R v Francis, 2003 NSPC 28

This case was heard in the Nova Scotia Provincial Court.

The applicants were a group of Mi'kmaw fishers who were members of either the Indian Brook Reserve or the Acadian Band. The group had been fishing lobster in St. Mary's Bay and were charged under the Aboriginal Fishing Licenses Regulations and the Fisheries Act for fishing without authorization, illegal possession of lobster, obstruction of a fisheries officer, and fishing without a license.

The applicants brought a motion seeking state-funded legal counsel. They argued that state-funded legal representation was necessary, given the complicated nature of their defence, which was based on Aboriginal or treaty rights. In response to their motion, the Government of Canada argued that state-funded counsel was not needed because Aboriginal and treaty rights would not provide defences to at least one of the charges (obstruction). The Government also argued that because Aboriginal and treaty rights are communal, there should be evidence of community support for the applicants.

The Court decided that the Government’s argument on obstruction was correct, and the applicants charged under it could not receive state-funded counsel as requested.

The Court also decided that the motion for state-funded counsel for the Indian Brook community members had to fail because the Court did not see enough of a connection between Indian Brook and the lobster fishery in St. Mary's Bay to support Indian Brook community members' claims to have an Aboriginal right to fish lobster in St. Mary's Bay.

The Court decided that the motion for state-funded counsel for the Acadian Band members would succeed because it there was an “air of reality” to those community members' assertions of Aboriginal rights to fish in the area. For that reason, the Court agreed to order a stay of proceedings that would pause the trial until the accuseds who were entitled to state-funded counsel could get it.

View the Decision on CanLII: https://www.canlii.org/en/ns/nspc/doc/2007/2007nspc28/2007nspc28.html

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