Saskatchewan (Director of Public Prosecutions) V

FOR EDUCATIONAL USE ONLY Page 1 2011 CarswellSask 365, 2011 SKQB 207

2011 CarswellSask 365, 2011 SKQB 207

Saskatchewan (Director of Public Prosecutions) v. Marsland

Her Majesty the Queen as Represented by the Office of the Director of Public Prosecutions and Her Majesty the Queen as Represented by the Attorney General of Saskatchewan, Appellants and Jason Cody Marsland, Re- spondent

Saskatchewan Court of Queen's Bench

D.L. Wilson J.

Judgment: May 26, 2011 Docket: Battleford Q.B.A. 06/08

Counsel: Horst H. Dahlem, Q.C., for Crown / Canada

Inez J. Cardinal, Q.C., for Attorney General (Saskatchewan)

J. Rangi G. Jeerakathil, for Accused

Subject: Natural Resources; Public; Criminal

Natural resources.

Aboriginal law.

Criminal law.

D.L. Wilson J.:

Introduction

1 The accused, Jason Cody Marsland, of Cochrane, Alberta, was charged with one count of transporting white-tailed deer from the province of Alberta to the province of Saskatchewan without a valid permit. The accused was also charged with one count of knowingly being in possession of white-tailed deer that had been transported in contravention of the federal statute regarding wild animals. These two charges relate to alleged contraventions of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, S.C. 1992, c. 52, as am. ("WAPPRIITA") and the regulations thereunder. Finally, the accused was charged with importing white-tailed deer without an import permit contrary to s. 31(a) and (b) of The Wildlife

Act, 1998, S.S. 1998, c. W-13.12. The three charges were laid after the accused was stopped on a Saskatchewan highway on September 27, 2005 and found to be in possession of five white-tailed deer. The accused was on his way to the Poundmaker Cree Nation, located near Battleford, Saskatchewan, where the deer would be released on a shoot farm (or hunt farm) owned and operated by Carlin Nordstrom of the Poundmaker Cree Nation.

2 After trial, the learned trial judge found the accused not guilty of all three charges. The Crown, Canada filed a Notice of Appeal in this matter. The appeal is brought on the following grounds:

1. That the said dismissal of the three charges was contrary to law and the weight of the evidence;

2. Such further and other grounds as counsel may advise and this Honourable Court may allow.

3 Subsequently, the Attorney General for Saskatchewan (the "Attorney General") provided notice to the court that the Attorney General's office desired to participate in the appeal. Both the Crown, Canada and the At- torney General filed factums in this matter and presented oral argument. The accused, Mr. Marsland, also filed an extensive brief, and presented oral argument at the date of the hearing of this matter.

Standard of Appellate Review

4 The Crown, Canada, the Attorney General, and the accused all agree that the right for the Crown to appeal from an acquittal on a provincial summary conviction offence is found in s. 813(b)(i) of Criminal Code, R.S.C. 1985, c. C-46, which is referentially incorporated into provincial summary conviction proceedings pursuant to s. 4(4) of The Summary Offences Procedure Act, 1990, S.S. 1990-1991, c. S-63.1 as am. In addition, all three agree that, as regards question of law, the test is correctness and that the Crown bears the onus of proving the verdict would not necessarily have been the same if the error had not occurred.

5 In R. v. Schmalz, 2007 SKQB 234, [2007] S.J. No. 352 (QL), the standard is described, as follows, at paras. 17 and 18:

17 It is generally accepted that an appeal court should not substitute its own view of the evidence for that of the trial judge and should only intervene where there has been an overriding or palpable error.

18 On questions of law, the standard of review is correctness and the appeal court should intervene unless it is of the opinion that no substantial wrong or miscarriage of justice has occurred. (See: , 2001 SKQB 551, (2001), 214 Sask.R. 310 (Q.B.); and , 2006 SKQB 469, (2006) 286 Sask.R. 154 (Q.B.))

A similar discussion of "error of law" appears in R. v. Gorman, 2000 SKQB 12, [2000] S.J. No. 78 (QL), where Baynton J. states, as follows, at para. 7:

b. Error of Law

7 An error in applying the law on the part of the trial judge is obviously an error of law. But errors in dealing with the evidence can also constitute errors of law. The following are some examples. An error where there is no evidence of an essential element to support a conviction, R. v. Caouette (1972), 9 C.C.C. (2d) 449 (S.C.C.). An error in excluding admissible evidence, R. v. Arthur, supra, (leave to appeal refused by S.C.C.). In such a case a new trial should be ordered, John v. R. (1986), 23 C.C.C. (3d) 326 (S.C.C.). An error in failing to consider a material aspect of the trial, such as a relevant piece of evidence or a relevant legal issue, R. v. Macdonald, [1977] 2 S.C.R. 665 at 673; R. v. Harper, [1982] 1 S.C.R. 2; R. v. Ratti (unreported

No. 20/96, February 2, 1996, (Sask. C.A.)). An error in erroneously interpreting a Charter breach, R. v. Yuhas (1993), 114 Sask. R. 34 (Q.B.).

6 Finally, the Saskatchewan Court of Appeal in the recent decision of R. v. R.H., 2010 SKCA 49, 350 Sask. R. 193, discusses the standard of appellate review and, more particularly, the onus on the Crown. The court states as follows, at para. 44, quoting Fish J. in R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609at paras. 14 - 16:

[14] It has been long established, however, that an appeal by the Attorney General cannot succeed on an ab- stract or purely hypothetical possibility that the accused would have been convicted but for the error of law. Something more must be shown. It is the duty of the Crown in order to obtain a new trial to satisfy the appellate court that the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal. The Attorney General is not required, however, to persuade us that the verdict would necessarily have been different.

[15] This burden on the Crown, unchanged for more than half a century (see Cullen v. The King, [1949] S.C.R. 658), was explained this way by Sopinka J., for the majority, in R. v. Morin, [1988] 2 S.C.R. 345:

I am prepared to accept that the onus is a heavy one and that the Crown must satisfy the court with a reasonable degree of certainty. An accused who has been acquitted once should not be sent back to be tried again unless it appears that the error at the first trial was such that there is a reasonable degree of certainty that the outcome may well have been affected by it. Any more stringent test would require an appellate court to predict with certainty what happened in the jury room. That it cannot do [p. 374].

[16] Speaking more recently for a unanimous Court in , [2000] 2 S.C.R. 595, 2000 SCC 50, the Chief Justice stated:

The parties agree that acquittals are not lightly overturned. The test as set out in Vézeau v. The Queen, [1977] 2 S.C.R. 277, requires the Crown to satisfy the court that the verdict would not necessarily have been the same had the errors not occurred. In R. v. Morin, [1988] 2 S.C.R. 345, this Court emphasized that "the onus is a heavy one and that the Crown must satisfy the court with a reasonable degree of certainty" (p. 374). [para. 2]

7 With this standard in mind I will firstly review the factual circumstances leading to Mr. Marsland being charged in this matter with the three counts as set out above, and the decision of the learned trial judge in this matter.

Overview of the Evidence

8 The facts are set out in detail in the decision of the learned trial judge. For the most part, the facts in this matter are not in dispute.

9 The accused, Mr. Marsland, was, at the time of the charges, in the business of raising and selling deer to hunt farms. He was operating a deer farming ranch near Cochrane, Alberta. The accused, as found by the learned trial judge, and not disputed by the Crown, Canada or the Attorney General, was familiar with game farm regulations both at the Alberta provincial level and the federal level. In addition, he was familiar with the General Protocols for Importing Game Farm Animals into Saskatchewan (the "Protocols"). The Protocols are found as an

exhibit entered into evidence on the trial of this matter.

10 On September 27, 2005, the accused was transporting five white-tailed deer from his ranch in Alberta to an outfitting and game farm operation, owned by Carlin Nordstrom. Mr. Nordstrom's outfitting operation was located on Poundmaker Cree Nation lands south of Battleford, Saskatchewan. The animals the accused was transporting were deer born and raised on the accused's game farm.

11 It is not disputed that the accused was in possession of a Canadian Food Inspection Agency ("CFIA") export permit for the purpose of transporting the five white-tailed deer out of the province of Alberta. It is also not disputed that the permit was issued by the CFIA because the accused's game farm operation was in good stand- ing with both the Alberta provincial requirements and federal requirements for auditing his herd for diseases. The accused was enrolled in a Chronic Wasting Disease ("CWD") surveillance program. Enrollment in the CWD program was a requirement of the Poundmaker Cree Nation as stated on their import permit. The accused was in possession of an import permit issued by Poundmaker Cree Nation.

12 While transporting the five white-tailed deer from Alberta to the Poundmaker Cree Nation, the accused was stopped south of Battleford at around 10:30 p.m. on September 27, 2005, by Conservation Officers Olsen and Schultz. There is no dispute that the officers stopped the accused as a result of information they had re- ceived regarding white-tailed deer that would be transported by the accused from Alberta to Poundmaker Cree Nation. At the time the officers stopped the accused, the officers were aware of a Saskatchewan Environment Resource Management Departmental meeting that had taken place in Saskatoon less than two weeks earlier. At that meeting senior members of the Department had decided to start laying charges against individuals importing game farm deer without a Saskatchewan import permit. The officers that stopped the accused were present at that meeting. In fact, specific mention was made of three individuals from three different First Nations reserves with one of those individuals being Mr. Nordstrom. It was known by those present at the meeting that Mr. Nord- strom had been importing game farm deer from Alberta to his hunt farm located on the Poundmaker Cree Na- tion, for several years. It is not disputed that, after the meeting, no notice of what was in effect, a policy change, was communicated to Mr. Nordstrom or, subsequently, to the accused. The learned trial judge finds as a fact that the accused could not have known of the policy change.

13 Three of the deer were photographed and the photographs showed no visible "dangle" type ear tags. However, there was testimony before the learned trial judge regarding less conspicuous smaller tags. Both the accused, and his defence expert, Dr. Terry Church, testified to the use of the smaller tags. As a result, the learned trial judge concluded that the Crown had failed to prove that the deer were tagless. The trial judge accepted the accused's evidence that the deer were tagged and that the tags comported with the identification num- bers shown on the two permits in possession of the accused, namely, the CFIA Export Permit and the Pound- maker Cree Nation Import Permit.

14 The officers requested the accused return the deer to Alberta as the department lacked an enclosure to house them. The accused refused. However, he did cooperate with the officers. He allowed the officers to go to their office in North Battleford to photocopy his documents while he waited in Battleford for the officers to return. Once the officers returned with the documents, and the summary offence ticket, the accused completed his delivery to Mr. Nordstrom's hunt farm on Poundmaker Cree Nation. The summary offence ticket was for the provincial offence of importing whitetail deer without an import permit contrary to s. 31(1)(b) of The Wildlife Act. Subsequently, the federal charges, under WAPPRIITA, were sworn.

15 It is not disputed that the hunt farm operation owned and operated by Mr. Nordstrom (Cree Nation Out- fitters), was wholly located within the boundaries of the Poundmaker Cree Nation, in the Province of Saskat- chewan. There is no dispute that Mr. Nordstrom was authorized by a registered Poundmaker Cree Nation Band Council Resolution to operate an outfitting and game farming business on reserve lands. It is also not disputed that Poundmaker Cree Nation had registered band bylaws in place for the hunt activity. The bylaws required Mr. Nordstrom's hunt farm operation to comply with certain specifications. The learned trial judge found as a fact that Mr. Nordstrom's hunt farm operation not only exceeded these requirements, but also complied with or exceeded the specifications required to operate a hunt farm licensed by the Province of Saskatchewan. Mr. Nord- strom, could not, however, obtain a license from the Province of Saskatchewan, as his hunt farm was on a First Nation reserve and came under federal jurisdiction.

16 The fact that Cree Nation Outfitters could not obtain a provincial license to operate a hunt farm in Saskatchewan also meant it could not obtain a provincial import license from the province, since the province only issued these licenses to provincially licensed hunt farms. Thus, hunt farm operations on First Nation reserves within Saskatchewan cannot import domestic game farm animals from outside the province if the animals are being transported through Saskatchewan to a First Nation hunt farm. It is not disputed that the Saskatchewan Environment and Resource Management takes a different position with respect to domestic game farm animals being transported through the province from outside of Saskatchewan, if the eventual destination is not a hunt farm located on a First Nations within Saskatchewan. If the hunt farm is located somewhere else in Saskat- chewan, an individual could, with the proper provincial import domestic game license, transport and deliver the animals.

17 It is not disputed that Mr. Nordstrom had made numerous purchases of deer from the accused in the several years prior to the charges before the court being laid. Specifically, in 2005, the accused had previously moved three shipments of approximately five animals each to Cree Nation Outfitters on the reserve.

18 Finally, there was evidence before the learned trial judge regarding the accused's understanding of the law regarding importation. The accused testified that he had obtained some legal advice from a lawyer friend who was at his home in Cochrane, Alberta. The accused testified that it was the view of that lawyer that a Saskatchewan import permit was not required as the accused was importing the deer to an Indian reserve.

The Decision of the Learned Trial Judge

19 The learned trial judge commences his judgment by reviewing the relevant sections of WAPPRIITA as it pertains to the two charges, under this federal statute. He then discusses the various provisions of provincial statute, The Wildlife Act and the regulations passed thereunder. Finally, he reviews the various provisions of the other provincial statutes dealing with white-tail deer in Saskatchewan. The Crown, Canada, the Attorney General, and the accused, are of the view that the trial judge's review of the existing regulatory regime is sound. The learned trial judge's review of the legislation in question, both federal and provincial, is extremely detailed and I can do no better than to quote his detailed analysis of the legislation. The learned trial judge states in paras. 12 - 20 as follows:

[12] The relevant sections of the Wild Animal and Plant Protection and Regulation of International and In- terprovincial Trade Act (WAPPRIITA) as it pertains to the first two charges read as follows:

6(3) Subject to the regulations, no person shall, except under and in accordance with a permit issued pursuant to subsection 10(1), transport from one province to another province any animal or plant, or

any part or derivative of an animal or plant.

...

8 Subject to the regulations, no person shall knowingly possess an animal or plant, or any part or derivative of an animal or plant,

(a) that has been imported or transported in contravention of this Act;

...

10 (1) The Minister may, on application and on such terms and conditions as the Minister thinks fit, issue a permit authorizing the importation, exportation or interprovincial transportation of an animal or plant, or any part or derivative of an animal or plant.

[13] Section 10 of the WAPPRIITA Regulations, passed pursuant to s. 21(1) of WAPPRIITA, reads as follows:

10. For the purposes of subsection 6(3) of the Act and in respect of a province into which an animal or plant is to be transported,

(a) "animal" means any specimen, whether living or dead, of any wild species of the animal kingdom (kingdom Animalia) the transportation of which into that province is regulated or prohibited by the province, and includes any egg, sperm, tissue culture or embryo of any such animal; and

...

11. An animal or plant, or any part or derivative of an animal or plant, is exempted from the operation of subsection 6(3) of the Act where all required provincial permits have been obtained.

[14] Subject to the WAPPRIITA Regulations, s. 6(3) provides that no one shall import an animal, or part thereof, of a wild species interprovincially, without a federal permit obtained pursuant to s. 10(1). The WAPPRIITA Regulations, s. 11, sets out an exception to the application of s. 6(3) where all required provincial permits are obtained.

[15] Section 8 of WAPPRITA (sic) applies where a contravention is found and triggers essentially higher penalties under s. 22 of WAPPRIITA for wrongful acts "knowingly" done.

[16] The issue then arises as to whether Mr. Marsland obtained all required provincial permits, or specifically here, whether Mr. Marsland acted in contravention of a duty arising from The Wildlife Act s. 31(1) and imported white-tailed deer - wildlife without an import permit.

[17] Section 31(1) of The Wildlife Act as it pertains to the final charge reads as follows:

31(1) Subject to the regulations, no person shall, without having first obtained an export or import licence issued pursuant to this Act or the regulations:

(a) export or cause to be exported from Saskatchewan any wildlife; or

(b) import, release or introduce into Saskatchewan any wildlife.

(2) No person shall ship or transport out of the province any wildlife without first paying the royalties prescribed in the regulations.

[18] The term "wildlife" and other relevant definitions pertaining to s.31(1)(b) are defined in section 2 as follows:

"wildlife" means a vertebrate animal of any species, excluding fish, that is wild by nature in Saskat- chewan and includes:

(a) any part, tissue, genetic material, eggs, sperm, embryos or other forms of developmental life; and

(b) any exotic wildlife found in Saskatchewan;

"wild species" means any plant, animal or organism that is wild by nature and includes:

(a) pollen, spores, eggs, sperm, embryos or other forms of developmental life; and

(b) any part, tissue or genetic material of a plant, animal or organism;

[19] The relevant section of The Wildlife Regulations as it pertains to s.31(1) of the Act reads:

51(1) For the purposes of subsection 31(1) of the Act:

(a) a game bird licence or big game licence seal constitutes the authority to export legal limits of the game taken under that licence, if the game accompanies the licensee;

(a.1) a Non-Saskatchewan Resident Coyote Licence seal constitutes the authority to export legal limits of coyotes taken under that licence, if the coyote hide or carcass accompanies the licensee;

(b) a game export permit on the form provided by the department must accompany any shipment of game out of the province which is not accompanying the licensee;

(c) a game licence from another province or country constitutes the authority to a Saskatchewan resident to import legal limits of game killed under that licence;

(d) an export licence from another province or country constitutes the authority to import raw fur exported under that licence; and

(e) a permit issued pursuant to the Wild Animal and Plant Protection and Regulation of Interna- tional and Interprovincial Trade Act (Canada) under the Convention of the International Trade in Endangered Species constitutes the authority to export wildlife specified in the licence.

(2) Notwithstanding subsection (1), raw big game hides may be exported if a big game seal is attached to the hide. [emphasis added]

[20] The Captive Wildlife Regulations, passed pursuant The Wildlife Act, as referenced in s. 31(1) of The Wildlife Act, address import requirements for captive wildlife under s. 13(1) which reads as follows:

13(1) Any person importing or exporting wildlife or parts of wildlife shall obtain an import or export licence, as the case requires, pursuant to section 30 of the Act. [should read current section 31]

20 In addition to the various statutes and regulations set out above, the learned trial judge also reviews The Diseases of Animals Act, S.S. 1979, c. D-30, and the regulations passed pursuant to the Act. He also reviews The Animal Products Act, R.S.S. 1978, (Supp.) c. A-20.2. The relevant paragraphs of the trial judge's judgment regarding these statutes and regulations are paras. 31 - 40 as follows:

[31] The Diseases of Animals Act, 1979, S.S. c-D-30, governs animal health and regulates the suppression and limitation of outbreak of disease in all animals including disease regulation specific to domestic farm animals. It allows for the inspection of all animals being imported. The Diseases of Domestic Game Farm Animal Regulations are passed pursuant to this Act, along with the Control of Animal Diseases Regulations. The Diseases of Domestic Game Farm Animal Regulations provides for import restrictions to prevent the importation of diseased domesticated game farm animals (as defined in the DGFAR) and the Control of An- imal Diseases Regulations allows for quarantine and destruction of farm animals (horses, cattle, sheep, swine, and live poultry) where required.

[32] The Diseases of Animals Act, 1978, S.S. c. D-30, as amended, also applies to "animals" which in this Act are broadly defined as including birds. This Act imposes a duty on owners to support inspection of animals for purposes of regulating animal health. The Diseases of Domestic Game Farm Animals Regulations, passed pursuant to this Act, provide the Minister authority to establish import restrictions or protocols (s.3(2)).

[33] The Wildlife Act, 1998, S.S. c. W-13.12, governs and establishes the authority to regulate wildlife, defined as including all vertebrate wild by nature in Saskatchewan, and captive wildlife, including importation. The Captive Wildlife Regulations and the Wildlife Regulations are passed pursuant to this Act.

[34] The Captive Wildlife Regulations establish a licencing regime for wildlife farms whereby licencing is at the discretion of the Director of Fish and Wildlife. At s. 13(1), importation of captive wildlife to and from licenced wildlife farms requires an import permit as set out under s. 30 of The Wildlife Act [should read s. 31(1)].

[35] The Wildlife Regulations forbid trafficking in wildlife generally, and provide for the implementation of s. 31(1) of the Act through s. 51(1). The only import situation dealt with under s. 51(1) is the import of wildlife lawfully taken in another jurisdiction. At s. 3(3) of the Wildlife Regulations, domestic game farm operators and domestic game farm animals, as defined in the Domestic Game Farm Animal Regulations (DGFAR), are exempted from the application of the Wildlife Regulations, with some exceptions, where the domestic game farm is a licenced farm, as defined in the DGFAR. The DGFAR is the legislation that governs domestic game farming and game farm animals, except as it impacts on migratory birds, and other mat- ters. Neither the Wildlife Act nor the Wildlife Regulations nor the Captive Wildlife Regulations contemplates importation of domestic game farm animals onto non-licenced game farms, nor do they provide for an import permit in such a situation.

[36] It is not disputed that the primary purpose of The Wildlife Act, 1998, S.S. c. W13.12, is to protect wild-

life. The Act is a validly enacted statute designed to promote the conservation and management of wildlife within the province, which includes the importation of wildlife into Saskatchewan (R. v. Berg, 2003 SKQB 456at 27).

Importing wildlife without a licence issued pursuant to the Wildlife Act or Regulations

[37] The Animal Products Act, 1978, S.S. c. A-20.2, governs all animals raised in captivity for the purposes of producing animal products which includes regulation of domestic game farm animals, and livestock and the transportation and inspection of such animals. The Domestic Game Farm Animal Regulations (DGFAR) addresses the importation and transportation of domestic game farm animals into Saskatchewan, requiring import permission, pursuant to The Wildlife Act and the Canadian Food Inspection Agency (CFIA), pursuant to the Health of Animals Act (Canada). The DGFAR also acknowledge that obligations arise pursuant to the Diseases of Animals Act and Livestock Inspection and Transportation Regulations, passed under the Animal Products Act.

[38] As it pertains to domesticated game farm animals, The Animal Products Act defines animals governed by this legislation to include "any animal raised in captivity for the purpose of producing animal products". Section 18(f) authorizes the lieutenant governor to make regulations regarding the transport of animals. The DGFAR were passed pursuant to the Animal Products Act and require an importer of such animals:

d. pursuant to s. 17(1), to obtain a transport authorization permit (defined in s. 2(q) as meaning a transportation authorization permit issued pursuant to the Health of Animals Act (Canada) by the Canadian Food Inspection Agency) when importing live domestic game farm animals; and

e. pursuant to s. 15(1), to obtain an import license (defined in s. 2(j) as meaning an import license issued pursuant to The Wildlife Act, 1977) when importing live domestic game farm animals.

i. A licence is defined in The Wildlife Act at s. 2 as meaning "a licence, certificate, permit, quota or allocation issued pursuant to this Act or the regulations and includes any seal or corresponding document issued with the licence, certificate, permit, quota or allocation."

ii. "Domestic game farm animals" are defined in s.2 (e) of The Animal Products Act as meaning an animal that is held for the purposes of producing products and that:

(i) an animal is a member of the following species, which are indigenous to Saskatchewan:

(F) the species of white-tailed deer having the scientific name Odocoileus virginianus;

[39] The relevant sections of the DGFAR require importers to obtain and carry a valid transport authorization permit issued by CFIA. They read as follows:

17(1) Every person, when importing a live domestic game farm animal into Saskatchewan or exporting a live domestic game farm animal out of Saskatchewan, shall obtain a transportation authorization permit where required by the Canadian Food Inspection Agency, or properly complete a manifest, and sub- mit a copy of the permit or manifest to the minister, or to any party designated by the minster, within 30 days after the date on which the animal is imported or exported, as the case may be.

(2) Every person who transports a live domestic game farm animal within or out of Saskatchewan shall:

(a) hold in his or her immediate possession at all times during the transport:

(i) a transportation authorization permit, where required by the Canadian Food Inspection Agency; or

(ii) a properly completed manifest; and

(b) provide the transportation authorization permit or completed manifest to the person who re- ceives the domestic game farm animal from that person.

[40] The Animal Products Act, requires that Mr. Marsland, in importing domestic game farm animals into Saskatchewan, hold or obtain a CFIA transport authorization permit and an import licence pursuant to The Wildlife Act.

21 The learned trial judge recognized that culpability under s. 6(3) of WAPPRIITA is avoided where all required provincial permits are obtained. Thus, he addressed the charges under The Wildlife Act first. In so doing, he finds that the animals imported by the accused were "wildlife" under The Wildlife Act. However, he goes on to state, at para. 22 as follows:

... However, the overall regulatory scheme for the protection and conservation of wildlife in Saskatchewan distinguishes "wildlife held captive and sold as wildlife", as governed by The Wildlife Act, and The Captive Wildlife Regulations, and "wildlife that are domesticated for the purposes of producing animal products for sale" as governed by The Animal Products Act and The Domestic Game Farm Animal Regulations. Hence, I find, for the purposes of this case, that the wildlife that were being imported by Mr. Marsland, were domestic game farm animals, as defined under The Animal Products Act. The animals transported by Mr. Marsland were born and bred on a game farm in Alberta.

22 With respect to the learned trial judge's findings regarding the nature of the deer, the Attorney General says the deer can be both "wildlife" and "domestic game farm animals" and that no error was made by the trial judge in defining the deer both as "wildlife" and "domestic game farm animals", although the trial judge settled on the terms "domestic game farm animals". The concern of the Attorney General is that the learned trial judge seems to have been of the view that the white-tailed deer in question had to be either "wildlife" or "domestic game farm animals". The accused argues alternative positions regarding the characterization of the deer. These alternate positions are dealt with later in my analysis of this matter.

23 The learned trial judge determines that in order to find a violation under s. 6(3) of WAPPRIITA, it must be proven that the accused did not hold an interprovincial permit as required by s. 10(1) of WAPPRIITA. He goes on to state that WAPPRIITA, through its regulations, waives the import licensing obligation under s. 6(3) where it can be shown that all provincial obligations regarding transport of any specimen of wild species are met. The trial judge says that in this fashion, WAPPRIITA is in harmony with provincial/territorial laws. The trial judge asks himself the fundamental question: whether the accused, in importing white-tailed deer, born and raised on his Alberta game farm into Saskatchewan did so contrary to the law?

24 The learned trial judge, in para. 41 of his decision states as follows:

[41] In order to find exemption from s. 6(3) of WAPPRIITA, pursuant to the WAPPRIITA Regulations at s. 11, Mr. Marsland was required by law to comply with all laws relating to the import of animals that belong to a wild species. In Saskatchewan, the law requires that to import domestic game farm animals the importer must hold:

f. an import license, as required by the DGFAR, as set out under s. 31(1) of The Wildlife Act and

g. a transport authorization permit issued pursuant to the Health of Animals Act (Canada) by the Cana- dian Food Inspection Agency.

25 He then states as follows, in paras. 43 and 45:

[43] I find, and it is not disputed, that Mr. Marsland had obtained a CFIA permit. The issue remains as to whether Mr. Marsland, as required under DGFAR, obtained the required import permit under The Wildlife Act.

...

[45] A duty was, however, imposed on Mr. Marsland under s. 15 of the DGFAR to obtain an import licence pursuant to s.31(1). A failure to meet this duty of licencing importation of domestic game farm animals may have given rise to a charge under the DGFAR, s. 15, and not under s. 31(1) of The Wildlife Act. Mr. Mars- land, however, was not charged under the DGFAR s.15, where the specific duty arises. He was, in my opinion, quite possibly charged under the wrong legislation.

26 The learned trial judge, as set out above, determined that the accused had a duty under s. 15 of The Do- mestic Game Farm Animal Regulations, A-20.2 Reg 10 (the "DGFAR") to obtain an import license. The learned trial judge states that by virtue of the definition of "import license", as set out in s. 2(j) of the DGFAR, an import license means an import license issued pursuant to The Wildlife Act. Finally, he states that as a license for importation of domestic game farm animals was not contemplated by The Wildlife Act, a license was unattainable. From this the learned trial judge concludes that no culpability can be found in not having obtained a license which was not obtainable.

27 Finally, the learned trial judge moves to the issue of due diligence. With respect to due diligence, the learned trial judge states that, if he is wrong, and the accused was required to hold an import permit under The Wildlife Act, the accused had shown due diligence in attempting to meet any obligations under the law. The learned trial judge noted that the accused held a transport authorization permit from CFIA as required. The trial judge pointed out that the accused also held a Poundmaker Band Import Permit to import onto the Poundmaker reserve. Further, he concluded that the accused held the belief that no provincial permit was available in Saskat- chewan for importing domestic game farm animals onto a First Nations reserve. The accused, according to the trial judge, relied on the past practice of federal officials allowing the importation practices. He concludes that this is due diligence exercised by the accused and it is a complete defence to the charges under The Wildlife Act.

Argument of the Parties

28 The Crown, Canada, takes the position that the learned trial judge correctly determined that the deer being transported by the accused from Alberta to the Poundmaker Cree Nation were "wildlife" within the meaning of s.31(1)(b) of The Wildlife Act because the animals met the criteria of the definition of "wildlife" as set out in

s. 2 of The Wildlife Act. However, the Crown, Canada says the learned trial judge's subsequent determination that the deer were "domesticated game farm animals" was incorrect. The Crown, Canada argues that the learned trial judge erred in this determination because these animals continue to be wild even though they were raised on a game farm in Alberta.

29 The Crown, Canada states that it is clear on all of the evidence that the accused did not have a provincial import license for the "wildlife" as required by s. 31(b) of The Wildlife Act and that the accused should have been found guilty of the offence of importing white-tailed deer without an import permit contrary to s. 31(1)(b) of The Wildlife Act.

30 The Crown, Canada then turns to a consideration of the WAPPRIITA regulations and, in particular, s. 6(3). The Crown, Canada takes the position that the learned trial judge correctly discusses the provisions of WAPPRIITA and concludes that WAPPRIITA requires that all provincial statutes must be complied with in order to qualify for the exemption set out in s. 11 of the regulations. To clarify, s. 6(3) of WAPPRIITA, states that no one shall import an animal, without a federal permit obtained pursuant to s. 10(1). However, the WAP- PRIITA regulations, in s. 11, sets out an exception to the application of s.6(3), where all required provincial permits are obtained.

31 While the Crown, Canada, believes the learned trial judge correctly reviewed the provisions of WAP- PRIITA, and the regulations thereunder, it argues that the learned trial judge erred when stating the following (previously quoted, from para. 44 of the judgment):

[44] No such permit was available to Mr. Marsland under The Wildlife Act. Neither the Act nor regulations passed pursuant to it contemplate the importation of domestic game farm animals. Mr. Marsland therefore could not have obtained an import licence for these five domestic game farm animals under The Wildlife Act.

32 The Crown, Canada, states that the learned trial judge erred in this matter because the accused was obligated under the provisions of WAPPRIITA and its regulations to apply for a provincial import permit under the provincial legislation and the accused failed to do so.

33 The Attorney General argues that the animals in issue are both "wildlife" within the meaning of The Wildlife Act and, in addition, "domestic game farm animals", as defined under The Animal Products Act. The At- torney General argues that the trial judge appears to have believed that the white-tailed deer in question must be either "wildlife" or "domestic game farm animals".

34 The Attorney General argues that the trial judge erred in determining that the accused was not guilty of the offence of importing without a permit on the basis that a provincial license was not granted to Mr. Nord- stom's hunt farm, making it impossible for the accused to obtain a provincial import permit to bring the deer from his game farm to the hunt farm located on the First Nations reserve. The Attorney General says that regardless of where in Saskatchewan the white-tailed deer were destined, they were being imported into Saskatchewan where an import permit is required by s. 13 of The Wildlife Act.

35 The Attorney General clarifies its position by stating that whether the deer were "wildlife" under The Wildlife Act or "domestic game farm animals" under The Animal Products Act, an import permit from the province was required. The Attorney General says that The Animal Products Act referentially incorporates the import permit provisions of The Wildlife Act such that any white-tailed deer being imported into Saskatchewan

require an import permit from the province issued under The Wildlife Act. In light of the undisputed fact that the accused imported wildlife into Saskatchewan without an import permit issued by the Province of Saskatchewan, the Attorney General argues that the learned trial judge was incorrect in acquitting the accused and that the accused must be found guilty of the offence under The Wildlife Act.

36 The accused argues that the learned trial judge was correct when he determined that the deer in question were "domestic game farm animals". The accused says that no import permit for "domestic game farm animals" was tendered into evidence by the Crown with respect to the importation of such animals to a game farm licensed by band by law. As a result, the accused says the learned trial judge was correct when stating that the charges were for the failure to obtain a permit which could not be obtained.

37 The accused acknowledges that the domestic game farm animal regulations requires that an importer must obtain a CFIA permit and any import license issued pursuant to The Wildlife Act, 1997. The accused had a CFIA permit but did not have an import license issued under The Wildlife Act because, the accused argues, The Wildlife Act does not provide for an import license for "domestic game farm animals". The accused says that the learned trial judge was correct in holding that no culpability can be found in the accused not having obtained a license which was not obtainable.

38 The accused says it was open to the learned trial judge to find that the animals were not "wildlife" within the meaning of The Wildlife Act. The accused says that the white-tail deer which were harvested on a farm are not "wild by nature". In light of the fact that they are domestic, The Wildlife Act, and definition of "wildlife", thereunder, is not applicable.

39 With regards to WAPPRIITA, the accused says that the charges under WAPPRIITA are separate and dis- tinct from The Wildlife Act charges but that the statutes are inter-related in terms of the requirements for compli- ance. Thus, the accused argues that he cannot be found guilty of the WAPPRIITA charges for the same reasons he cannot be found guilty of the charges under The Wildlife Act.

40 The accused says that the learned trial judge ultimately acquitted him because he had obtained all import permits that he could have obtained and thus fell within the exception contained in s. 6(3) of the WAPPRIITA regulations. In addition, the accused argues that even if he should have been found guilty, he exercised sufficient due diligence to relieve himself from prosecution under s. 6(3), as found in the alternative by the trial judge.

Analysis

41 With respect, I have determined that the learned trial judge erred in acquitting the accused of the three charges in issue. The three charges in issue are regulatory offences and are strict liability offences.

42 In R. v. Hayworth, 2003 SKPC 52, 231 Sask. R. 204, the Saskatchewan Provincial Court discussed the nature of wildlife offences, stating as follows at para. 12:

12 Offences under The Wildlife Act, and in particular the charges under the sections being considered herein, are strict liability offences. See R. v. Danners, [1996] S.J. No. 314 (Baynton J.) at para. 6; R. v. Rob- son, [1999] S.J. No. 844 (Klebuc J.) at para. 5. The Act is not, as Defendants' counsel suggested in argument, a criminal statute, where ambiguities are perhaps to be construed in favour of the accused. It is, rather, regulatory in nature and is to be interpreted purposively and liberally, in order to attain the objects of the legislation. As noted by Baynton J. in R. v. Agpro Grain Inc., [1996] S.J. No. 177, 142 Sask. R. 37at para. 19:

"An act is now considered a crime if it is so abhorrent to the basic values of human society that it is prohibited completely. An act is considered a regulatory offence if it is prohibited not because it is in- herently wrongful but because if unregulated it could have potentially adverse effects on society. The objective of regulatory legislation shifts from the protection of individual interests to the protection of the public and societal interests. R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154 at 218-219.

43 With respect to the applicability of the provision of The Wildlife Act to an individual such as the accused, the decision in Berg v. Saskatchewan, 2003 SKQB 456, 243 Sask. R. 29, is instructive. Barclay J. was asked to rule upon a civil matter involving domestic elk ranchers who sued the provincial government after the authorit- ies refused to issue import permits pursuant to The Wildlife Act to import elk into Saskatchewan due to concerns that such importation may result in the introduction of disease. The elk in question were domestic game farm animals that the ranchers were seeking to import to their domestic game farms. Barclay J. discusses the purpose of The Wildlife Act and states in para. 13:

... The purpose of the legislation can be seen by reference to the long title of the Act, which reads "An Act respecting the Protection of Wildlife and Wild Species at Risk ...."

44 In Berg, Barclay J. refers to the decision of the Saskatchewan Court of Appeal in R. v. Pearsall, [1978] 5 W.W.R. 298, 80 D.L.R. (3d) 285 (Sask.C.A.). In so doing, he says that the Court of Appeal has held that the conservation and management of wildlife is a matter within the competence of the provincial legislature. In addition, Barclay J. states that the Court of Appeal concluded that the intent and purpose of the legislation is determined by the nature of the legislation not by its ultimate results. In Pearsall, the Court of Appeal found that the true intent and purpose of the legislation was to protect game and to regulate hunting.

45 It is clear from a review of the Berg decision that the primary purpose of The Wildlife Act is to protect wildlife and that it applies to anyone, anywhere, who wants to import wildlife into Saskatchewan. I take from the Berg decision that every person must obtain a permit before they can import any species of wildlife into the province, regardless of where they live, or what their occupation.

46 Again, with respect to the learned trial judge, the accused did not have the import license he was required to have. He was required to have a provincial import license under the provisions of The Wildlife Act. Al- though I accept the learned trial judge's finding that it was not possible for the accused to obtain such a license because Poundmaker Cree Nation could not obtain a provincial license for its hunt farm, this does not excuse the accused from the provisions of The Wildlife Act. This violation of The Wildlife Act, leads to the violation under WAPPRIITA. The accused is guilty under WAPPRIITA if he had no provincial import license as required by The Wildlife Act.

47 The learned trial judge makes reference to the fact that other hunt operations in the province, namely those not located on Indian reserves, have been able to obtain provincial licenses. While this does, as suggested by the trial judge, lead to an anomaly as hunt farms located on reserve lands cannot obtain a provincial license, the nature of this strict liability offence must lead to the conviction of the accused. The accused was transporting deer into Saskatchewan without a provincial import permit. He is guilty of the offences charged as a result.

Defence of Due Diligence

48 In the learned trial judge's decision, he states that if he is wrong and the accused was required to hold an import permit under The Wildlife Act, he believes the accused had shown due diligence in attempting to meet

any obligations arising therefrom. Specifically, he references the fact that the accused held a transport authorization permit from CFIA as required. Further, he says that the accused held a Poundmaker Band Import Permit to import onto the Poundmaker reserve. The learned trial judge says he considered the accused's evidence of his past experience in the importation of deer to the Poundmaker Cree Nation and the accused's reliance on the fact that federal officials were aware of his practices but had never charged him.

49 As regards strict liability offences, two main defences can be raised. Firstly, the defence of due diligence and, secondly, the defence of officially induced error.

50 The decision of the Supreme Court of Canada in R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299, 85 D.L.R. (3d) 161, is most often referred with respect to the defence of due diligence. In that case, by exercising due diligence, the accused escaped conviction. The court held that where an accused proves, on a balance of probabilities, that he took all reasonable care to avoid the offending behaviour, the defence is made out.

51 In the subsequent decision of the Supreme Court of Canada in Lévis (City) v. Tétreault, 2006 SCC 12, [2006] 1 S.C.R. 420, the Supreme Court of Canada looked at both the issue of due diligence and the offence of "officially induced error". In the court's discussion of due diligence, the court clearly states that passive ignor- ance is not a valid defence in criminal law.

52 Dealing firstly with the issue of due diligence, and with respect to the learned trial judge, the accused's actions cannot lead to a finding of due diligence. In reviewing the transcript of the evidence of the accused at trial, he says the following at pages 198199 of the transcript regarding his reasons for believing he could import the deer to the Poundmaker Cree Nation:

A: Right. Officer Olson and I — it was part of the discussion is he asked for permits that I had for moving these animals. I supplied him with my CFIA movement permit. I supplied him with the Poundmaker import permit and — and at that point that was — that was the documents that I was — I felt I needed for moving to Poundmaker land. It — it came up as part of a discussion I had with a lawyer friend of mine in Alberta previous or prior to that, that Poundmaker — I had a copy of the bylaws — that Pound- maker had — had — had gone through the process to develop bylaws in which they were exercising their right to self governance of their wildlife and wildlife species and that document was stating all the details for operation of a game farm and a subsequent high-fenced operation and in that document it clearly stated that I was able to import animals based on the import permit to Poundmaker.

53 And later at page 233 of the transcript of the accused's evidence, he states as follows:

A. No, I had a discussion with a lawyer originally and they advised me that the Poundmaker bylaw had — was exercising their rights to control their wildlife and their wildlife species for band use and that's what the bylaw was.

Q. That was in Calgary.

A. That was a friend of mine out of Cochrane, yes.

Q. Or Cochrane. That's near Calgary.

A. Yes.

Q. (inaudible)

A. Ten minutes west.

Q. So was that in a bar or something or was it formal legal advice you got?

A. We were just visiting, sitting around the table.

Q. A friend of yours?

A. Yeah.

Q. So he's not or wasn't a formal opinion that he had.

A. It wasn't a written formal opinion, no.

54 In my view, and again with respect to the learned trial judge, it is not enough to ask a lawyer "friend" at a kitchen table whether what you are doing is proper and legal. You must take additional steps to determine the legality of your actions.

The Defence of Officially Induced Error

55 If indeed the learned trial judge was of the view that the offence of "officially induced error" was applicable in these circumstances, I must, respectfully, disagree. In the previously sited Supreme Court of Canada decision in Levis, the court noted, at para. 27, the following as regards officially induced error:

27 Although the Court did not rule on this issue in Jorgensen, I believe that this analytical framework has become established. Provincial appellate courts have followed this approach to consider and apply the defence of officially induced error (R. v. Larivière (2000), 38 C.R. (5th) 130 (Que. C.A.); Maitland Valley Conservation Authority v. Cranbrook Swine Inc. (2003), 64 O.R. (3d) 417 (C.A.)). I would also note that, in this appeal, [page436] neither the prosecution nor the intervener, the Attorney General of Canada, has questioned the existence of this defence in Canadian criminal law as it presently stands. At most, the Attorney General of Canada has suggested another condition in addition to those enumerated by Lamer C.J., namely that the act was committed contemporaneously with the reception of the information. I do not think this addition is necessary. The Attorney General of Canada's concerns relate more to the need to demonstrate that the advice was reasonable and that the accused relied on it. It should be noted, as the Ontario Court of Ap- peal has done, that it is necessary to establish the objective reasonableness not only of the advice, but also of the reliance on the advice (R. v. Cancoil Thermal Corp. (1986), 27 C.C.C. (3d) 295; Cranbrook Swine). Various factors will be taken into consideration in the course of this assessment, including the efforts made by the accused to obtain information, the clarity or obscurity of the law, the position and role of the official who gave the information or opinion, and the clarity, definitiveness and reasonableness of the information or opinion (Cancoil Thermal, at p. 303). It is not sufficient in such cases to conduct a purely subjective analysis of the reasonableness of the information. This aspect of the question must be considered from the per- spective of a reasonable person in a situation similar to that of the accused.

56 There was very little evidence that the accused made efforts to obtain information as regards his legal re- sponsibilities for importation of the deer in question. Further, the fact that the officials in this matter "allowed"

the accused to import deer on previous occasions without charge, cannot be said to be officially induced error. In R. v. Shiner, 2007 NLCA 18, 264 Nfld. & P.E.I.R. 186, the court set aside a judicial stay and entered a conviction against a seal hunter from unlawfully selling blue back seal pellets. In that case, the accused has argued that the Department of Fisheries' failure to act to curtail the illegal harvest of blue back seals led him to believe he could continue to do so. This was rejected by the court. The court held that the accused "inferred" that his actions were legal. In the matter before me, the accused "inferred" that his actions were legal when he was not previously stopped. However, it does not establish officially induced error.

Conclusion

57 For the reasons set out above, the decision of the learned trial judge must be overturned, and the appeal allowed.

58 The Crown, Canada requests that I enter a conviction and impose a sentence in this matter. The Attorney General also requests that a conviction be entered and a sentence imposed. During the hearing of this matter, the accused, when questioned, agreed that if I did not accept the accused's position and allow the acquittals to stand, that the most appropriate way to proceed would be the entering of a conviction and for me to sentence the accused as opposed to sending the matter back to the learned Provincial Court Judge for sentencing.

59 I am quashing the acquittals on all three charges and entering a conviction for each of the three charges. With respect to sentencing, I was urged by the accused to order a fine in this matter in the sum of $1.00 given the circumstances. Neither the Crown, Canada nor the Attorney General took a position on sentence.

60 Section 31(1)(b) of The Wildlife Act falls under Division III of the Act. The penalty for violation of s. 31(1)(b) is the general penalty section found in s. 73 of the Act, which reads as follows:

73 Subject to section 75, any person who contravenes any provision of this Act or the regulations for which no monetary penalty is specified is guilty of an offence and liable on summary conviction to a fine of not more than $100,000.

61 With respect to violations of s. 6(3) and s. 8(a) of WAPPRIITA, the relevant penalty section of the Act reads as follows:

22. (1) Every person commits an offence who contravenes

(a) any provision of this Act;

(b) any provision of the regulations designated by regulations made under paragraph 21(1)(g.1); or

(2) Every individual who commits an offence under subsection (1) is liable, ...

...

(b) on summary conviction,

(i) for a first offence, to a fine of not less than $5,000 and not more than $300,000 or to imprisonment for a term of not more than six months, or to both, and

(ii) for a second or subsequent offence, to a fine of not less than $10,000 and not more than $600,000 or to imprisonment for a term of not more than six months, or to both.

62 This is a first offence. Further, although there are two charges under WAPPRIITA, I am of the view that the possession charge is subsumed into the importing charge and I need only sentence for one offence. Pursuant to s. 22(2)(b)(i), I am obligated to apply a minimum penalty of not less than $5,000.00. In all of the circumstances, and more specifically my concern regarding the anomaly of First Nations hunt farms not being able to obtain provincial licenses when other hunt farms can, I sentence the accused as follows:

1. For the conviction under s. 31(a)(b) of The Wildlife Act, a fine in the sum of $1.00.

2. For the convictions under s. 6(3) and s. 8(a) of WAPPRIITA, a fine in the sum of $5,000.00.

63 In rendering this sentence, I read and applied the sentencing principles set out in s. 22.08 of WAP- PRIITA.

64 Finally, if the accused requires time to pay the fine in this matter, I am prepared to entertain an application regarding the same.

END OF DOCUMENT