The prawn fishery is highly regulated throughout British Columbia to ensure sustainability, conservation and protection. Licences are required for commercial and recreational prawn fishing. Communal fishing licences may also be issued to First Nations as defined in the regulations. That is the backdrop of a recent ruling from the British Columbia Supreme Court ordering a new trial for two indigenous men convicted of fishing offences at a trial marred by prejudgment in a mid-trial ruling and rancorous sparring between the trial judge and defence counsel that undermined the presumption of judicial impartiality.

1. Introduction

On December 2, 2019, Charles Nichols and Kristopher Nichols, father and son, were convicted of multiple offences under the Fisheries Act, a federal statute of Canada. (here) The offences arose from allegations they fished prawn during a closed time without a licence near Nelson Island, in the area of Pender Harbour, British Columbia. Kristopher Nichols was also convicted of obstructing a fisheries officer contrary to s. 62 of the Act. (here) Following the trial before Judge Joanne Challenger, in the Provincial Court of British Columbia, at Sechelt, they were both fined and Charles Nichols’ boat, the Breakaway, was ordered forfeit. They appealed.

2. Background

The defendants asserted they had an Aboriginal right to fish as members of the Pender Harbour First Nation. However, the Pender Harbour First Nation has no status under the Indian Act which governs the relationship between Canada and its indigenous peoples. At the time of the offences, they did not hold licences authorizing them to fish prawn. There was evidence that Kristopher Nichols had fished under the communal licence of the Shishálh Nation but that ended before the events giving rise to the charges. Although the defendants claimed an Aboriginal right to fish, it has never been litigated and their assertion has never been tested.

The Crown submitted, at the beginning of the trial, that Kristopher Nichols, his father and maybe other family members had “created” the Pender Harbour First Nation to bypass the Shishláh Nation’s enforcement of a four-trap limit under its communal licence. The Crown asserted in the opening address that, with respect to motive, the Nicholses “want to fish as much prawn as they can to make as much money as they can.” The Crown would later submit, on appeal, that the defendants’ belief in a right to fish without constraints “would be ill-advised on the current state of the law.”

Sarah Rauch, trial counsel for the defendants, gave timely notice that two issues would be advanced at trial. First, an application would be brought for the exclusion of evidence under s. 24(2) of the Charter of Rights and Freedoms stemming from alleged violations of the defendants’ constitutional rights on arrest. Second, “an Aboriginal rights defence” would be mounted under s. 35 of the Constitution Act, 1982 “subject to obtaining the necessary funding”. It was agreed that the Aboriginal rights defence would be dealt with at the end of the trial if Judge Challenger found the offences had been proved beyond a reasonable doubt.

At the commencement of the Charter motion, the Crown brought a Vukelich application for summary dismissal of certain aspects of the defendants’ Charter application. This case preceded the Supreme Court of Canada’s ruling in R. v. Haevischer that I discussed in a previous post to On The Wire. (here) The ruling in Haevischer substantially narrowed the scope of such preliminary applications. The defendants right to fish and recognition of the Pender Harbour First Nation figured prominently in the Vukelich hearing as they were referenced in the Charter Notice and written submissions. It is a contentious issue as the case law is murky on whether a licencing scheme will constitute a prima facie infringement of an Aboriginal right to fish. (here and here)

Judge Challenger ruled on the Crown’s Vukelich application that the Charter motion, involving issues of the use of force on arrest, search and seizure and the right to counsel on arrest could proceed. The claim invoking the defendants’ aboriginal rights under s. 35 of the Constitution, framed under s. 7 of the Charter, would be dealt with at the end of the trial. Judge Challenger ultimately dismissed the application to exclude evidence and the aboriginal rights defence was never pursued. An application for an adjournment to address issues regarding the aboriginal rights defence was denied because a Notice of Constitutional Question had not been filed. The convictions followed.

3. The Appeal

The offences were punishable on summary conviction so the appeal came before a single judge of the British Columbia Supreme Court. On September 3, 2025, Justice Liliane Bantourakis released the ruling indexed as R. v. Nichols setting aside the convictions and ordering a new trial. (here) The defendants had argued that “the judge’s interruptions, frustration and alleged hostility impeded defence counsel and, on an objective view of the trial as a whole, overwhelmed the process resulting in a miscarriage of justice.” The conduct of Judge Challenger throughout the Vukelich hearing and the Charter motion thus became the centrepiece of the appeal.

The core issue was whether the trial was conducted in a manner that gave rise to an appearance of unfairness. As the Supreme Court of Canada said in R. v. Tayo Tompoube, “[t]he question […] is whether the irregularity was so severe that it rendered the trial unfair or created the appearance of unfairness.” (here) The test is whether a reasonable observer would come to a conclusion of “premature decision making”. (here) Where undue intervention by the trial judge is at issue, the ultimate question is “whether the comments and interventions would create the appearance of an unfair trial to a reasonable person present throughout the proceedings.” (here) It is a high standard.

In the mid-trial ruling dismissing the evidence exclusion motion, Judge Challenger made reference to “the fact that the Pender Harbour First Nation did not hold an Aboriginal communal licence and thus could not issue permits.” She then referred to R. v. Nikal which the Crown submitted stood for the proposition that an Aboriginal right to fish cannot be exercised without a permit or licence. It appears from the appellate ruling that Judge Challenger made no reference to other authorities. She returned to these issues under the heading “Credibility and Findings of Fact” where she found that neither of the appellants, who testified on the motion, were credible witnesses.

Judge Challenger agreed with the Crown that the Nichols family’s belief that, as indigenous persons, they were entitled to fish without constraints was ill-advised and Kristopher Nichols’ previous run-ins with the law did nothing to change his belief. “I find the persistence of their unfounded belief in their purported legal right to fish has likely resulted in ongoing cognitive dissonance and distress,” she said. “Their evidence supports that both accused, but especially Kristopher Nichols, are now experiencing paranoid ideation.” [Emphasis in original] On appeal, Justice Bantourakis observed that these passages suggest Judge Challenger formed the view that the defendants’ belief in their right to fish was “unfounded”. Indeed, that is exactly what the reasons say.

Justice Bantourakis was therefore satisfied that a reasonable and informed observer would find cogent evidence in the mid-trial ruling on the Charter motion that Judge Challenger “was no longer impartial on a central issue at trial, because she had reached firm views about the intended s. 35 Aboriginal rights defence or aspects of it prematurely, namely that the Nicholses’ belief in their right to fish was unfounded.” The reasons on the Charter motion, however, had to be assessed contextually within the entire record which therefore raised the contentious exchanges that developed between Judge Challenger and defence counsel as the trial unfolded.

The transcript revealed that, as the exchanges between the trial judge and defence counsel developed, Ms. Rauch said she was “experienc[ing]” the court’s interventions “as yelling” and asked several times to be allowed to complete an answer. At one point, Ms. Rauch said the dynamics in the courtroom prompted her to seek advice from the Law Society of British Columbia. In the appellate ruling, Justice Bantourakis found that Ms. Rauch’s comment that Judge Challenger was “yelling” was borne out by the audio recording of the proceedings. Justice Bantourakis found that Judge Challenger’s questions of Ms. Rauch “became so relentless that it appears at a certain point to have become impossible to answer.”

Justice Bantourakis therefore concluded “there was a profound and mutual loss of trust between the judge and defence that ended up affecting the entire course of proceedings.” The combined effect of the mid-trial ruling on the Charter motion and the interactions between the court and defence counsel “resulted in an unfair trial.” A reasonable and informed observer “would conclude it is likely that the judge had reached a firm view regarding the appellants’ intended s. 35 Aboriginal rights defence, or aspects of it, by the end of the Charter voir dire, and was likely no longer open to persuasion.”

4. Conclusion

Appellate courts are generally reluctant to step into the fray where things got testy between a trial judge and counsel. As the Ontario Court of Appeal said in Kelly v. Palazzo, “[i]t takes much more than a demonstration of judicial impatience with counsel or even downright rudeness to dispel the strong presumption of impartiality.” (here) However, if the high bar for rebutting the presumption of judicial impartiality is met, “it is important that a new trial be ordered, even where the verdict of guilty is not unreasonable having regard to the evidence”. (here) As the Supreme Court of Canada said in R v S (RD), “[a] reasonable apprehension of bias colours the entire trial proceedings and cannot be cured by the correctness of the subsequent decision.” (here)