R. v. Nichols Date:, 2017 BCPC 240

Citation: R. v. Nichols Date: 20170816 2017 BCPC 240 File Nos: 15965-1; 15965-2 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KRISTOPHER LAWRENCE NICHOLS REASONS FOR JUDGMENT RE APPLICATION FOR AN INTERVENOR STATUS OF THE HONOURABLE JUDGE S.M. MERRICK Counsel for the Federal Crown: Michelle Ball Counsel for the Defendant: David Rosenberg Counsel for the Proposed Intervenor: Crystal Reeves Place of Hearing: Sechelt , B.C.

Dates of Hearing: May 16, 18; June 12, 2017 Date of Judgment: August 16, 2017 [1] Kristopher Lawrence Nichols is charged with two counts of fishing not under the authority of a licence issued under the PacificFishery Regulations, 1993; the Fishery (General) Regulations; or the Aboriginal Communal Fishing License Regulations and two countsof unlawfully possessing prawns caught in contravention of the Fisheries Act or Regulations as a result of fishing activities that occurredbetween May 2012 and October 2012. [2] On January 21, 2015, this Court found it was satisfied beyond a reasonable doubt that Mr.

Nichols was fishing as alleged andwas in possession of prawns as alleged. This Court also found that Mr. Nichols had not established a defence to the charges pursuant toSection 78.6(6) of the Fisheries Act and that subject to a determination of Mr. Nichols’ rights under

Section 35 of the Constitution Act1982 (“Section 35”), the charges had been proven beyond a reasonable doubt. [3] This Court determined that the next phase of the proceedings would determine the issue of whether Mr. Nichols has a Section35 right to fish. [4] This is an Application by the Shíshálh (also known as the Sechelt Indian Band or Sechelt Band) to intervene in theseproceedings. The remedy Shíshálh is seeking is as follows: 1. An order permitting the Sechelt Indian Band to intervene in Court File 15965-1; 2.

An order granting the Sechelt Indian Band the ability to cross-examine witnesses and any experts called by Mr. Nichols, callevidence, and make written or oral submissions; 3. In the alternative, an order granting the Sechelt Indian Band the ability to call evidence and make written and oral submissions; and 4. Such further and other relief that may be permitted by this honourable court. [5] The Crown and Mr. Nichols oppose the Application.

THE CASE LAW [6] A Provincial Court Judge in British Columbia, sitting as a trial judge, has no jurisdiction to grant intervenor status (exceptunder the Constitutional Question Act) whether or not constitutional issues are at stake [see R. v. Duncan, (BCCA),para. 41]. See also R. v. Kapp, 2004 BCSC 1143, para. 14 and R. v. Giesbrecht, 2014 MBPC 58 CanLII. THE PROPOSED INTERVENORS’ POSITION [7] Shíshálh submits that the narrow approach to the jurisdiction of the provincial court adopted by the British Columbia Court ofAppeal in R. v.

Duncan should no longer be followed given the broader approach adopted by the Supreme Court of Canada and courts inother jurisdictions. Shíshálh further submits in other jurisdictions provincial courts have exercised their jurisdiction to grant third partiesintervenor status. See R. v. Chemama, [2008] O.J. No. 1124 (Ct. Jus.). Shíshálh also submits that the Court in Chemama concluded themajority opinion in R. v. Duncan “reflects an overly-narrow and now almost universally discredited

interpretation of the powers of aprovincial court…” Shíshálh notes that the Court in Chemama found that the more correct or at least contemporary analysis was that ofthe dissenting judge in Duncan. In Duncan, Wood J.A. concluded that the decision to grant intervenor status represents the exercise of apower necessarily incidental to the exercise of the provincial court’s general jurisdiction. Shíshálh argues courts have been clear thatstatutory courts are not confined to only granting remedies assigned by statute.

It argues this Court’s power to grant Shíshálh intervenorstatus arises out of this Court’s implicit jurisdiction to function as a court of law, which includes the possibility of hearing from a thirdparty intervenor as well from the power to control its own process in order to administer justice fairly and effectively. RULING [8] Despite the able submissions of counsel, I agree with Crown counsel and Mr. Nichols’ counsel that I am bound by the decisionin Duncan. The proposed intervention in this case relates to an issue integral to the case and not a procedural issue. The issue in thiscase is whether Mr.

Nichols has a right. No determination is being made regarding title. I agree with the Crown submission that theCriminal Code is not silent about intervention. Intervention is provided for in Sections 579, 579.01 and 579.1 of the Criminal Code. Itis my judgment that absent a legislative provision enabling the provincial court to grant intervenor status to a private party on issuesintegral to the case, that a provincial court judge does not have jurisdiction to grant such status in a criminal proceeding. Accordingly, the application by the Shíshálh is dismissed.

With respect to the issues of costs against the Shíshálh, costs are not generallyawarded in Provincial Court in a criminal matter and I agree with the Shíshálh’s submission that this application was not misconceivedand that there was a possibility for success. Accordingly, the application for costs against Shíshálh is also dismissed. _______________________________ The Honourable Judge S.M. Merrick Provincial Court of British Columbia