Patricia Kelly's fight with the federal government over 396 sockeye salmon has spanned eight-and-a-half years, included 200-plus court appearances and has likely cost taxpayers hundreds of thousands of dollars.
But neither Kelly nor the Crown will back down from a court battle that one side says is about a simple fishing violation and the other says is about the very nature of aboriginal rights and entitlement in Canada.
The Sto: lo woman was charged in 2004 with "purchasing, selling and possession of fish against the fisheries act."
She pleaded not guilty and was convicted on July 3, 2008.
She then put forth an aboriginal rights defence, which she has been in court trying to prove since then.
Kelly appeared in Chilliwack court on Jan. 14 to apply to have Crown prosecutor Finn Jensen declared to be in a conflict of interest.
Throughout, Kelly has defended herself after being rejected for legal aid in 2005 and again in 2011. She has had some assistance, including that of University of Lethbridge globalization studies professor Anthony Hall, who helped her pen a 150-page treatise, which was used as the basis for her argument in court Monday.
Kelly argued to Chief Justice Thomas Crabtree that Jensen, in acting on behalf of the Government of Canada and the Crown, has had a tendency "to deny and negate, rather than recognize and affirm, the existence of aboriginal and treaty rights as stipulated by section 35 of the Constitution Act, 1982."
Kelly has relied upon Sparrow, a 1990 unanimous Supreme Court of Canada decision that found when Musqueam Band member Ronald Sparrow was caught fishing with a net longer than allowed in the fisheries act he was exercising an inherent aboriginal right.
Her defence focused on the part of the decision that found that government has a fiduciary responsibility to aboriginal peoples and there should be some "restraint on the exercise of sovereign power."
In court Monday, she compared Jensen's behaviour as like "seeing a pit bull chasing a little poodle."
Jensen argued that the inherent adversarial setting of the courtroom may be difficult for the layperson to understand, but it does not constitute a conflict on his part.
"There is no evidential basis put forward by Ms. Kelly to suggest the Crown should not continue with this prosecution," Jensen said.
Another bone of contention throughout the court appearances has been Kelly's mug shot appearing in a June 12, 2009, Crime Stoppers advertisement in the Times.
The ad said Kelly was wanted by the RCMP for "purchasing, selling and possession of fish against the fisheries act."
At the time, First Nations leaders were outraged.
"How does a woman from our community become a criminal for practising her right to fish," Grand Chief Doug Kelly (no relation to Patricia) said in July 2009. At that time, Kelly was chair of the First Nations Fisheries Council and was on the political executive of the First Nations Summit.
Sto: lo Nation president Chief Joe Hall agreed.
"There's got to be a more fair way of dealing with these issues rather than turning well-meaning and honest people into what's being perceived as hardened criminals," Hall said in 2009.
In court Monday, Kelly brought the Crime Stoppers ad up once again as evidence she was being criminalized as part of a systemic campaign against aboriginal peoples.
Jensen denied his office had anything to do with Kelly's appearance in Crime Stoppers and maintained the charge has always been a routine fisheries act violation, never a criminal proceeding.
"If I've heard it once, I've heard it 100 times: 'This process criminalizes Ms. Kelly,'" Jensen said, adding, "this is not a crime."
Crabtree told Kelly he hoped to have a decision to her in writing by the middle of March.
Kelly is then scheduled to appear in court May 9, 10, 13 and 14 to deal with the aboriginal rights defence.
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