Sens, to Larry Lee, to outside the shack, where Officer Dobko measured it.

This fish was not caught by Gerald Campeau. [ 70 ] On all the evidence, I find the fish referred to in the conversation was in fact the same fish that Larry Lee brought back from the Sens shack. I conclude that Gerald Campeau knew that, as he was present when the fish was returned to the Lee shack, and he knew that fish was within the slot size, as he was present when Office Dobko measured it. If in fact this was not a slot sized fish, there would have been no reason for anyone at the Sens shack to give the fish to Mr. Lee to take it off the lake; whoever caught it could have done so legally.

However, as it was a slot sized fish, neither Mr. nor Mrs. Sens could keep it. I find that Gerald Campeau knew that fish was acquired contrary to the Act or the Regulations . This count has been established beyond a reasonable doubt. I find Gerald Campeau guilty on count 5. March 1, 2010 - Gerald Campeau (count 6) March 1, 2010 - Gerald Campeau (count 7) Crown Evidence PR 133 [ 71 ] The next matter of any significance occurred on March 28, 2009. The two undercover officers were fishing at the Larry Lee shack with Mr. Lee and another individual, assumed to be Mr. Lee’s wife.

That individual caught a fish, to which PR 133 noted that all he ever caught were red zone Pike, red zone being another name for slot sized fish. Larry Lee replied, “if you want we can take a fish off for you”. This prompted PR 133 to respond in a positive fashion, to which Mr. Lee said “bring it over, she can take it off for you”. The point of all of this was that this was an indication that Mr. Lee would arrange to have a “slot sized” fish taken off the lake by someone on behalf of Mr. Lee, undoubtedly the woman who was present, assumed to be his wife, and that the officer could pick it up at

the Lee residence sometime later. [ 72 ] As the ice fishing season was drawing to a close, not a lot happened until the next season. On March 1, 2010, having received information that Mr. Lee had his ice shack back up, the undercover operation swung into action again. The officers set up a portable shack, and set out seven different lines. In the distance, they could observe Mr. Lee and at least one other individual, assumed to be Gerald Campeau. That group had nine tip-ups in the water.

PR 133 stated that Gerald Campeau caught one large Pike, that Larry Lee helped to gaff it, and a third individual brought the fish in. [ 73 ] At 5:50 p.m. that day, PR 137, fishing from their location, caught a Northern Pike that measured 102 centimetres, a size of fish well within the slot size. The officers then put a leader on the fish, placed it back into the hole (secured, of course) such that it couldn’t swim away, in order to keep it alive, and determined to ask Mr. Lee, who had previously said he could assist in getting slot sized fish off the lake, if he could assist him.

Accordingly, PR 133 went over to where the other party was, including Larry Lee, and asked whether or not they could assist in taking a slot sized fish off. Mr. Lee said: Oh well, I can’t, but one of these guys would take a fish off for you ... hey Gerald, would you take a fish off for him? [ 74 ] The “Gerald” whom the officer testified was Gerald Campeau, stated, “sure, no problem”. The officer testified that was great, that he would go and get the fish, which he did. The officer also testified that he told Gerald Campeau that it was a 102 centimetre fish, and he said that Mr.

Campeau did not respond to that. [ 75 ] At this time, the other individual present, in addition to Larry Lee, Gerald Campeau, and the undercover officer, was an unknown male who was never charged with this matter. [ 76 ] Accordingly, the undercover officer went back to the shack, picked up the fish, and headed back towards the Larry Lee shack. His trips back and forth between the shacks were on a snowmobile, as it was quite some distance. [ 77 ] As the officer came within about 20 yards of Mr. Lee’s shack, the unknown male exited the shack, and pointed towards Larry Lee’s vehicle. Mr.

Lee came out of the shack, pointed to the vehicle as well, and told PR 133 to put the fish in the back of the Lee vehicle, so they wouldn’t have to carry it when they were done fishing. PR 133 did that, then headed back to the temporary shack he had with the other undercover officer, packed up, and headed towards an area called “the landing”, being an area where individuals ice fishing on the lake sometimes leave their vehicles. [ 78 ] At approximately 7:00 p.m. that day, Larry Lee and Gerald Campeau drove up in a vehicle, and told the undercover officers that they could pick up the fish at the resort.

The two undercover officers followed the Lee vehicle to the cabin Mr. Lee was using, located at 1104 Birch Road, Tobin Lake, at which point PR 133 walked to the door and was invited in by Larry Lee. Gerald Campeau was at that time sitting at the kitchen table. [ 79 ] Mr. Lee told the undercover officer that the fish was where he had left it, that is, in the back of the truck, and the officer thanked the two individuals. He went to the truck, and found the fish in the exact same spot that he had placed it earlier.

He identified the fish as it had a marking where the officers had previously put the leader in order to hold the fish under water, picked up the fish, and took it to his truck. From there, he returned to the Nipawin SERM office, arriving at about 10:00 p.m., where he went to a storage shed to measure it, with Officer Dobko.

It was photographed, and kept by Officer Dobko in frozen storage, in case it was needed for evidentiary purposes. [ 80 ] The fish measured just under 102 centimetres, the slight difference being according to the officer, that it may have dried out or frozen somewhat in the interim. [ 81 ] In cross-examination, PR 133 denied any suggestion that he misheard what was said, or that someone other than Gerald Campeau said that. He reiterated that, when he met Larry Lee and Gerald Campeau at the landing, Mr. Lee was driving, and Mr.

Campeau was the passenger. While acknowledging that fish remained in the officer’s truck for an hour after it was picked up from Mr. Lee, and before it was measured, he was firm that he knew it was the same fish as the officers had cut a notch out of the bottom of the mouth. This was done to attach the leader, so the fish, between the time it was caught and the time it was put in the back of the Lee truck, could be kept alive in the water.

PR 137 [ 82 ] This officer’s evidence corroborated what PR 133 said, and he confirmed that he was the one who caught the slot sized fish that was given to the Lee party to take off the lake.

He said that he made the mark on the fish, and, in his words, tethered it in the water after catching it. [ 83 ] He testified that he was with PR 133 throughout that evening, and that he and PR 133 followed the Lee vehicle from the landing to the Lee residence, where PR 133 was inside for a short time, before going to the back of the Lee truck and taking the fish that PR 137 had caught earlier. [ 84 ] In cross-examination, PR 137 explained how he measured the fish, and denied any suggestion that the fish he caught, and the fish PR 133 took out of the Lee truck, were not one and the same fish.

Defence Evidence Larry Lee [ 85 ] Mr. Lee stated that he and Gerald Campeau are cousins, that his mother was what he referred to as a half-breed, and that he is Aboriginal. He said he didn’t recall telling PR 133 on March 28, 2009, that he could help get a fish off the lake. He said “ I can’t say I remember him saying that to me”, when queried as to the conversations of March 1, 2010, and he stated that Gerald Campeau never said anything. [ 86 ] In cross-examination, he said he did say something like “Hey, Gerald, could you take a fish off”, and it was possible that Gerald Campeau could have said “no problem”.

In short, he confirmed everything occurred mainly as PR 133 testified. [ 87 ] He also said that he was thinking that he could help PR 133 through his wife, as she was a Treaty Indian. He stated that he knew that he could not take fish off the lake for non-Aboriginal people. Argument and Analysis [ 88 ] As in the earlier charge, the Crown asserts this charge is decided on the facts, and the defence argues that the defence evidence is unreliable. Mr. Lafontaine also argues that Mr. Gerald Campeau did not say anything, and points out that he had nothing to do with the fish.

He argues that mere presence is not sufficient to ground liability. [ 89 ] I accept the accuracy and reliability of what PR 133 and PR 137 testified to. I find as a fact that PR 133 asked for assistance from Mr. Lee, who referred the question to Mr. Gerald Campeau, who stated that it would be “no problem”.

[90] As for Mr. Lee’s status, I find that he has no status that has any bearing on this trial. If he truly believed that he had status totake fish off the lake himself, and he wanted to help PR 133, there would have been no need for him to look to Mr. Gerald Campeau, orhis wife, as conduits. [91] Count 6 charges Mr. Gerald Campeau with aiding, abetting, counselling or procuring the contravention of a provision of theAct, thereby committing an offence under s. 30 of the Act.

Section 13 of the Act sets out various prohibitions as to who may“acquire...possess...market, carry or transport” fish. I am satisfied beyond any doubt that Mr. Gerald Campeau knew that the fish he wasbeing asked to take off the lake had been illegally acquired. He assisted for the purpose of aiding in the contravention of a provision ofthe Act or Regulations. I find him guilty on count 6. [92] Count 7 charges Mr. Gerald Campeau with being in possession of a fish that he knew or ought to have known was taken orobtained contrary to the provision of the Act or the Regulations.

He knew that the fish he was being asked to take off the lake had beenillegally acquired. Although he may not have physically put his hands on that fish, he had possession of it as that term is defined in s. 5of the Act. I find him guilty on count 7. [93] In all the charges respecting Mr. Gerald Campeau, I am satisfied that he himself had the right to take the fish, as he is a TreatyIndian and has the right to fish for his own subsistence, and for that of his family. However, his actions on the dates that I have foundhim guilty had nothing to do with that right.

Constitutional Issue [94] A Notice was provided by Ka-Pa-Chee Training Centre, making application on behalf of each of Mr. Robert Campeau, Mr.Gerald Campeau, and Mr. Larry Lee. In light of the fact that the charge against Mr. Robert Campeau has been dismissed, and that Mr.Larry Lee entered a guilty plea, I will deal with this application insofar as it relates to Mr. Gerald Campeau only. For ease of reference, Iwill refer to him as Mr. Campeau. [95] The application stated that Mr.

Campeau sought a stay of proceedings and challenged the applicability of various sections ofThe Fisheries Act (Saskatchewan) (the Act) as well as The Fisheries Regulations (the Regulations) “because the

section 25 right wasinfringed because there was no discharging of the duty to consult and accommodate as prescribed by law”. It goes on to state that Mr.Campeau is a half-breed, and the paragraphs following that detail how Mr. Campeau has certain rights as an Aboriginal person. TheNotice states that s. 91(1)(

a) and s. 13(3) of the Act [these sections are in the Regulations] cannot apply. The Notice goes on to state that,in the alternative, the legislative scheme will be challenged on two grounds. The first is that Mr. Campeau has a right to hunt, fish, andtrap, and the second is that the Crown failed to meet its obligation and duty to consult. The Notice states that the material facts related tothis application would be established at trial. [96] Much of the evidence brought out at trial by the defence related to the status of Larry Lee. However, the status of Larry Leeis irrelevant to the actions of Mr.

Campeau. [97] There is no question that Mr. Campeau has the right to fish for food for himself (see R. v. Myran, (SCC),[1976] 2 S.C.R. 137, at pages 141-142). The Crown does not contest that. [98] However, Mr. Campeau was not fishing for food for himself. The evidence is clear that he was assisting another person totake fish off the lake. He was using his Treaty right to fish to assist another, to, as referred to in the Crown brief, “shield the illegalactivities of others”. This he cannot do.

Thus, the factual basis for the argument has not been established. [99] As to the duty to consult, the Crown does not take issue with that either. However, the duty to consult only arises if theproposed action (here, the designation of the slot size) would impact on the Treaty rights. As the defence witness Mr. Murray Koobmade clear, the “issue was specific to the licenced sport fishermen”, and the change “wasn’t intended to impact whatsoever” on TreatyIndians. How could it, as Indians are entitled to catch any size fish on Tobin Lake, slot sized or not, for feeding themselves or theirfamilies? Again, as Mr.

Campeau’s activities had nothing to do with feeding himself or his family, the factual basis for the argumenthas not been established.

[ 100 ] For these reasons, the application for a stay of proceedings, and all relief claimed in the Notice is dismissed. Dated at Melfort, Saskatchewan, this 28 th day of July, 2011. B. Morgan, J