Mi’kmaw women appeal for state-appointed counsel against fishing charges

Months after Mi’kmaq fishery rights came to a violent head in southwestern Nova Scotia, two Mi’kmaw women are back in court to argue for state-funded counsel to help them in a trial involving Indigenous fishing rights. 

Jolene Holly Marr and Frances Eileen Bignell came before the Nova Scotia Court of Appeal on Tuesday to appeal an earlier Supreme Court of Nova Scotia decision, which said they would not receive state-funded counsel for a trial on charges from 2015.

The court heard from lawyers Sarah Shiels and Richard Norman, who represent the appellants, and Mark Covan for the Crown.

Marr and Bignell from Sipekne’katik First Nation are facing charges from October 2015 and October 2016 when they allegedly caught more than 60 lobsters in one day, which breached section seven of the Aboriginal Communal Fishing Licences Regulations. Marr was also charged with obstructing an officer. 

A 2019 decision from Justice Ann E. Smith noted both women can access lobster through the food, social and ceremonial (FSC) fishery for lobster in Lobster Fishing Area (LFA) 34 which includes the waters off Shelburne, Yarmouth, and Digby counties. The limit is 60 lobsters per person, per day.

The trial from 2015 was originally adjourned by Judge Claudine MacDonald in 2018 so Marr and Bignell could apply for Rowbotham applications. The trial on the 2016 charges has been delayed also in light of this application.

This Rowbotham application, if successful, appoints state-funded counsel to the candidate. 

According to Justice Smith’s decision, to be considered for Rowbotham application the case must be proven to be serious, the court proceedings considered lengthy and complex, and the charged person’s ability to defend themselves must be questionable.

Seriousness and complexity

In Tuesday’s appeal, Marr and Bignell were asking for Smith’s 2019 decision to be overturned since she ruled that no state-funded counsel would be provided.

Smith said she was not persuaded the case the respondents laid out was “factually and legally relevant to the charges,” according to her decision. The Crown was the appellant in the 2019 hearing before Smith.

In her decision, Smith said these charges, in comparison with other court cases interacting with Indigenous fishing rights, were not “serious” enough for them to require state funded counsel.

Smith said she accepted the Crown’s arguments that the respondents were “conflating” the seriousness of charges and the seriousness of “the potential constitutional defence.”

In her decision, Smith cited earlier case law, which, “suggests that merely asserting an Aboriginal or treaty rights defence in response to a fisheries regulatory charge is not a sufficient basis to find seriousness or complexity without some evidence that the situation is outside the Minister’s regulatory power.”

Smith concluded “that the trial judge erred in finding that this matter was sufficiently serious and complex that state-funded counsel was required.”

This sparked the need for the latest appeal, which both Marr and Bignell stated in affidavits referenced in a decision from Justice John Bodurtha in May 2019.

They said they did not feel they could represent themselves in a trial.

“I believe that if I was provided with a lawyer who understood my Treaty rights, and was properly informed about my case, that I could defend myself against the fishing charges,” said Marr in a written statement.

In Smith’s decision, she used sections 7 and 11(d) from the Canadian Charter of Rights and Freedoms to weigh the level of seriousness on whether state-funded counsel is required.

Since both women are not facing jail time, Smith said their right to life liberty, and security are not violated. And, because the courts believe the charges aren’t serious enough for counsel to be present during trial, they are innocent until they are proven guilty.    

Norman argued that these rights may not be violated, but others like Section 35 of the Constitution Act can. 

Section 35 recognizes and reaffirms an Indigenous person’s existing rights, which would include the rights in Treaties.

Norman said these rights “sometimes conflict” with regulations involving the fisheries. 

“When they do, this can be a very serious charge for an Indigenous person,” he said. 

Right to a moderate livelihood

Norman argued the court should look beyond the scope of whether a person’s liberty is going to be impacted. These charges may not mean jail time, he said, but can have an effect on how both women make their livelihood. 

As this case has to do with Indigenous fishing rights, the 1999 Marshall decision was brought up as evidence by Shiels. In this decision, the Supreme Court of Canada upheld the Mi’kmaq Treaty right to fish for what is called a “moderate livelihood”.

This past fall, Sipekne’katik First Nation’s lobster harvesters began their season in LFA 34, and were quickly contested and harassed by non-Indigenous commercial fishermen from the surrounding areas. The band said they were exercising their Treaty right to fish for a moderate livelihood.

The term “moderate livelihood” has still not been defined by the federal government, or Nova Scotia’s provincial government.

Nova Scotia’s Premier Stephen McNeil tweeted that this is something the federal government’s Department of Fisheries and Oceans has to define before the provincial government can do anything. 

In response to questions from Tuesday’s panel on the complexity of the trial, Shiels cited the Treaty of 1752 and said “the right to fish as usual has not been determined.”

“Part of what makes the defence complex, in this case, is the absence of relevant case laws,” Shiels said.

A complex defence is one of the arguments made by Shiels and Norman to show that state-funded counsel should be given to properly argue the case at trial.

Shiels said the “seizure of catch” which occurred when charges were laid in both years, changes things.

When Indigenous people have resources taken away that they are “entitled to,” Shiels said, this should make the charges more serious.

Covan, the Crown attorney, said Smith’s decision actually corrected errors from the lower courts.

In regards to the case trial against the two women, he said “the Crown’s case is not complex, it’s not serious.”

Covan said the appellants have argued that this is a complex case without properly providing evidence to support the claim.

Three years of appeals

After having the trial on the 2015 charges postponed in October 2018, an appeal was filed by the Crown that November 2018. This appeal was to reverse MacDonald’s stay of trial.

In his May 2019 decision, Bodurtha said that Marr and Bignell should be provided counsel.

“The Respondents’ trial will be complex, and they should have the benefit of counsel. The Respondents’ application for counsel pursuant to s. 684 of the Criminal Code is granted,” he said.

The Crown appealed again after this May 2019 Bodurtha decision. The appeal was heard on June 26, 2019 and the written decision from Smith was released in November 2019.

An application to have state-assigned counsel for Tuesday’s appeal hearing was also heard by Justice Peter Bryson on March 12, 2020.

In a March 23, 2020 decision, Bryson said “with the assistance of the court, I am confident that their arguments will be sufficiently articulated for the court to decide the case.” He dismissed Marr and Bignell’s appeal for this counsel on the grounds that they were intelligent and capable enough to argue their own appeal.

Tuesday’s panel consisted of Justice Duncan Beveridge, Justice Peter Bryson, and Justice Cindy Bourgeois, who will give their decision at a later date.