IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Kristopher Lawrence Nichols is charged with two counts of fishing not under the authority of a licence issued under the Pacific Fishery Regulations, 1993; the Fishery (General) Regulations; or the Aboriginal Communal Fishing License Regulations and two counts of unlawfully possessing prawns caught in contravention of the Fisheries Act or Regulations as a result of fishing activities that occurred between May 2012 and October 2012.

[2]           On January 21, 2015, this Court found it was satisfied beyond a reasonable doubt that Mr. Nichols was fishing as alleged and was in possession of prawns as alleged.  This Court also found that Mr. Nichols had not established a defence to the charges pursuant to Section 78.6(6) of the Fisheries Act and that subject to a determination of Mr. Nichols’ rights under Section 35 of the Constitution Act 1982 (“Section 35”), the charges had been proven beyond a reasonable doubt.

[3]           This Court determined that the next phase of the proceedings would determine the issue of whether Mr. Nichols has a Section 35 right to fish.

[4]           This is an Application by the Shíshálh (also known as the Sechelt Indian Band or Sechelt Band) to intervene in these proceedings.  The remedy Shíshálh is seeking is as follows:

[5]           The Crown and Mr. Nichols oppose the Application.

[6]           A Provincial Court Judge in British Columbia, sitting as a trial judge, has no jurisdiction to grant intervenor status (except under the Constitutional Question Act) whether or not constitutional issues are at stake [see R. v. Duncan, 1995 CanLII 1077 (BCCA), para. 41].  See also R. v. Kapp, 2004 BCSC 1143, para. 14 and R. v. Giesbrecht, 2014 MBPC 58 CanLII.

[7]           Shíshálh submits that the narrow approach to the jurisdiction of the provincial court adopted by the British Columbia Court of Appeal in R. v. Duncan should no longer be followed given the broader approach adopted by the Supreme Court of Canada and courts in other jurisdictions.  Shíshálh further submits in other jurisdictions provincial courts have exercised their jurisdiction to grant third parties intervenor status.  See R. v. Chemama, [2008] O.J. No. 1124 (Ct. Jus.).  Shíshálh also submits that the Court in Chemama concluded the majority opinion in R. v. Duncan “reflects an overly-narrow and now almost universally discredited interpretation of the powers of a provincial court…”  Shíshálh notes that the Court in Chemama found that the more correct or at least contemporary analysis was that of the dissenting judge in Duncan.  In Duncan, Wood J.A. concluded that the decision to grant intervenor status represents the exercise of a power necessarily incidental to the exercise of the provincial court’s general jurisdiction.  Shíshálh argues courts have been clear that statutory courts are not confined to only granting remedies assigned by statute.  It argues this Court’s power to grant Shíshálh intervenor status arises out of this Court’s implicit jurisdiction to function as a court of law, which includes the possibility of hearing from a third party intervenor as well from the power to control its own process in order to administer justice fairly and effectively.

[8]           Despite the able submissions of counsel, I agree with Crown counsel and Mr. Nichols’ counsel that I am bound by the decision in Duncan.  The proposed intervention in this case relates to an issue integral to the case and not a procedural issue.  The issue in this case is whether Mr. Nichols has a right.  No determination is being made regarding title.  I agree with the Crown submission that the Criminal Code is not silent about intervention.  Intervention is provided for in Sections 579, 579.01 and 579.1 of the Criminal Code.  It is my judgment that absent a legislative provision enabling the provincial court to grant intervenor status to a private party on issues integral to the case, that a provincial court judge does not have jurisdiction to grant such status in a criminal proceeding.