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 © Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights re- served. 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 ac- cused 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 © 2011 Thomson Reuters. No Claim to Orig. Govt. Works FOR EDUCATIONAL USE ONLY Page 2 2011 CarswellSask 365, 2011 SKQB 207 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 deal- ing 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 er- ror 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 © 2011 Thomson Reuters. No Claim to Orig. Govt. Works FOR EDUCATIONAL USE ONLY Page 3 2011 CarswellSask 365, 2011 SKQB 207 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 ap- pellate 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 cer- tainty" (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 regu- lations 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 © 2011 Thomson Reuters. No Claim to Orig. Govt. Works FOR EDUCATIONAL USE ONLY Page 4 2011 CarswellSask 365, 2011 SKQB 207 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.