Skidegate man defends himself on abalone charge

  • Apr. 21, 2008 6:00 a.m.

By Alex Rinfret–Provincial court judge Herman Seidemann will decide by June 3 whether statements given by Skidegate resident Gary Russ to a Department of Fisheries and Oceans employee almost three years ago can be used as evidence in the crown’s case against Mr. Russ, who is facing charges of harvesting abalone, a threatened species under Canada’s Species At Risk Act. Judge Seidemann has already excluded one key piece of evidence in the case, a plastic bag containing 14 pieces of abalone. In a decision released last month, he said that a Parks Canada warden did not have the authority to open it in June 2005 and that the action had violated Mr. Russ’s privacy rights. In Masset provincial court on Wednesday (April 16), Judge Seidemann listened to arguments about whether Mr. Russ’s statement should also be excluded. The statement was made by Mr. Russ to DFO employee Linda Higgins. The interview was conducted in the DFO office in Queen Charlotte on Sept. 13, 2005. Mr. Russ told the court that the only reason he agreed to come into the DFO office and answer questions was because his package had been opened and seized. He was trying to find out what had happened to it and also wanted to make sure that his wife, whose name was on the package, did not get involved in any possible charges. “I felt strongly they would go ahead and charge me so I went in and gave the interview,” Mr. Russ said. “The only reason I went in for the interview was because of the illegal opening of the package.” He also told the court that it was difficult to remember the exact circumstances which led to the interview because so much time has passed. Mr. Russ, who does not have a lawyer and is representing himself, said that if the package cannot be used as evidence, then the interview should also not be allowed, because the two are linked. Crown prosecutor Michelle Ball said the bag and the interview may be linked, but the interview can also be considered as a separate piece of evidence. The interview took place several months after the illegal seizure, and it was Mr. Russ himself who initiated contact with the DFO office, Ms Ball said. The interview was voluntary, Mr. Russ brought notes with him, and the tone of the proceedings is professional and police, she said. Judge Seidemann asked Ms Ball whether it would be a fair characterization of Mr. Russ’s statement to say that the only parts of it which interest the prosecutors are the references to the illegally seized parcel. Ms Ball responded that either the entire interview derives from the seizure or it does not. She presented several examples of other cases where evidence obtained subsequent to a breach had been allowed. The case started in June 2005, when Mr. Russ was working as a Haida Gwaii Watchman at Windy Bay on Lyell Island. He handed a package to Parks Canada workers on the Gwaii Haanas ship when it called in at the site, and asked them to deliver it to his wife in Skidegate. Suspecting it was abalone, a park warden opened the package and then handed it over to a fishery officer. In 2006, Mr. Russ was charged under the Species At Risk Act. Mr. Russ has said repeatedly that he has a right as a Haida citizen to harvest small amounts of abalone for family use. All abalone harvesting on the coast of BC has been banned since 1990 in an effort to protect the species, whose numbers plunged dramatically following two decades of commercial harvest authorized by DFO. “I have never, ever agreed with the process by which the Department of Fisheries and Oceans manages our resources,” he said. “I have aboriginal rights. Haida have aboriginal title.” These issues may be examined more closely if the case goes to trial. Judge Seidemann said he will schedule the next court date, if needed, following his decision on June 3. Mr. Russ said it has been challenging representing himself in court. On Wednesday, he showed the judge the large binder of case law which crown lawyers had sent him, saying it was extremely difficult to read. “The letter of the law should be plain and simple for all to understand,” he said. “That would be desirable,” Judge Seidemann responded, adding that Mr. Russ is not the first person to get a headache while trying to read legal documents.

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