J. Q.B. A.D. 1996 No. 11 J.C.B. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF BATTLEFORD BETWEEN: HER MAJESTY THE QUEEN and BRUCE ALBERT MORIN and DENNIS DAIGNEAULT RESPONDENTS and THE METIS NATION OF SASKATCHEWAN and THE METIS NATIONAL COUNCIL PROPOSED INTERVENERS P.M. McAdam for the appellant C. Chartier and J. Teillet for the respondents F. Kovach for the proposed interveners JUDGMENT LAING J. September 8, 1997 The Crown appeals the acquittal of the respondents following trial in Provincial Court on three charges related to fishing, in contravention of the Saskatchewan Fishery Regulations passed pursuant to the Fisheries Act, R.S.C. 1985, c. F-14. Each accused was separately charged with six offences arising out of fishing activities on two lakes in northwestern Saskatchewan on December 1, 1993. The charges 1. On or about December 1, 1993, at Moberly Lake did engage in fishing by means of net without licence. In violation of Section 26(a) of the Saskatchewan Fisheries Regulations made pursuant to the Fisheries Act R.S.C., C.F-14, S.1. 2. On or about December 1, 1993, at Moberly Lake did place net in that body of water during closed season. In violation of Section 26(e) of the Saskatchewan Fisheries Regulations made pursuant to the Fisheries Act R.S.C., C.F-14, S.1. 3. On or about December 1, 1993, at Moberly Lake did fail to properly mark nets. In violation of Section 27 of the Saskatchewan Fisheries Regulations made pursuant to the Fisheries Act R.S.C., C.F- 4. On or about December 1, 1993, at Un- named Lake (NL 56ï¿½ 41' WL 108ï¿½ 15') did engage in fishing by means of net without licence. In violation of Section 26(a) of the Saskatchewan Fisheries Regulations made pursuant to the Fisheries Act R.S.C., C.F-14, S.1. 5. On or about December 1, 1993, at Un- named Lake (NL 56ï¿½ 41' WL 108ï¿½ 15') did place net in that body of water during closed time. In violation of Section 26(e) of the Saskatchewan Fisheries Regulations made pursuant to the Fisheries Act R.S.C., C.F-14, S.1. 6. On or about December 1, 1993, at Moberly Lake and Un-named Lake (NL 56ï¿½ 41' WL 108ï¿½ 15') did engage in fishing using gill net having mesh size smaller than specified in violation of Section 29(1) of the Saskatchewan Fisheries Regulations made pursuant to the Fisheries Act R.S.C., C.F-14, S.1. The respondents are Metis and reside at reasonably isolated Metis community named Turnor Lake in northwestern Saskatchewan. At trial, counsel acting for the respondents advanced standard criminal law defences to the charges, and also constitutional defence that the respondents as Metis had an aboriginal right to fish which the Saskatchewan Fishery Regulations infringed. The trial judge found the accused notguilty on counts 1, 2 and 6, supra, based on the standarddefences. He found he would have convicted the accused oncounts 3, 4 and 5 but for the constitutional defence which hefound to be established. It is the acquittals based on theconstitutional defence that are the subject of this Crownappeal. The appellant\'s notice of appeal sets out sixgrounds as follows:1. That the learned Trial Judge erred inlaw by failing to distinguish between anAboriginal right to fish for food and anAboriginal right to fish for commercialpurposes;2. That the learned Trial judge erred byfailing to hold that the Accused wereengaged in commercial fishing;3. That the learned Trial Judge erred inlaw by failing to hold that neither theAccused nor any of their ancestors at anytime possessed an Aboriginal right to fishfor commercial purposes;4. That the learned Trial Judge erred inlaw by concluding that the scrip issued toMetis pursuant to section 6(f) of theDominion Lands Act, R.S.C. 1906, c. 55 andOrder-in-Council P.C. 1459 did notextinguish any Aboriginal right to fishfor food or commercial purposes possessedby the Metis;5. That the learned Trial Judge erred inlaw by failing to conclude that therequirement to obtain a licence beforeengaging in fishing by means of a net setout in section 26(a) of the SaskatchewanFishery Regulations does not constitute aprima facie infringement of any existingAboriginal right to fish for food orcommercial purposes possessed by theAccused;6. The learned Trial Judge erred in law byacquitting the Accused on the charge undersection 27 of the Saskatchewan FisheryRegulations when neither the Aboriginalrights defence nor the equality rightsdefence had any application to the charge. Following service of the notice of appeal, The Metis Nation of Saskatchewan, and The Metis National Council, applied for intervener status on the appeal which was granted by order of this Court dated December 13, 1996 on the basis that the interveners would: be permitted to make oral arguments before the court on the appeal and to respond to presentations made by the appellant Crown, provided that such responses do not merely result in duplication of the arguments or presentations of the respondents. GROUNDS OF APPEAL 1, 2, AND The first three grounds of appeal take issue with the fact the trial judge declined to make finding that the respondents were engaged in commercial fishing. It is the position of the Crown that the respondents were in fact fishing for commercial purposes, and therefore their claim that the fishing Regulations in question infringed their aboriginal right to engage in this activity, must be judged on the basis of whether or not the respondents established an aboriginal right to fish for commercial purposes, as opposed to fishing for food only. This position of the Crown raises two issues: 1. Based on communications between counsel prior to trial, was the trial judge entitled to preclude the Crown from arguing that the fishing engaged in by the accused was for commercial purposes? 2. In any event was the proper characterization of the aboriginal right one of fishing for food, because the offences with which the accused were charged did not relate to commercial fishing, but applied whether the fishing was for domestic consumption or for commercial purposes? It is to be noted the notice of appeal does not take issue with the trial judge's finding that the respondents established on the evidence an aboriginal right to fish for food. Rather, the appeal on this point, is limited to the argument that such right was extinguished (appeal ground 4), and in any event the regulations are justified (appeal ground Background Counsel for the accused made it known to the Crown from the outset, that while traditional defences to the charges brought against the accused would be advanced, the accused would also be offering constitutional defence in which they claimed their aboriginal right to fish was infringed by the Saskatchewan Fishery Regulations. The Fishery Regulations relevant to the acquittals of the respondents on counts 3, and are as follows: 26. No person shall (a) engage in fishing by means of net, set line or trap unless he holds licence authorizing such fishing; (e) place net, set line, trap or running line in any body of water during the closed time for that water. (1) Every person who uses net or set of nets for fishing shall mark, in the case of an individual net, each end of the net or, in the case of set of nets, the outermost extremity of each end of the set, by (a) buoy surmounted by flag, the top of which is at least one metre above the surface of the water, where the net or set of nets are used for open water fishing; or (b) stake, the top of which is at least one metre above the surface of the ice, where the net or set of nets are used for fishing through iced-covered water. (2) person who uses buoy or stake referred to in subsection (1) shall have legibly marked thereon at all times the number of his licence in such manner that the number is readily visible. It will be noted the foregoing Regulations apply whether the fishing in question is for commercial or domestic purposes. Under the Regulations, fishing for domestic purposes is distinguished from angling. The Regulations provide the following definitions in s. 2: "domestic fishing" means fishing for or catching fish solely for the personal use of the person fishing for or catching the fish or his immediate family but does not include sport fishing; "Indian fishing" means domestic fishing by an Indian; "Indian" has the same meaning as the Indian Act. Regulation 28 at the time provided: 28. No person shall engage in commercial fishing unless that person is the holder of licence issued for such purpose. The Regulations under the heading "Domestic and Indian Fishing" included: 37.(1) No person shall engage in domestic fishing or Indian fishing unless that person is the holder of licence issued for such purpose. (2) Notwithstanding subsection (1), an Indian may engage in Indian fishing by means of angling without licence. 38.(1) No person engaged in domestic or Indian fishing shall (a) use more than 100 of gill net or more fishing gear than the fishing gear specified in that person's licence; (b) dispose of any fish caught while engaged in such fishing to any person other than member of his immediate family; (c) subject to subsection (3), have in his possession at any time more than 50 kg of fish caught while engaged in such fishing; or Prior to trial, pre-trial conference was held on July 15, 1994, before judge who was not the trial judge, at which time the manner of proceeding at trial was reviewed. The pre-trial judge made detailed notes of this conference. He noted in part as follows: There was discussion as to whether, in fact, the Crown's case includes an allegation of commercial fishing, since if it does not, several of Mr. Chartier's arguments may not be necessary. Mr. McAdam indicated that he and Mr. Campbell will advise Mr. Chartier in timely manner as to whether he must meet an allegation of commercial fishing, so that Mr. Chartier can prepare his Notice under the Constitutional Questions Act. For his part, Mr. Chartier indicated that he would give such notice in as timely manner as possible. Following the pre-trial conference, Crown counsel in letter dated August 2, 1994 to defence counsel, advised as follows: Further to the discussions that we had at the pre-trial conference held on July 15th, am writing to confirm that it is our position that it is not necessary for the Crown to prove anything with respect to commercial fishing in order to make out all the charges against your clients. Therefore, from the Crown's perspective, commercial fishing is not an issue in this case. Of course, it is open to you to attempt to establish that your clients have an Aboriginal right to fish for commercial purposes as potential defence to the charges. Therefore, you may wish to make commercial fishing an issue. If you intend to do so, please let us know as soon as possible so that we may properly prepare. On August 23, 1994, counsel for the accused served notice of the constitutional question they intended to raise on behalf of the accused on the Attorney General. The notice identified their aboriginal right claimed in the following wording: My clients are Metis and will be relying on their Aboriginal right to fish as protected under the Constitution of Canada. More specifically, my clients will be relying on sections 91(24) and 146 of the Constitution Act, 1867, along with the Rupert's Land and North-Western Territory Order passed pursuant to s. 146. My clients will also be relying on s. 35 of the Constitution Act, 1982, as well as paragraph 12 of the Constitution Act, 1930. At trial, the accused called evidence from Elders of the Metis community in northwestern Saskatchewan (the trial judgment stated the decision ". will cover the area loosely known as Treaty 10 or perhaps little larger"), witness who had conducted interviews with number of Elders in the area over period of time, and expert evidence from Professor Frank Tough, Associate Professor with the Department of Native Studies at the University of Saskatchewan. The accused also testified on their own behalf. The accused admitted to being commercial fishermen. The accused had ten nets out at the time the nets were seized, eight on Moberly Lake and two on Un-named Lake. At one set of three nets on Moberly Lake, substantial number of tubs of fish were removed from the nets at the time of seizure. The two nets on Un-named Lake also contained fish at the time of seizure. The accused Morin was questioned as to what he might have done with the fish if the nets had not been confiscated. The following testimony was given by Mr. Morin: At p. 89: 23 Q. What do you do for living? A. Fish. Q. Okay. Anything else? At p. 90: 25 Q. But you said for living you fish; that's correct? At p. 101: 16 Q. Okay. Now, if you had caught fish at Fox Lake that time, what was your what were you going to do with those fish? A. What was going to do with them? A. probably would have sold some of them, gave some away. Earlier in his testimony at p. 91, the accused had indicated he and his family eat some of the fish that he catches. At p. 91 the following questions and answers appear: 10 Q. No. Do you and your family eat the fish that you catch? Q. Yeah. Do you eat fish lot? A. Most of the time, yeah. Q. Do you ever share any of the fish that A. Yeah. On cross-examination, Mr. Morin was asked: 17 Q. Now, what were you guys going to do with the fish that were caught? Were you going to sell those fish? A. Yeah. Q. Okay. Now, who was going to sell the A. What do you mean, who was going to sell it? Q. Well, were you going to sell the fish or sell some of the fish? A. was going to sell some of it, yeah. Q. Okay. And A. Me or my dad or Dennis, one of us was going to come and sell it. Oh, okay. So you might well sell some, Dennis might sell some, and your dad might A. You sell everything at one time not just sell two, three fish there and then go sell another two, three someplace else. You sell them all at one time. Q. Okay. How many fish did you expect to A. don't know. A. didn't expect anything. just was trying. The accused, Daigneault, was not specifically asked in his testimony what he intended to do with any fish that might have been caught. At p. 160 of the transcript, Mr. Daigneault was questioned as follows: 12 Q. No? How long have you been fishing? think you said in response to one of Mr. Chartier's questions that you'd been fishing since you were teenager. think you said. A. Quite awhile anyway. Q. Yeah. More than ten years? Q. Yeah. And take it you've been commercial fisherman during that time. You've been selling fish. Yeah. Earlier in his testimony-in-chief, Mr. Daigneault indicated he and his family eat some of the fish that he catches as well and that they also share some with family and friends. At p. 142, the following questions and answers appear: 23Q.Do you and your family eat the fish, some of the fish that you catch? A. Mhmm, yeah. Q. Yeah. Do you ever share any of that fish that you catch? A. Yes. Q. With who? A. Family, friends. Mr. Daigneault was commercial fisherman at the time of the charges laid in this matter. At p. 169 of the transcript, the following questions and answers appear: Q. Okay. After you left school in Grade 8, what did you do? Did you go out and A. went fishing. Q. With your dad or on your own? A. With my dad. Q. And take it that that was he was catching fish and selling them and you were helping him out. Q. Okay. How long did you do that? A. Quite awhile, about ten years. Q. About ten years. Did you have any other jobs sort of off and on? A. Yeah, did. Q. What kind of jobs? A. Work on housing. Fire during the Q. Yeah. think you said that right now you're working for Home Care? Q. Yeah. How long have you been working A. Three weeks. Q. For three weeks. What were you doing just before that? A. was drawing U.I.C. Q. Drawing U.I.C. What had you been doing before that to qualify for U.I.C.? A. Fishing. Q. You had been fishing. So when you're fishing, you can pay into U.I.C. A. Yes. Q. Yeah. When you're commercially fishing, is that something that goes year round, or is that just in the winter? A. Just in the winter now. Q. Yeah. Just in the winter now? Q. Do some people commercially fish in the A. They did before. Q. Yeah. But they don't anymore. A. No, they close the lakes during the summer. Following conclusion of the evidence, the trial was adjourned to allow the parties to submit written argument. Upon receipt of the Crown's brief, defence counsel became aware that the Crown was arguing that as the accused were in fact commercial fishermen and had admitted in their evidence at trial that they would have sold some of the fish if they had caught any in their nets, that the only aboriginal right the Court should consider was the aboriginal right to fish commercially. Following receipt of the Crown's brief, defence counsel wrote to Crown counsel in letter dated April 27, 1995, which is hereinafter set out in its entirety: am in receipt of your Brief of Law dated April 21, 1995. In your Brief on page you state the constitutional question as follows: "Did the non-Treaty or Metis of the Turnor Lake District of Northwestern Saskatchewan, at one time, have an Aboriginal right to fish for commercial purposes?" At no time since the pre-trial conference held in July 1994 has the defence considered this case to be about an "Aboriginal right to fish for commercial purposes". We have, since that pre-trail (sic) conference, at all times acted and presented our defence as being about an "Aboriginal right to fish for food." remind you that at the pre-trial conference, you stated that the Crown did not feel that fishing for commercial purposes would be an issue, and that the Crown was not considering pursing the commercial fishing aspects of this case. During that teleconference, Judge Nightingale specifically requested that you communicate your decision on this matter to the defence, so that the constitutional notice could be issued by the defence based on that decision. On August 2, 1994 you sent me letter in which you confirmed that the Crown had no intention of arguing the issue of commercial fishing. "I am writing to confirm that it is our position that it is not necessary for the Crown to prove anything with respect to commercial fishing in order to make out all the charges against your clients. Therefore, from the Crown's perspective, commercial fishing is not an issue in this case." While am aware that during the trial there was some mention made of the intention of one of the defendants (in examination in chief) regarding disposal of the fish caught while testing Fox Lake, there was never any attempt on the part of the defence to introduce evidence to substantiate an Aboriginal right to fish for commercial purposes. It is our position that you were well aware of this, in view of the pre-trial conference, your confirming letter and the defence evidence presented during the trial. We defended our clients at trial on the understanding that commercial fishing was not an issue in this case. We proceeded under this understanding only because you had assured us, in writing, that commercial fishing was not an issue. do not feel it is appropriate for the Crown to change the issues at this time and to argue in your Brief an issue which was not argued at trial. am writing this letter to request that you revise your Brief in light of the issue which was argued at trial: an Aboriginal right to fish for food. If you decline to do so will take the matter up with the Judge. would appreciate an immediate response since May 12th, our date set down for legal argument is approaching quickly. Defence counsel replied to the foregoing letter in letter dated May 3, 1995, wherein he stated as follows: am receipt (sic) of your letter of April 27th. In my view, the evidence at trial clearly established that your clients intended to sell any fish that they caught at Moberly Lake or Fox Lake. Therefore, they were engaged in commercial activity. The evidence, in my view, did not establish that they were hunting (sic) for food to feed themselves or their families. Therefore, an Aboriginal right to fish for commercial purposes is the issue. If you will refer to my letter of August 2nd, 1994, you will note that specifically said that "it is open for you to attempt to establish that your clients have an Aboriginal right to fish for commercial purposes as potential defence to the charges. Therefore, you may wish to make commercial fishing an issue" In my opinion, by the evidence that was given at trial by your clients, this is what you have done. If you wish to argue the case on the basis of an Aboriginal right to fish for food, that is your prerogative. However, it remains my position that it is the commercial right that is in issue and will be arguing the case on that basis. Following receipt of Crown counsel's letter, defence counsel wrote to the trial judge in letter dated May 4, 1995, the text of which follows: draw to your attention, conflict which has arisen in this case. As this conflict is fundamental to the determination of this case, feel that it should be dealt with in timely fashion. Specifically, based on the pretrail (sic) conference of July 1994 and letter of August 2, 1994 from the Crown to myself, the defence in this case has been solely based on an "Aboriginal right to fish for food". This continues to be reflected in our written argument. However, upon receipt of the Crown's written argument, we are now apprised of the change in the Crown's position. Basically, they are now approaching this case on the issue of an "Aboriginal right to fish for commercial purposes." While it cannot be denied that evidence of some aspects of commercial fishing were inevitable in this case, there was never any intention on the part of the defence to abandon its sole defence based on the issue of an "Aboriginal right to fish for food". The total effort of the defence was built around this defence. Clearly, the Crown has always known that the defendants were engaged in the commercial fishery and that this is not simply case where some completely unheard of evidence arose which changed the whole basis of the trial. This was clear from day one. While some of this evidence was allowed to come out at trial, we didn't think it would hurt our clients because of our reliance on the Crown's written assurance that this was not an issue. As consequence of the reliance on the Crown's written confirmation that commercial fishing was not an issue, no evidence was put forward to establish Metis right to fish for commercial purposes. One of the fundamental principles of justice dictates that persons charged with offences know what issues they are facing in order to prepare proper defence. We believe that this principle of justice has been breached in this case. We would appreciate an opportunity to resolve this conflict/issue before proceeding to closing argument. Depending on how this matter gets resolved, further adjournment may be necessary to prepare written argument based on totally new defence. It may also be necessary for us to request the re-opening of the trial so that evidence to establish an "Aboriginal right to fish for commercial purposes" may be introduced. Presumably as result of communication between counsel and the trial judge, defence counsel brought motion dated June 23, 1995, before the trial judge which motion requested: an Order under section 24(1) of the Charter of Rights and Freedoms directing the Crown to comply with his undertaking that the issue in the matter before the Court is as follows: Do the Metis of Northwestern Saskatchewan have an Aboriginal right to fish for food? AND FURTHER TAKE NOTICE that the grounds upon which this application is brought are as follows: a) Changing the constitutional question after the Defence has closed its case violates sections and 11(d) of the Charter of Rights and Freedoms. b) Breach of the Crown's undertaking and Defence reliance thereon violates sections and 11(d) of the Charter of Rights and Freedoms. In written decision dated August 14, 1995, but which was obviously delivered to the parties prior to that date, the trial judge dismissed the motion, and in doing so made the following observations: Having reviewed all the material before me and of course hearing the evidence at trial, am satisfied that the crown at no time, before filing their Brief in Argument, alleged the defendants were fishing commercially. As stated by counsel for the crown, there was no evidence upon which the crown could build case of commercial fishing. It then seems the question of commercial fishing was left open for the defense to bring up if so desired. As shown in Mr. McAdam's letter to Mr. Chartier dated August 2, 1994, and which may have been misinterpreted by the defense, quote in part "of course it's open to you to attempt to establish that your clients have an aboriginal right to fish for commercial purposes as potential defense to the charges. Therefore, you may wish to make commercial fishing an issue. If you intend to do so, please let us know as soon as possible so that we may appropriately prepare". have to conclude that the crown at no time intended not by word or action to make commercial fishing the constitutional issue at least prior to their brief which gave rise to this motion. Without prejudging the case, have to agree that the thrust of the defense evidence would leave one to believe that the defendants were engaged in fishing commercially as one understands that concept in the everyday sense. The crown had right and perhaps duty to answer the defendants' evidence and in doing so did not breach any agreement that the defendants would not be prosecuted for commercial fishing. Since the crown had right to respond to the evidence, there will be no direction to it as requested by the defendants. It must not be taken that the crown's brief is accepted by the court over that of the defense just that it was reply within the law. It may be appropriate at this point to state that in filing the argument crown counsel was clearly free of malice or devious approach. Any suggestion of professional misconduct is clearly unwarranted. As put forth early in this ruling, the important question to be considered is constitutional one. Both parties have already expended great amount of time and resulting money as witnessed by the now five days of hearings and mountain of material that has been filed with the court. To allow this case to "go off the rails" at this juncture would not be prudent. Before proceeding, however, am directing the defendants to clearly state what they consider the constitutional issue to be. It is not precise. (emphasis added) Pursuant to the direction of the trial judge, defence counsel filed new constitutional question dated July 27, 1995, the text of which is: 1. The Constitutional Question to be determined, as reflected in the August 23, 1994 constitutional notice and the relief sought in the application for directions made on June 28, 1995 is as follows: Do the Metis of Northwestern Saskatchewan have an Aboriginal right to fish? 2. In order to answer that Constitutional Question, the following issues must be determined: (i) Do the Metis of Northwestern Saskatchewan have an existing Aboriginal right to fish? (ii) If the answer to (i) is yes, what is the scope of that right? It is submitted that this is the proper approach to take, as set out in Sparrow by the Supreme Court of Canada. At page 401, after finding "that the Indians have an exisiting (sic) aboriginal right to fish in the area where Mr. Sparrow was fishing at the time of the charge", the Supreme Court at page 402 then stated: The scope of the existing Musqueam right to fish must now be delineated. added] R. v. Sparrow (1990) 1990 CanLII 104 (SCC), 70 D.L.R. 385 (SCC) It is therefore submitted that it is first necessary to determine whether the Metis have an existing Aboriginal right to fish in the area where Morin and Daigneault were fishing at the time of the charges, and if such an Aboriginal right to fish exists, to then delineate the scope of that right. The record is not clear exactly what transpired following this interim ruling. The record does reflect the fact that no further evidence was called by either party. Final arguments were heard on August 14, 1995. The trial judge issued his decision on April 24, 1996. With respect to the issue of characterization of the aboriginal right claimed, the trial judge stated as follows at p. 9: Considerable discussion surrounded the issue of the Defendants (sic) right to "fish commercially" particularly after Counsel filed their first briefs and the subsequent defense motion asking the Court to direct the Crown away from the issue of commercial fishing. agreed with the Crown that the Defendants (sic) evidence seemed to point in that direction, however, after reviewing the notes of the judge at the pre-trial conference and correspondence between the parties, concluded that it was not the intention of the parties that the issue should be so confined. Accordingly, took the position that it is the obligation of the court to bring the issue into focus. After considering the briefs of Counsel and argument ruled that the issue would be "did the Accused have an aboriginal right to fish". In effect, did that right exist with their ancestors from the time of the declaration of British Sovereignty to the passing of the Constitution Act 1982 Section 35(1) and 52 and if it did exist was it lawfully extinguished at any At p. 10: Further, will not consider whether the Metis have right to fish for commercial purposes nor for ceremonial, social, nor for food nor for sustenance. Was the trial judge entitled to ignore the Crown's argument that the aboriginal right claimed should be characterized as fishing for commercial purposes? The trial judge was not correct in declining to better define the aboriginal right in question beyond "the right to fish". In R. v. Van der Peet, 1996 CanLII 216 (SCC), [1996] S.C.R. 507, Lamer C.J. stated at p. 563: The first step in the application of the integral to distinctive culture test requires the court to identify the precise nature of the appellant's claim to have been exercising an aboriginal right. In the companion decision of R. v. Gladstone, [1996] S.C.R. 723 at pp. 743-44, Lamer C.J. noted: The first step in applying the Van der Peet test is the determination of the precise nature of the claim being made, taking into account such factors as the nature of the action said to have been taken pursuant to an aboriginal right, the government regulation argued to infringe the right, and the practice, custom or tradition relied upon to establish the right. At this stage of the analysis the Court is, in essence, determining what the appellants will have to demonstrate to be an aboriginal right in order for the activities they were engaged in to be encompassed by s. 35(1) There is no point in the appellants being shown to have an aboriginal right unless that aboriginal right includes the actual activity they were engaged in; this stage of the Van der Peet analysis ensures that the Court's inquiry is tailored to the actual activity of the appellants. In fairness to the trial judge, the foregoing decisions had not been published at the time he rendered his decision. The Crown is correct that the trial decision must be restricted to finding that the respondents established their aboriginal right to fish for food, which is the lowest in the hierarchy of aboriginal fishing rights of the three that have been acknowledged to date by the Supreme Court of Canada: the right to fish for food (R. v. Sparrow, 1990 CanLII 104 (SCC), [1990] S.C.R. 1075); the right to exchange fish for money or other goods (R. v. Gladstone, supra); and the right to fish commercially (R. v. N.T.C. Smokehouse Ltd., 1996 CanLII 159 (SCC), [1996] S.C.R. 672). The question is whether interpreting the decision as set out in the foregoing as one restricted to the Metis' aboriginal right to fish for food, the trial decision can be upheld based on the pre-trial communications between the parties as to the issues that would be argued during the trial, despite the fact the evidence at trial indicates the respondents were fishing commercially (as found by the trial judge at p. of his judgment). The trial judge found that the Crown had notbreached an undertaking, nor had it misrepresented itsposition to the defence with respect to the constitutionalissue. The trial judge, nevertheless implicitly found thatthe respondents had been prejudiced in their defence throughthe misunderstanding which had occurred between therespondents\' counsel and Crown counsel. This appears from the following remarks in his judgment: Considerable discussion surrounded the issue of the Defendants right to "fish commercially" particularly after counsel filed their first briefs and the subsequent defence motion asking the Court to direct the Crown away from the issue of commercial fishing. however, after reviewing the notes of the judge at the pre-trial conference and correspondence between the parties, concluded that it was not the intention of the parties that the issue should be so confined. In retrospect, one can readily understand how defence counsel was mislead with respect to the Crown's response with respect to the issue of commercialism. In questioning the Crown whether commercialism would form any part of the prosecution's case, and in receiving the answer it would not, defence counsel framed their case as an aboriginal right to fish for food. The portion of the Crown's letter stating: Of course, it is open to you to attempt to establish that your clients have an aboriginal right to fish for commercial purposes as potential defence to the charges. Therefore, you may wish to make commercial fishing an issue was open to the interpretation based on the other discussion which occurred at the pre-trial conference, that as long as the defence did not allege an aboriginal right to fish for commercial purposes, the Crown would not raise commercialism. Defence counsels' understanding was that as long as they restricted themselves to alleging an aboriginal right to fish for food, they would not ". make commercial fishing an issue". There is no question the respondents did not lead evidence to establish an aboriginal right to fish commercially. The Crown candidly agrees in its brief at p. 24: It is acknowledged that the customs, practices and traditions relied upon by the accused to establish an aboriginal right upon which to base their defence do not focus upon commercial sales of fish by Metis in the historical period. The question for the trial judge was whether to attach responsibility for the misunderstanding which developed between counsel solely to defence counsel, or whether Crown counsel should also accept some responsibility for the same. He concluded it was not the intention of the parties that theissue should be confined to the commercial issue. He wasentitled to do so, and such a finding of fact should not bedisturbed by this Court acting on appeal. asked Crown counsel on this appeal why the Crown was so vehemently insisting that the aboriginal right advanced by the accused be characterized as one of fishing for commercial purposes, when the Crown could contest that issue if and when it arose in another case, bearing in mind the present case had no precedent value with respect to the issue of fishing for commercial purposes. The response was that the Crown has another Metis fishing for food case in the court system suggesting it did not wish to have this particular decision as precedent. However, it should be noted that the case law makes it perfectly clear that aboriginal rights are site specific and the finding of an existing aboriginal right in one group in one location does not establish the same right for another group in different location. Vide: R. v. Van der Peet, supra, per Lamer C. J. at p. 559: Aboriginal rights are not general and universal; their scope and content must be determined on case-by-case basis. The fact that one group of aboriginal people has an aboriginal right to do particular thing will not be, without something more, sufficient to demonstrate that another aboriginal community has the same aboriginal right. The existence of the right will be specific to each aboriginal community. It is important to our system of justice, that persons who are brought before the courts involuntarily, perceive that they have been treated fairly by the system. In Caccamo v. R., 1975 CanLII 11 (SCC), [1976] S.C.R. 786, Spence J. stated at p. 796: In my view, it is the duty of the court to be vigilant to assure itself that the appellant has had fair trial and if the regrettable conduct of the prosecution, using that term to cover both the police and Crown counsel, ever results in unfairness then the court should act with decisiveness to reverse such unfairness. (emphasis added) As noted above, there is no suggestion that the prosecution in this case was guilty of any regrettable conduct and indeed conducted itself in proper manner throughout. Nevertheless, the Crown was unwittingly contributor to the misunderstanding which at the end of the evidence contributed to an unfair result if its position was accepted. The decision would have been foregone conclusion. The Crown agrees that no substantial evidence of the Metis' aboriginal right to fish commercially had been presented at trial. At the same time, the trial judge's decision did not create an unfair result for the Crown, as the Crown had the full opportunity to cross-examine all witnesses presented by the respondents in support of their claim of an aboriginal right to fish for food. There is precedent for an appellate court accepting the characterization of the aboriginal right advanced at trial. In R. v. Sparrow, supra, Mr. Sparrow was licensed commercial fisherman (Vide: British Columbia Court of Appeal decision (1987), 1986 CanLII 172 (BC CA), 36 D.L.R. (4th) 246 at p. 255). There was evidence in that case from which it might have been argued that Mr. Sparrow was in fact commercially fishing. The length of the net he was using was twice the length allowed for food fishing. The Crown apparently did not advance the argument at trial, and the Supreme Court of Canada accepted that position. At p. 1101, the Court noted: In the courts below, the case at bar was not presented (emphasis added) on the footing of an aboriginal right to fish for commercial or livelihood purposes. Rather, the focus was and continues to be on the validity of net length restriction affecting the appellant's food fishing licence. (original emphasis) We therefore adopt the Court of Appeal's characterization of the right for the purpose of this appeal, and confine our reasons to the meaning of the constitutional recognition and affirmation of the existing aboriginal right to fish for food and social and ceremonial purposes. For the foregoing reasons, grounds 1, 2 and 3 of theappeal are dismissed. In any event, was the aboriginal right in issue properly characterized as one of fishing for food? In the alternative, the respondents also took the position that based on the charges laid, the proper characterization of the aboriginal right on the facts of this matter, was the aboriginal right to fish for food. The respondents base this position on the fact that the breach of regulations with which they were charged, did not relate to commercial activity, but were applicable for whatever reason the fishing activity was being pursued. They state there are no cases where an aboriginal has had to establish commercial aboriginal right where the offence charged did not allege commercial activity. Their position is that unless the charges allege an infringement of the commercial provisions of the Fishery Regulations, the aboriginal right to fish commercially, or to exchange fish for money or other goods, can never be in issue. am not able to agree with this submission. The foregoing argument confuses what the Crown must establish to prove the offences alleged, with what the accused must establish to succeed in defence of aboriginal right. With respect to the offence(s) alleged, the burden of proof is on the prosecution. With respect to the constitutional defence of aboriginal right, the burden is on the accused to establish that the right claimed was an integral practice, custom, or tradition of central significance to the aboriginal society in question. (Vide: R. v. Van der Peet, supra, at p. 553) With respect to the evidence led to establish or deny the aboriginal right being claimed, it is the duty of the Court to determine the actual activity being engaged in before attempting to determine if that activity was integral to the distinctive culture, etc. of the aboriginal society in question. (Vide: R. v. Gladstone, supra, at pp. 743-44, quoted at p. 25 herein) As in any trial, criminal or civil, the opposing party is entitled to cross-examine and lead evidence with respect to any matter in issue in the trial. When that issue is claimed aboriginal right, at issue is the actual activity being engaged in by the accused. Allowing the Crown to question or lead evidence with respect to matter placed in issue by the accused, does not interfere with the accused's ability to control his or her defence, but is simply allowing the Crown to perform its role in our adversarial system. Vide: R. v. Swain (1991), 1991 CanLII 104 (SCC), S.C.R. 933 at p. 975. In this case the respondent Morin readily admitted the purpose of the fishing engaged in was to sell at least some portion of the fish obtained. The respondent, Daigneault, was not questioned on the purpose of their fishing, but he was clearly aiding Morin in the fishing activity. The trial judge found with respect to the commercial purpose for the fishing: agreed with the Crown that the Defendants evidence seemed to point in that direction, Once it was determined the actual activity engaged in wasfishing for the purpose of selling the fish, the onlyaboriginal rights that could be said to be infringed waseither the aboriginal right to exchange fish for money orother goods, or the aboriginal right to fish commercially (perR. v. Gladstone, supra, at p. 744). On the evidence, theaboriginal right to fish for food was no longer relevantbecause the evidence did not establish that was the activitythe respondents were engaged in. Ground (Extinguishment) With respect to the Crown's position that the Metis' aboriginal right to fish had been extinguished by the issuance of Scrip, the trial judge held at pp. 32-33 of his judgment: find the Defendants have proven through the evidence and to the criteria set forth in Sparrow that they, as Metis of Northwest Saskatchewan have an aboriginal right to fish and that the right arose prior to 1870. find that no legislation or agreement with the Crown has extinguished that right, refer in particular to the Dominion Land Act, 1906, and Order-in-Council 1459. From the oral history evidence, and the expert testimony find that the Metis at the time of the issue of scrip understood that their fishing, hunting and trapping lifestyle would not be disturbed. To repeat the words of the Supreme Court in Sparrow: "The test of extinguishment to be adopted, in our opinion, is that the Sovereigns intention must be clear and plain it if is (sic) to extinguish an aboriginal right." have no hesitation in finding the Crown has failed to discharge the burden of proving the Defendants Aboriginal right to fish has been extinguished. The trial judge found as fact that the scrip issued to Metis persons in northwest Saskatchewan in 1906 made no reference to hunting or fishing rights (p. 23). As noted in the quotation from his judgment above, the trial judge also found as fact that at the time this scrip was issued, the Metis of northwest Saskatchewan "understood their fishing, hunting and trapping lifestyle would not be disturbed." On this appeal, the Crown argues that as matter of law, the acceptance of scrip by Metis persons amounted to surrender of such person's aboriginal title, and that the aboriginal right to fish was extinguished with the extinguishment of title. This position is not maintainable. The trial judge did not make finding of fact that the issuance of scrip to those Metis persons who accepted the same, constituted legal surrender of aboriginal title. Such finding was not necessary for his decision on the issue of extinguishment of the aboriginal right to fish, and it would be improper for this Court to make such finding on appeal. Without such finding, there is absolutely no point in discussing what might be incidental to such finding had it been made. As the intervenors pointed out, there is presently lawsuit in the Court system to determine if the issuance of scrip in the circumstances surrounding the same, amounted to surrender of aboriginal title by Metis persons, and that is the proper manner in which to have such an issue determined. As noted by Dickson C.J. in R. v. Sparrow, supra, at p. 1095: the trial for violation of penal prohibition may not be the most appropriate setting in which to determine the existence of an aboriginal right, The Crown's position that R. v. Howard, [1994] S.C.R. 299 is an authority that should have been applied by the trial judge is not accepted. The headnote for this case in the Supreme Court Reports correctly states at p. 300: The issues in this case are essentially factual in nature and the subject of concurrent findings in the courts below. In the absence of palpable and overriding error which affected the trial judge's assessment of the facts, an appellate court should not reverse the conclusions of the lower court. The facts in this case are not similar to the facts in the Howard case, and in the absence of such similarity, the Howard decision is of no precedent value in this case. The decisions of the Supreme Court of Canada in R. v. Adams, 1996 CanLII 169 (SCC), [1996] S.C.R. 101 and R. v. Cï¿½tï¿½, [1996] S.C.R. 139 support the trial judge's right to make finding of fact, as he did, that the aboriginal right of Metis persons in northwest Saskatchewan to fish, existed separate and apart from any claim they may have to aboriginal title. In R. v. Cï¿½tï¿½, at pp. 166-167, Lamer C.J. stated: For the reasons have given in the related appeal in Adams, supra, find that aboriginal rights may indeed exist independently of aboriginal title. As explained in Adams, at para. 26, aboriginal title is simply one manifestation of the doctrine of aboriginal rights: We wish to reiterate the fact that there is no priori reason why the defining practices, customs and traditions of such societies and communities should be limited to those practices, customs and traditions which represent incidents of continuous and historical occupation of specific tract of land. In the Adams decision, Lamer C.J. noted at p. 130: While these events may be adequate to demonstrate clear and plain intention in the Crown to extinguish any aboriginal title to the lands of the fishing area, neither is sufficient to demonstrate that the Crown had the clear and plain intention of extinguishing the appellant's aboriginal right to fish for food in the fishing area. The foregoing makes it clear that even where the Court finds an aboriginal title to land has been extinguished, this does not mean the aboriginal right to fish has been extinguished as well. As noted in R. v. Sparrow, per Dickson C.J. at p. 1112: Fishing rights are not traditional property rights. They are rights held by collective and are in keeping with the culture and existence of that group. Courts must be careful, then, to avoid the application of traditional common law concepts of property as they develop their understanding of what the reasons for judgment in Guerin, supra, at p. 382, referred to as the "sui generis" nature of aboriginal rights. The trial judge\'s finding that an aboriginal right to fishexisted in the Metis persons of northwest Saskatchewanseparate and apart from the issue of aboriginal title is onehe was entitled to make and should not be disturbed. Ground (Infringement and justification with respect to the licensing requirement) This ground of appeal states the learned trial judge erred by failing to conclude that the requirement to obtain licence before fishing with net, is not prima facie infringement of an existing aboriginal right to fish for food. The evidence at trial, both oral and documentary, established that in northern Saskatchewan, historically and now, there was very little, if any, distinction between the Indian and Metis aboriginal people. The distinction has always been primarily legal one based on whether ancestors opted for Scrip or for Treaty. As the trial judge noted at p. 34 of his decision: It was recognized from the earliest days that the division was really artificial and that the two peoples lived very much alike and in the exact same area. The artificial division is finally recognized, in my view, in Section 35(1) of the Charter. In support of the foregoing view, the trial judge not only reviewed the oral evidence presented at trial, but also some of the documentary evidence submitted at trial, including the following excerpts from exhibits filed: (1) Exhibit D-8 the report of Treaty Commissioner McKenna dated January, 1907 where at p. Commissioner McKenna stated: ". It is difficult to draw line of demarcation between those who classed themselves as Indians and those who elected to be treated with as half-breeds. Both dress alike and follow the same mode of life. It struck me that the one group was, on the whole, as well able to provide for self-support as the other." (2) Exhibit D-10 final report of the Alberta and Saskatchewan Fishery Commission of 1911, where at p. 62 the following is stated: To intelligently handle this question it will be necessary to go into the subject more fully than at first sight it may appear desirable, and for the sake of brevity the term "Indian" is meant to include Halfbreed as well, and one term might well include them both, for it has been repeatedly stated to the Commissioners that there are few, if any, pure bred Indians in existence at the present time, referring especially to those living in the north. The distinction is that the Halfbreed is Canadian citizen while the Indian can be made so only with difficulty under our present Indian Act." (3) Exhibit D-23 letter from the Saskatchewan Attorney General to the Federal Minister of Indian Affairs dated December 11, 1935: The advent of the white man created this half-breed problem. When the treaties were made with the Indians they were given the right to elect as to whether they would become Treaty Indians or accept scrip and become ordinary citizens of the country. At these points, and on the Indian Reserves in and about them, the Indian population so called is really largely half breed. There are very few full blooded Indians and those who are on the reserves generally have strain of white blood. Those who are not Treaty Indians and are half-breeds are therefore approximately in the same category as those who are on the reserves." (4) Exhibit D-23b letter from the Indian agent at Battleford to the Inspector of Indian Affairs at Regina dated February 28, 1938: "I have made very little if any distinction, between Treaty Indians and Non-Treaty or Half breed as they all work together and live the same form of life and the country left to them would soon come back to certain extent, it is the annual outside outfits that do the harm." (5) Exhibit D-23h letter from an Oblate missionary located at La Loche, Saskatchewan, dated August 10, 1939 to his Bishop: "I write Indians and Metis (I.&M.); in fact the difference is nominal. have here brothers, some of whom are Indians and others Metis, even case where the father is Metis and his son an Indian!" The foregoing evidence is referred to simply to emphasize thatthe Indian and Metis aboriginal people in northernSaskatchewan are similarly situated. In considering whether alicensing requirement constitutes an infringement of theaboriginal right to fish for food, there is no basis todistinguish between the aboriginal groups with respect to whatconstitutes infringement. The regulation of fishing in the Province of Saskatchewan is contained in part in the Fishery Regulations in place in 1993, but was amplified at trial by the evidence of Mr. John Weir, regional fisheries biologist employed by the Saskatchewan Department of Environment and Resource Management. Mr. Weir testified that the management of the Fish Resource is concerned in the first instance with conservation, and thereafter with the management of the resource, which consists of allocating the resource amongst the various user groups. The Regulations make provision for three types of licences: sport, domestic, and commercial. Sport fishing is angling. Domestic fishing as noted in the Regulations quoted above, is fishing for food by means of net. Domestic fishing licences cost $5.00 and are issued for specific body of water. The issuance of such licences are discretionary. The resource officer decides if one should be issued. Vide: evidence of John Weir at p. 712 of the transcript: Q. Now, also wanted to ask you about people that want to fish for food purposes, for the purposes of feeding themselves and their family. If somebody wants to do that, how do they go about A. Well, they would presently they would come into our district office and talk to the local conservation officer. And at that situation, by policy, he is to the officer determines the need of the individual for the purpose of domestic fishing, which is to supply fish for the person's family. domestic fishing licence is the only way the northern population including Metis, but exclusive of treaty Indians, can legally fish for food with net. In other words, the Metis have no more right to domestic food fishing licence than the balance of the non-Indian population. What is not contained in the Regulations, is the fact that treaty Indian persons can acquire treaty-net licence for lake which is free, and non-discretionary except possibly for closed waters. In addition, treaty Indians may dip net and spear fish without licence. (evidence of John Weir, pp. 714-15) The Regulations state an Indian may also angle without licence. Mr. Weir testified at pp. 725-26 of the transcript with respect to the priority of access to the fishery as follows: Q. Now, when you say they have "first right to the resource", wonder if you could elaborate on that and tell the Court what you mean by that. A. Well, I'm not totally versed in Sparrow, but there is our policy or the system where the conservation if am managing lake for an allocation, the first thing is conservation. The second would be to the treaty fishermen, and the third level would be to the domestic. Following that we would maintain and then this is based on regional approach, the sport and commercial users. It is against the foregoing background that the question of whether the domestic licence requirement to fish for food with net imposed on Metis persons, is prima facie infringement of their right to fish for food. The trial judge made reference in his decision to the equality provisions of the Charter in s. 15 of the Charter, and decided there was an infringement based on the fact Metis and treaty Indians were treated unequally. One can agree with the Crown that thetrial judge should not have based his decision on the Charterwhen the same was not part of the argument made before himwithout first giving counsel the right to address theargument. One can also agree with the Crown, that resort to the Charter was unnecessary, and the question of infringement should have been decided on the basis of the criteria set out in R. v. Sparrow, supra at p. 1112, wherein the Court stated: To determine whether the fishing rights have been interfered with such as to constitute prima facie infringement of s. 35(1), certain questions must be asked. First, is the limitation unreasonable? Second, does the regulation impose undue hardship? Third, does the regulation deny to the holders of the right their preferred means of exercising that right? The onus of proving prima facie infringement lies on the individual or group challenging the legislation. In R. v. Gladstone, at p. 757, the SCC went on to explain: The questions asked by the Court in Sparrow do not define the concept of prima facie infringement; they only point to factors which will indicate that such an infringement has taken place. Simply because one of those questions is answered in the negative will not prohibit finding by court that prima facie infringement has taken place; it will just be one factor for court to consider in its determination of whether there has been prima facie infringement. R. v. Nikal, 1996 CanLII 245 (SCC), [1996] S.C.R. 1013 makes two points with respect to the issue of infringement: (1) The requirement of licence is not by itself an infringement, unless it can only be obtained with great difficulty or (2) While the requirement of licence may not constitute an infringement, the conditions of the licence may do so. The domestic food fishing licence that Metis are required to obtain under the Saskatchewan Regulations in order to exercise their aboriginal right to fish for food, is not one that is necessarily available to all Metis persons in the geographical area delineated by the trial judge. The evidence establishes that the issuance of such licence is discretionary. One of the conditions of the licence is that the Metis person satisfy conservation officer who "will determine the need of the individual for the purpose of domestic fishing". While there is no evidence that such licence has ever been refused to Metis person, the Supreme Court has said on number of occasions, that favourable exercise of administrative discretion by the Crown cannot substitute for Regulation which otherwise constitutes an infringement. As noted in R. v. Adams, supra, at p. 132: In light of the Crown's unique fiduciary obligations towards aboriginal peoples, Parliament may not simply adopt an unstructured discretionary administrative regime which risks infringing aboriginal rights in substantial number of applications in the absence of some explicit guidance. If statute confers an administrative discretion which may carry significant consequences for the exercise of an aboriginal right, the statute or its delegate regulations must outline specific criteria for the granting or refusal of that discretion which seek to accommodate the existence of aboriginal rights. In the absence of such specific guidance, the statute will fail to provide representatives of the Crown with sufficient directives to fulfil their fiduciary duties, and the statute will be found to represent an infringement of aboriginal rights under the Sparrow test. The discretionary aspect of licence issuance to Metis persons who wish to fish domestically does constitute an infringement because it has the potential to deny their right to fish for food, and does not provide specific criteria for the granting or refusal of the licence. The only justifiable criteria that could be contained in such licence would be criteria related to conservation. With respect to the $5.00 fee charged for domestic food fishing licence, no evidence was led as to the reason for the fee. It does seem strange that for one net on one lake $5.00 fee is charged when the object is fishing for food, and commercial fisherman pays only $10.00 for ten nets. The respondents did not lead evidence suggesting the $5.00 fee was hardship. However, the evidence does establish that treaty Indian persons are not charged fee with respect to the licence issued to them for food fishing which suggests the Department regards such fee to be hardship for treaty Indian persons. If this is so, it would constitute sufficient reason to hold that the charging of fee to Metis persons for the same food fishing right, does constitute hardship. A third consideration which does not arise from theregulatory regime, is the departmental policy which places ahigher priority on treaty Indian fishing than domestic licencefood fishing for Metis persons. In any one situation, Metis persons could be denied the right to fish for food in the interests of conservation while treaty Indian persons might continue to fish. As noted above, there is no basis todistinguish between Indian and Metis aboriginal groups withrespect to the right to fish for food. This policy constitutesan infringement. Once an infringement is found, the onus shifts to the Crown to demonstrate that the regulation(s) is justifiable. As noted in R. v. Sparrow, supra, at p. 1121: If an infringement were found, the onus would shift to the Crown which would have to demonstrate that the regulation is justifiable. To that end, the Crown would have to show that there is no underlying unconstitutional objective such as shifting more of the resource to user group that ranks below the Musqueam. Further, it would have to show that the regulation sought to be imposed is required to accomplish the needed limitation. The infringements of the Metis aboriginal right tofish for food found in the foregoing, cannot be justified bythe Crown, because the infringements do not relate to anyidentifiable objective that makes such infringementsnecessary. For the foregoing reasons, this ground of appeal is dismissed. Ground (Identification of nets) This ground of appeal takes issue with finding that the requirement in s. 27 that net fishermen stake and identify themselves by licence number with respect to such nets does not constitute prima facie infringement of the Metis' right to fish for food. One can agree with the Crown that the staking and marking of nets as required by Regulation 27 set out in the foregoing, would normally not be an infringement, and can be justified on the conservation basis of identifying persons qualified to fish in any particular area and the purpose for such fishing. However, once it has been held that thedomestic food fishing licence requirement infringes theaboriginal right to fish for food, it follows that theRegulation requiring a person to legibly mark that licencenumber on the stakes is also an infringement that cannot bejustified, for the simple reason there is no requirement on aMetis person in the geographical area delineated by the trialjudge, to have the licence. For the foregoing reason, this ground of appeal is Addendum Prior to the hearing of the appeal, Crown counsel served and filed notice of motion seeking an order that certain articles and reports be deleted from the respondents' book of authorities, and that references to such articles and reports in the respondents' factum be struck out on the basis that the articles and reports referred to matters of evidence, not argument. The position of the Crown was that any such evidence must first be introduced at trial where its admissibility can be challenged, and not on appeal. Argument on this matter was reserved. In disposing of this appeal, it was not necessary to refer to any of the articles and reports. As result, it is not considered appropriate to rule in "bulk" manner on the use, if any, that may be made of such articles and reports on appeal. The motion is dismissed without commenting on the validity of the point raised. The appeal is dismissed. The respondents are entitled to their taxable
The two accused, both Metis, were separately charged in 1993 with six fishing offences relating to the use of nets. The accused who had ten nets on two lakes at the time of seizure admitted to being commercial fisherman. The Crown had stated to the defence that fishing for commercial purposes would not be an issue. The trial judge dismissed the defence motion for a direction that the Crown comply with his undertaking that the issue was whether the Metis of Northwestern Saskatchewan have an aboriginal right to fish for food. The Provincial Court Judge found both accused not guilty on three of the counts on the basis of standard criminal law defences but would have convicted on the other three charges but for the constitutional defence. The Crown appealed the acquittals based on the constitutional defence. Grounds for appeal included failure to distinguish between an Aboriginal right to fish for food and for commercial purposes; failure to find the accused were engaged in commercial fishing and that neither the accused nor their ancestors possessed an Aboriginal right to fish for commercial purposes; by concluding that scrip issued to Metis pursuant to s6(f) of the Dominion Lands Act and Order-Council did not extinguish any Aboriginal right to fish for food or commercial purposes; the trial judge erred by failing to conclude that the requirement to obtain a licence before fishing with a net was not a prima facie infringement of an existing aboriginal right to fish for food; in acquitting the accused when neither the Aboriginal rights defence nor equality rights defence had any application to the charge. The Saskatchewan Metis Nation and National Council were granted Intervenor status. HELD: 1)The first three grounds were dismissed. The trial judge found that the Crown had not breached an undertaking, nor misrepresented its position with respect to the constitutional issue but implicitly found that the respondents had been prejudiced through the misunderstanding during pre-trial communications between council as to the issues that would be argued during trial. The trial judge was entitled to find as fact that it was not the intention of the parties to confine the issue to commercial fishing. 2)Once it was determined the actual activity was fishing for the purpose of selling the fish, the only rights that could be said to be infringed were either the right to exchange fish for money or goods or the right to fish commercially (Gladstone). The aboriginal right to fish for food was no longer relevant because the evidence did not establish that as the activity they were engaged in. 3)The trial judge's finding that an Aboriginal right to fish existed in Metis persons of northwest Saskatchewan separate and apart from the issue of aboriginal title was one he was entitled to make and should not be disturbed. The case law makes it perfectly clear that aboriginal rights are site specific and the finding of a right in one group in one location does not establish the same right for another group in another location (Van der Peet). 4)There is no basis to distinguish between Indian and Metis people when considering whether a licensing requirement constitutes an infringement of the aboriginal right to fish for food. 5)The departmental policy which placed a higher priority on treaty Indian fishing than domestic licence food fishing for Metis persons constituted an infringement. Once an infringement is found the onus shifts to the Crown to demonstrate that the regulation is justifiable. The infringements could not be justified because they did not relate to any identifiable objective that made them necessary. 6)The trial judge should not have based his decision on the Charter when it was not part of the argument before him without first giving counsel the right to address the argument. 7)Since there is no requirement on a Metis person in the geographical area delineated to have a licence it followed that Regulation 27 requiring a person to legibly mark the licence number of the stakes was also an infringement that could not be justified.