There were three fishery-related court cases in Nova Scotia provincial courts this week. All of them involve Mi’kmaw fishermen challenging fishery-related charges against them on constitutional grounds.
The hearings this week mostly dealt with pre-trial motions.
Jan. 2: Jason Lamrock
A hearing is scheduled in Yarmouth Provincial Court on Mar. 5 to settle a dispute between Jason Lamrock’s lawyer and the federal crown attorney Sarah Newton over aspects of an agreed statement of facts related to Lamrock’s fishing rights case.
Jamie Vacon, who represents Lamrock, 48, informed Judge James Burrill during a hearing on Jan. 2 that he intends to call three fishery officers with Fisheries and Oceans Canada to testify during the March hearing.
The agreed statement of facts is one of several court documents that need to be filed before trial dates for Lamrock’s constitutional challenge can be scheduled.
Lamrock, a member of the Wasoqopa’q First Nation (Acadia First Nation), is charged with fishing for and possession of lobster without authorization as well as not using lobster tags issued by DFO.
Lamrock initially pleaded guilty and a sentencing circle organized by the Mi’kmaw Legal Support Network was held in June 2023. According to the sentencing report, Lamrock admitted that he violated the Fisheries Act but he explained he was only exercising his treaty right to catch and sell fish to earn a moderate livelihood.
Judge Burrill struck Lamrock’s guilty plea in July 2023 because he saw no evidence of a guilty plea in the sentencing circle report. After discussions with his lawyer, Lamrock then informed the court he intended to challenge the fishery offences on constitutional grounds.
Jan. 3: Cregg Battiste and Kevin Bernard
A provincial court judge in Dartmouth, N.S. is expected to give her ruling on Mar. 8 on whether they were unlawfully detained when fishery officers arrested them in 2020 for violating a fishery management order that prohibited the harvesting of elver eels.
Cregg Battiste, 31, and Kevin Bernard, 27, are each charged with failing to comply with a 2020 fisheries management order by fishing for elver eels issued by Fisheries and Oceans Canada. Halifax lawyer Jeremiah Raining Bird represents the fishermen.
The alleged offences occurred at Little Ship Harbour River in Halifax County, N.S. on May 5, 2020. Both men pleaded not guilty, arguing they have a constitutionally protected treaty right to catch and sell fish to earn a moderate livelihood.
The fishermen’s trial got underway in Dartmouth Provincial Court on May 2, 2023, before Judge Jill Hartlen. During the trial, Raining Bird made an application to hold a voire dire hearing on his clients’ arrest and detainment by the fishery officers.
Judge Hartlen approved the application and that hearing took place on Nov. 29, 2023. Both Raining Bird and federal crown attorney Sarah Newton presented final arguments on Jan. 3.
Jan. 4: Daniel Francis and Trent Francis
The federal crown has informed a provincial court judge in Dartmouth, N.S., that it intends to file a notice to dismiss the constitutional challenge of Daniel Francis, 44, and Trent Francis, 32, in their fishery rights case.
Daniel Francis and Trent Francis of Pictou Landing First Nation, N.S. appeared before Judge Brad Sarson in Dartmouth Provincial Court on Jan. 4 for a pre-trial conference.
Their trial is scheduled to take place Feb. 20-21. Both men are representing themselves with assistance from Del Riley, who served as the president of the National Indian Brotherhood which later became the Assembly of First Nations.
Both men are each charged with obstructing a fishery officer for transporting lobster to a facility. The alleged offence took place at Lofty Pine Road in Popes Harbour, N.S. on Sept. 11, 2021.
They have pleaded not guilty and have indicated to the court they intend to use their treaty right to catch and sell fish to earn a moderate livelihood as their defence.
Daniel Francis filed a constitutional notice to the court in Nov. 2023 but federal crown attorney Sarah Newton told the court in a previous hearing that the notice was “deficient” and needed to be refiled.
