BACKGROUNDER # 2

DEFENCE: You agree with me, don't you, that so far as you were aware the purpose of his having his net in the water was to protest the A.F.S. pilot sales fishery? (page 6: line 26)

COULTISH: That would be the purpose of having the net into the water, yes. (6:28)

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DEFENCE: Now as for any risk of these protests occurring again, something the Court may be concerned with, have the D.F.O. determined what they plan to do in the future in 1998 fishery, given that the commercial aspect of the A.F.S. fishery has been found to be unauthorized and invalid? (8:3)

COULTISH: I suspect that there will be talks held. I know that there's been discussions held recently. But as to where the Department plans to go with this, I have no idea. I'm as interested as anybody in this court is, as to where this is going to go. (8:8)

DEFENCE: Because of course if the commercial aspect of the A.F.S. is not proceeded with, you wouldn't anticipate any more protests? (8:11)

COULTISH: We may see protests but it may not be by the coalition. It may be by the Aboriginal First Nations. (8:14)

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DEFENCE: I'll be asking for an absolute discharge. (8:45)

CROWN: Your Honour...the issue today before you of course is what the appropriate and just penalty is for a person in Mr. Cummins position. (9:3)

The sentence-imposed must be such as will deter Mr. Cummins and others similarly minded from committing such offenses and also to prevent a repetition of such offenses in the future. (9:12)

...the Crown's position as to what would be the appropriate sentence, it is that there should be a fine in the amount of several hundred dollars. And I will suggest a range of seven hundred to a thousand dollars plus conditions pointed at preventing a repetition of the offenses, plus forfeiture of the net that was seized by the fishery officers on October 27th, 1996. (9:24)

I will indicate that the Crown obviously is opposed to a discharge in any form... (9:27)

COURT: I'm curious. I'd like you to develop that because it seems to me, assuming for the moment that I'm right in my decision with regard to the validity of the aboriginal commercial fishery, that the other side of that coin is that Mr. Cummins might well say it was in the public interest for me to bring this into court. (9:42)

CROWN: Your finding has been that, as you've said, the commercial aspect was not valid... (10:1)

COURT: Is there a distinction between someone who breaks the law because they're at odds with government policy such as picketing an abortion clinic, saying the law may be valid but we think it's unjust, we disagree with it. You should change it and until you change it, we're going to picket. As opposed to the situation where Mr. Cummins says, "I want to challenge the validity of this legislative policy and the only way I can do that is to get into court." (10:24))

CROWN: ...Your ruling is beyond dispute... (10:41)

COURT: Well a higher court may not take that view. (10:43)

CROWN: My point is simply, I'm not in any way challenging your ruling. (10:45)

...the Crown's position is that to give Mr. Cummins an absolute discharge would be to condone that aspect of his activity...And that is detrimental to the fabric of the law and to the fabric of society. And it but that's exactly what the Courts has been. (11:27)

COURT: Would it make a difference or does it make a difference if Mr. Cummins were fishing with a view to keeping the fish and reselling them? Or the evidence in this case, merely to catch them and throw them back so that he could, for want of a better term, get a list on which he could be heard in court. (11:34)

CROWN: I'm not suggesting that Mr. Cummins on this particular occasion, was aiming to fish for a large quantity of fish that he could sell. Were that so, it would in fact bring other questions of deterrence because of the need for conservation and the other perhaps more ordinary types of factors that come into play in sentencing in cases of fishing during a closed time and over fishing and so forth. (11:43)

COURT: All right. (11:44)

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COURT: What I'm whirling around in my mind at the moment, Ms. Tobias, and I have no dispute with the principles you are citing, but whether it is a valid analogy I guess is what I'm trying to grapple with, in the sense that is Mr. Cummins breaking an established law or is he challenging the legality of ministerial decisions? (20:34)

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CROWN: Precisely and I can't over emphasize the fact that even though you found that he is right, it is not a defence to his actions... (21:5)

COURT: ...what troubles me is the fact that on other legal proceedings and even higher forums than this one, he seems to have been, for want of a better term, "wrong wad" from one place to another, either wrong court or right court but wrong procedure. It doesn't sound as if it's too easy to bring a lawful challenge. That's what's troubling me anyway. ((21:28)

CROWN: ...I'm sure he can find his way to the proper court and the proper time. And how this situation-- (21:42)

COURT: His response to that might be he finally did. (21:42)

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COURT: Can I stop you there and ask you how this particular offence might be repeated? (24:37)

CROWN: Well Mr. Cummins engaged in four other protests that he told us about. (24:39)

COURT: Well I guess what I'm getting at is Mr. Coultish's evidence, that while the Department is reviewing my decision and trying to decide what to do and if I were to suggest that they might go so far as to ignore it, I don't know. I mean I'm just trying to see how if I'm upheld say in a higher court and the aboriginal commercial fishery is in fact invalid, I'm trying to see in what circumstances you might be concerned about a repetition of the offence. That's what I'm getting at. Or are you seeking a more general kind of prohibition order, no protests? (25:4)

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CROWN: So what I'm suggesting would be appropriate is prohibiting Mr. Cummins from fishing for the purposes of protesting Fisheries policy at a time or place not permitted under the Fisheries Act or Regulations made thereto. (25:29)

COURT: Just let me get that down. Prohibit the accused from fishing-- (25:31)

CROWN: For the purpose of protesting Fisheries policy at a time or place not permitted under the Fisheries Act or Regulations made thereto. (25:33)

COURT: For the purpose of protesting Fisheries policy? (25:36)

CROWN: Yeah, policy -- well whichever. I was trying to encapsulate the concept essentially. (25:38)

COURT: All right. I want to get it in your words so then I can-- (25:40)

CROWN: Okay, my word was policy. (25:41)

COURT: --test it myself. (25:42)

CROWN: At a time or place not permitted under the Fisheries Act or Regulations made thereto. (25:42)

COURT: At a time or place not permitted? (25:45)

CROWN: Yes. (25:46)

COURT: Under the Fisheries Act? (25:47)

CROWN: Or Regulations. (26:1)

COURT: All right. I'd like to consider the wording but I at least want to get it in your words os that I can mull it over. (26:4)

CROWN: ...I suggested earlier, another potential condition is to suspend Mr. Cummins' personal commercial fishing licence for a period of time. And the period of time the Crown suggests is two years. (26:14)

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DEFENCE: ...The case of Sven Robinson defying a court injunction is a completely different case. (26:40)

Mr. Cumins was not seeking to change the law. He was seeking to have the government respect the law and to follow the law. Ms. Tobias says that he was in a good position being a parliamentarian to secure a change in the law. But he didn't want the law changed. There's no reason to change the law. (26:47)

So Mr. Cummins was not breaking the law in. order to seek a change in the law. He was seeking to have the government comply with the law. (27:14)

So his case is distinguishable against all those other cases where there were protests against a law that was valid but perceived to be unjust. (27:18)

Mr. Cummins' protest was double barrelled in a sense because it was against the law which he perceived to be unjust but also a law which he perceived to be illegal. The injustice of the law is not that far removed from the subject matter of protests by Martin Luther King and Nelson Mandella, in that it was a law which parcelled out legal rights according to race. (28:1)

In the general fishery, as Your Honour knows, the Native people participate up to about thirty percent of the salmon fishery and participate happily and proudly fishing up and down the coast. (28:13)

What happened though, they and all other commercial fishermen were barred from this pilot sales fishery in the Fraser River. That was perceived as Your Honour can imagine as being an unjust law. Imagine fishermen tied to the dock, watching a commercial fishery in operation and especially in the hard pressed times. (28:20)

The information is that in 1997, for example, the Fraser gillnet fleet, aboriginal or non aboriginal, but the commercial fleet earned about thirteen thousand dollars whereas if you take the pilot sales fish that was taken out of the resource, that cost each of them about ten thousand dollars because that's what the pilot sales fishery does. It removes fish that would otherwise be commercial fish or conservation, spawning fish. (28:30)

So it's perceived to be unjust but also, and this is important and distinguishes everything Ms. Tobias says, it was perceived to be illegal. (28:33)

Ms. Tobias says for the purpose of testing the law, there are avenues open to Mr. Cummins. But he, in my submission, exhausted those avenues. He went to the Federal Court first and Your Honour has the Originating Notice of Motion and the decision of the judge. The Originating Motion sets out what was asked for, a Quia Timet order, restraining the Minister from approving any aboriginal fishing agreement or issuing any aboriginal license which permits the sale of Fraser River sockeye. And then an order in the nature of certiorari quashing that part of the decision that permits sale. (29:1)

Mr. Cummins did follow the other avenues and sought to follow the other avenues that Ms. Tobias said he should have followed. He went to the Committee in Parliament that's charged with Scrutiny of Regulations. (31:5)

He went to the federal court and he went to the high court, the Supreme Court of B.C...He went to the courts and they did not decide the issues. It's clear from all the evidence that his purpose in protesting was to bring the matter before this court and as he said in evidence, that was his purpose and he was happy to be here and he had the issue decided. But all that evidence is relevant. The fact that it's not an unjust law that he's protesting, not only the injustice of the law, but it is also illegal invalidity. (32:18)

So what my friend, Ms. Tobias, says about the rule of law is appropriate but not in the way she puts it because what it was that Mr. Cummins was attempting to do throughout was to enforce the rule of law. To force the government to comply with the law on the basis that no one, not even the King, is above the law. (32:25)

In all his efforts in Parliament, at one point he was referred to disparagingly as "King John" in his continued support of the Magna Carta and the public fishery. This case involved an argument under the Magna Carta. As Your Honour will remember, argument also based on the Bill of Rights of 1688 is interpreted in the case of Catagas by Chief Justice Freedman of Manitoba, a case where a certain group of people in Manitoba were exempted from prosecutions by government policy. (32:36)

So there are significant issues of law here which Mr. Cummins has all along been attempting to enforce. He's not seeking to change the law but to force the government to respect the rule of law. (32:41)

...The rule of law is important. It's critical. It's the foundation of our parliamentary democracy in our society but it involves and must involve a respect for the rule of law like government officials because they are not above the law, must follow the law. (33:3)

And what we have here as Your Honour has analyzed in the judgment, a set of public regulations called the Pacific Fishery Regulations which govern commercial fishing. We have an aboriginal communal license regulation which relates to communal licenses and the communal right in this area to fish for food, social and ceremonial purposes, but government officials misusing the powers under the aboriginal regs to set up a private kind of commercial fishery. (33:13)

So the protest was not only against a law perceived to be unjust, but it was a protest against illegal government action. (33:16)

My friend at the end of her submissions, invited Your Honour to impose conditions prohibiting further protests. But, Your Honour, there will be no further protests assuming of course that the government will comply with the rule of law. (33:22)

And I think at this stage, it must be presumed that they will do so because there are presumptions. There's a presumption and it's often used in a different way but there is a presumption which I think is applicable here and can be applicable here, that the government will comply with the law. (33:28)

Your Honour has analyzed the law and no other court having accepted the issue and done so, and the law as analyzed is that the commercial fishing rights are to be dealt with under the Pacific Fishery Regs, whether that results in a government program as there have been in the past which assists the transfer of commercial fishing licenses to aboriginal people or whatever. I should say that there's no objection to that program such as that, buy back programs, transfer assistance programs to aboriginal people to get into the commercial fishing industry. There's no objection whatever to that. (33:41)

And if one assumes that the government will deal with the pressure for commercial fishing rights in a manner such as that, in a manner in other words that is in accordance with the regulations passed by the Governor in Council, then of course there will be no further protests. There will be nothing to deterrence of others. (34:1)

...And when one looks at the full dynamic here, these protests were for the purpose of bringing this matter before the court for legal determination. That has now been done. (37:5)

It's proper, in my submission, to assume that the government will take heed of the ruling of the Court and find some other way, some legitimate way of dealing with the pressure for commercial fishing privileges by these particular groups and that this pilot sales program which as the name implies, is a test program, in any event will not be implemented in the future. And that there will no longer be any reason to protest. (37:14)

...if the Department of Fisheries and Oceans were to completely ignore the ruling of the Court and ignore the imperative of the rule of law, then an interesting question would arise, if there were then further protests as one would could expect that there would be. (37:21)

Interesting question would arise, what is it appropriate to do where government officials deliberately flout the law? ((37:24)

That question doesn't arise for Your Honour at this stage because as I say, I don't think it's appropriate to assume the government officials will flout the law and that would deal with what would happen in some future case. (37:29)

...So I urge Your Honour to say that this is an appropriate case for an absolute discharge. (37:36)

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COURT: All right. I think that I have sufficient grasp of the arguments to give my decision with regard to sentence now... (37:42)

I view the fact that I convicted Mr. Cummins as what was described by the Chief Justice of British Columbia in Fallowfield as a technical violation of the law. (37:47)

It seems to me on the evidence I heard that his motives in seeking to test the validity of the regulations and policies of the Department is a case of good faith rather than bad faith. (38:4)

It is, I think, appropriate to note that the rule of law does exist, not just for individuals but also for government. (38:7)

Therefore I do not think that general deterrence requires me to penalize Mr. Cummins any further. I grant the absolute discharge on both counts. Thank you. (38:11)

March 2, 1998