R. v. Wise, 2011 ONCJ 366

COURT FILE No.: 090203 Citation: R. v. Wise , 2011 ONCJ 366 ONTARIO COURT OF JUSTICE IN THE MATTER OF an appeal under S.116(2) (

a) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended; BETWEEN: Clifford D. Wise Appellant — AND — Her Majesty the Queen Respondent Before Justice Peter T. Bishop Heard on 06 June 2011 Reasons for Judgment released on 11 July 2011 Kevin Elliott......................................................................................................... for the respondent Mark Van Walleghem ................................................................ for the appellant, Clifford D.

Wise BISHOP J.: [ 1 ] This matter comes before my by way of an appeal from a decision of Justice of the Peace Daisy Hoppe given January 25, 2011 with respect to conviction and sentence. [ 2 ] At trial, the appellant was convicted of one count under S.48(1) of the Fish and Wildlife Conservation Act and one count under S.96(

a) of the Fish and Wildlife Conversation Act which alleged as follows:

i) On or about the 3 rd day of November, 2009 at the Junction of Highway 647 and 17, Langton Township, Vermilion Bay in the Northwest Region, did unlawfully sell game wildlife, to wit: one set of bull moose antlers without the authority of a licence and not in accordance with the regulations contrary to Section 48(1) of the Fish and Wildlife Conservation Act , Statues of Ontario, 1997 c.41 and; ii) further, that on or about the 3 rd day of November, 2009 at the junction of Highway 647 and 17, Langton Township, Vermilion Bay in the Northwest Region did commit the offence of knowingly make a false or misleading statement to a Conservation Officer contrary to 96(

a) of the Fish and Wildlife Conservation Act , Statues of Ontario, 1997 c.41. EVIDENCE AT TRIAL : [ 3 ] Kurt Pike was an American hunter who booked an archery moose hunt in the later part of September, 2008 in Wildlife Management Unit #5 with Fin and Feather Lodge. [ 4 ] The lodge provided Mr. Wise as a guide, whose services included moose calling, tracking, recovery and general guide services. The cost to Mr. Pike was Twenty Five Hundred Dollars ($2,500.00) of which Mr. Wise received Nine Hundred Dollars ($900.00). [ 5 ] On the Wednesday evening of the hunt, Mr.

Pike shot a moose with an arrow and the moose was not recovered either that evening or the following day. [ 6 ] Mr. Wise agreed to try and recover the moose antlers and get them to Mr. Pike in due course. [ 7 ] On or about August 2, 2009, Mr. Pike learned from his sister that Mr. Wise had found the moose antlers that belonged to him. [ 8 ] Communications were then entered into between Mr. Pike and Mr. Wise which resulted in a request for Five Hundred Dollars ($500.00) by Mr. Wise to provide the antlers to Mr. Pike.

[ 9 ] Mr. Pike was concerned about the legality of selling him his moose antlers and contacted the Ministry of Natural Resources who arranged for a sting operation whereby a conservation officer would pose as a friend of Mr. Pike to obtain the antlers in exchange for Five Hundred Dollars. [ 10 ] On the exchange date, the appellant provided a set of bull moose antlers that belonged to Mr. Pike in exchange for Five Hundred Dollars. [ 11 ] Mr. Wise told one of the undercover conservation officers that the Five Hundred Dollars was for a tip. Mr.

Wise also stated that he was not selling the antlers but was being reimbursed for his expenses for going out to the bush and retrieving them.

ISSUES : [ 12 ] Did the Justice of the Peace err in failing to consider whether the money was for expenses in recovering the moose antlers; or when the appellant referred to compensation being a tip did it in any way discredit the original agreement that the compensation was for the costs in recovering the antlers; or further, whether the money was reimbursement for effort and expenses or tip is immaterial as it is not payment for the moose antlers and therefore not illegal. [ 13 ] Did the Justice of the Peace err in concluding that she could not believe the evidence of the appellant and properly apply the “W(D)” Test. [ 14 ] Did the Justice of the Peace err in finding that the appellant made a false statement to the conservation officer without specifically identifying the false statement.

DECISION : [ 15 ] Counsel agreed at the outset that the first charge is proven if the appellant already had the antlers in his possession when the deal was struck to give Five Hundred Dollars for the antlers. [ 16 ] In her decision, the Justice of the Peace made the following findings of fact: • Mr. Wise was the guide and Mr. Pike was the hunter in 2008 and they had arranged a meeting place where the exchange of cash and antlers would take place. The meeting and exchange occurred that weigh scale lot in Vermilion Bay.

She also found that the communication and cash for antlers through email correspondence happened after Mr. Pike learned that his moose had been found and Mr. Wise had the antlers. • The transaction was entered into by Clifford Wise and Reg Plett. • The word “tip” only occurred after the deal was made. • The Crown had established that a transaction involving cash and moose antlers did take place. • The trial court found that the Crown had established that a transaction involving cash and moose antlers did take place.

The appellant did not meet any exception as referenced in the section. [ 17 ] I find that the Justice of the Peace correctly applied the test in R. v W.(D).(1991), 63 CC (3d) 397 (S.C.C.) and outlined the strengths and weaknesses of both the Crown and the Defence evidence. In considering all of the evidence, the Justice of the Peace did not believe the appellant but accepted the Crown’s evidence and concluded that the charge had been proven beyond a reasonable doubt. Credibility was weighed by the Justice of the Peace; she rejected Mr. Wise’s evidence and accepted the evidence of Mr.

Pike, Conservation Officers Plett and Winter and only referred to the evidence of the conservation officers prior to the voir dire. The charge of Unlawfully Selling Game Wildlife Without the Authority of a Licence has therefore made out. [ 18 ] After a voir dire, the Justice of the Peace ruled that the cash seized was admissible pursuant to section 92(1) of the Fish and Wildlife Conservation Act which states as follows: “ A conservation officer that is lawfully in a building or any other place may without a warrant, seize anything that he believes on reasonable grounds ”:

a) Has been obtained in a commission of events under the Act;

b) Is being used in the commission of an offence under that Act, or;

c) Will afford evidence of the commission of an offence under this Act. [ 19 ] At the conclusion of the voir dire, the Justice of the Peace decided that Mr. Wise’s charter rights had been infringed and he was detained and was not given the right to counsel pursuant to S.10(

b) of the Canadian Charter Rights and Freedoms and any statements made to Conservation Officer Winter would not be admissible and therefore those statements could not be taken into account when deciding whether or not a false statement was made. [ 20 ] As the Justice of the Peace accepted the Crown’s evidence of Kurt Pike, Conservation Officer Plett and Winter prior to commencing the voir dire, there was ample evidence to find that Mr. Wise made a false and misleading statement. It was obvious from the decision that the Justice of the Peace accepted that Mr. Wise had the antlers prior to making a deal with Mr.

Pike and therefore, the issue of a tip or compensation for recovery when he was out hunting with other individuals is moot. [ 21 ] Mr. Wise was compensated for Mr. Pike’s hunt as well as the hunt with other guests when the antlers were recovered. All statements made to Conservation Officer Winter after he was detained were ruled inadmissible but those statements made through email

to Kurt Pike and his viva voce evidence, Officer Winter and Officer Plett prior being detained are admissible and are false statements when the evidence is viewed as a whole. [ 22 ] The Justice of the Peace did not specifically state which statements were false but in accepting Officer Plett’s evidence and Mr. Pike’s evidence it is apparent that Mr.

Wise was already compensated for the hunt and the Five Hundred Dollars was not for recovery of the antlers which he secured on another hunt at no additional cost and the statement to Officer Plett to tell Officer Winter that cash really was for a “tip” is a false and misleading statement and also stating that they had just been recovered was false and misleading based on the totality of the evidence before the court. [ 23 ] After reviewing the transcript, the exhibits and the reasons given by the trial justice, I am finding that the trial court properly applied the “W(

D) Test” and had ample evidence to find that a false statement had been made to the Conservation Officer Plett. [ 24 ] The Justice of the Peace imposed a fine in the amount of Fifteen Hundred Dollars ($1,500) with respect to selling wildlife and Six Hundred Dollars ($600.00) with respect to making a false statement. [ 25 ] Although I may not of imposed such a significant penalty for these offences they are within the range and in the discretion of the Justice of the Peace and are not manifestly unfit. [ 26 ] The appeal on both counts with respect to conviction and sentence is therefore dismissed. Released: 11 July 2011 Signed: “Justice Peter T. Bishop”