R v Alexander McDonald et al, 2004 NSPC 55

This case was heard in the Nova Scotia Provincial Court and followed the motion in R. v. McDonald, 2003 NSPC 34.

The Defendant was one of a number of Indigenous fishermen who were charged with obstruction, assault, and uttering threats after fisheries officers boarded their vessel. At trial, there were two issues before the Court: first, whether evidence of an Aboriginal or treaty right was relevant to the defence of the charges; and second, whether the fisheries officers were acting in lawful execution of their duties when the Fisheries Act and its regulations had not been amended to reflect the decisions in R v Marshall (No 1), [1999] 3 S.C.R. 456 and R v Marshall (No 2), [1999] 3 S.C.R. 533.

The Court decided first that an Aboriginal or treaty right was not relevant to the defence of the charges because the Defendant relied on the defence of colour of right. The Court held that the defence of colour of right was inapplicable because it is for a factual mistake rather than a legal mistake, and relying upon a treaty or Aboriginal right is a legal argument. Furthermore, the Court concluded that the fisheries officers were applying the law as it existed, not as it might be declared, and so were in lawful execution of their duty. The Court then added that the fisheries officers were at the very least entitled to board and inspect the vessel to conclude whether the fishing was being conducted in accordance with the principles set forth in both Marshall decisions (to be allowed to engage in the commercial fishing to earn a “moderate livelihood”). Finally, the Court added that the illegal fishing charges originally set against the Defendant had been dropped. While under those charges the Defendant could rely on an Aboriginal or treaty right to fish as a defence, all three of assault, uttering threats, and obstruction fall outside the scope of the conduct those defences are supposed to protect. 

View the Decision on CanLII: https://www.canlii.org/en/ns/nspc/doc/2004/2004nspc55/2004nspc55.html

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