A Nova Scotia judge dismissed fishery obstruction charges against two Mi’kmaw men who were transporting crates of lobsters from the Saulnierville wharf in September 2021.
Provincial Court Judge Brad Sarson found that the two fishery officers with Fisheries and Oceans Canada who charged Daniel Francis and Trent Francis violated the men’s rights under the Canadian Charter of Rights and Freedoms when they arrested them and failed to inform them of their right to seek legal counsel.
“I’m really, really excited,” Daniel Francis said following the decision. “I’m happy I stuck it out to the end. I’m happy with the outcome for sure.”
Judge Sarson, who read his decision in Dartmouth Provincial Court on Mar. 22, ruled that video of the encounter between the Mi’kmaw men and DFO officers contradicted testimony given by one of the officers who said he didn’t place them under arrest at the time.
“Fishery Officer (Gerard) McKinnon clearly told both men they were under arrest as seen in the video entered as an exhibit and there was no evidence that he (told) them of their right to counsel,” Judge Sarson said in his ruling.
“But for the video taken by Daniel Francis, I very well may have accepted the evidence of Fishery Officer McKinnon when he denied placing the two men under arrest,” he said.
“Either Fishery Officer McKinnon was lying on the witness stand when he denied placing them under arrest or he had forgotten what he said that night and was mistaken in his evidence,” Judge Sarson said.
Mi’kmaw men were transporting lobster from Saulnierville Wharf
According to court documents, Daniel Francis and Trent Francis were charged with obstructing DFO fishery officer Megan Carver “while carrying out her duties under the Fisheries Act” on Sept. 11, 2021. The alleged offence happened at or near 60 Lofty Pine Road in Popes Harbour, located approximately 90 kilometres east of Halifax.
The two Mi’kmaw men were not officially charged until Sept. 6, 2022. They pleaded not guilty and gave notice to the court they intended to challenge the charges on constitutional grounds because they have a treaty right to catch and sell fish to earn a moderate livelihood.
According to documents filed in court by the federal crown prior to the trial , fishery officers were conducting surveillance at the wharf in Saulnierville, N.S. on Sept. 10, 2021 when they “observed three fishing vessels known to be used by members of Sipekne’katik First Nation at the wharf where crates were offloaded and moved to a truck registered to Mr. Daniel Francis.”
The officers followed the truck when it left the Saulnierville Wharf until it arrived at All Canadian Seafood Group near Popes Harbour. The officers then inspected the truck and confirmed the crates contained lobsters.
“When asked by fishery officers where the lobsters came from and who fished them, Misters Daniel Francis and Trent Francis did not answer. Consequently, they were arrested for failing to produce under the Fisheries Act,” the court document states.
However, both men were not charged with failing to produce proper paperwork for possessing the lobster but instead, charged with obstruction.
Daniel and Trent Francis choose to represent themselves in court with the assistance of Del Riley, the former chief of the Indian National Brotherhood (now the Assembly of First Nations) and his assistant, Tom Keefer.
A two-day trial was held in Dartmouth Provincial Court Feb. 20-21. Fishery officers Carver and MacKinnon testified on behalf of the federal crown. Daniel Francis took the stand in his own defence.
“Serious breach” of charter rights – Judge Sarson
In handing down his decision, Judge Sarson characterized the arrest and failure to inform Daniel and Trent Francis of their rights to seek legal counsel as a serious breach of their charter rights.
“However, what makes this a more serious breach, I find, is that Fishery Officer MacKinnon has 17 years of experience,” Judge Sarson said.
“He knows or should know the difference between investigative detention and arrest, the grounds required for each and the implications of the difference or differences between them,” he added.
“I’m lucky I had that video at that time because if I didn’t have that video, there might have been a different outcome because (Fishery Officer MacKinnon’s testimony) might have stood up in court,” Daniel Francis said.
With the obstruction charges dismissed, Francis said he is considering legal action against DFO for confiscating more than four-thousand kilograms of his lobster and seizing his truck.
Francis also intends to resume buying and selling lobster to support his take-out food truck business in Millbrook First Nation near Truro.
“I’m going to continue doing what I was doing and exercising my treaty right by buying lobster from the Saulnierville Wharf,” he said.
