I have no doubt that creative counsel could enunciate any number of ‘lesser rights’ lying on the spectrum between harvesting salmon for subsistence purposes (i.e., food) and harvesting and trading salmon commercially. (In Ahousaht Indian Band v. Canada (Attorney General) 2009 BCSC 1494, for example, the plaintiffs claimed a “spectrum” of rights in their pleading, set forth at para. 480 of Garson J.’s reasons.) The question, however, is whether the trial judge here erred in exercising her discretion not to consider some lesser right (which counsel describes as “sale to sustain the community”), in light of the pleadings before her and the course the trial had taken. She considered that it was too late for the appellants to seek such a lesser right at the late stage at which it was raised. This was a ‘judgement call’ which the trial judge was uniquely positioned to make. She obviously knew what arguments had been advanced over the course of the trial, and was better able than we are to gauge what prejudice, if any, the defendant Canada would suffer if she acceded to the appellants’ late articulation of an intermediate right. To quote from Solosky v. The Queen 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821, she knew by the end of the trial what the “real issue” was.
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