Her Majesty the Queen - v. -, 2011 SKPC 184

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 184 Date: December 2, 2011 Information: 24164348 Location: North Battleford _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jan A. Alsager Appearing: Inez Cardinal, Q.C. For the Crown Thomson Irvine For the Attorney General of Saskatchewan G. Rangi Jeerakathil For the Accused JUDGMENT D.J. KAISER , J CHARGES [ 1 ] Jan A. Alsager is charged as follows: COUNT 1: On or between the 1 st day of October 2007 and the 7 th day of February 2008 at or near Maidstone in the Province of

Saskatchewan, without a permit issued pursuant to subsection 10(1), unlawfully export from Canada any animal or any part or derivative of an animal contrary to Section 6(2) of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, R.S.C., 1992, c. 52. COUNT 2: On or between the 1 st day of October 2007 and the 7 th day of February 2008 at or near Maidstone in the Province of Saskatchewan, without having first obtained an export licence pursuant to this Act or the regulations, export or cause to be exported any wildlife from Saskatchewan, contrary to Section 31(1)(

a) of The Wildlife Act, 1998, S.S. 1889, c. W-13.12. FACTS [ 2 ] On or about January 30, 2008, the accused, Mr. Jan A. Alsager entered the United States of America, from a point within Saskatchewan, and hence Canada, carrying nine sets of white-tailed deer antlers, one set of elk antlers and an elk hide. These items all originated from a licenced domestic game farm in the area of Maidstone, Saskatchewan. The farm was operated by a corporation called Idanell Korner Ranch Ltd. That corporation is controlled by Erick (also known as Rick) Alsager, who is the accused’s father.

The licence to operate the domestic game farm was issued to Rick Alsager. Jan Alsager referred to this operation as a family farm, and testified that he had been involved in it, to some degree, all of his life, though he did not deal with the record keeping or directly with the animals. [ 3 ] The antlers and hide came from animals that had been shot in Saskatchewan by people from the United States.

Through a corporation called Blackrock Ranching Ltd. (owned and operated by the accused), the accused contracted with these American individuals so that the Americans would come to Saskatchewan to the Idanell Korner Ranch and be allowed to kill an animal having antlers of a designated size. The animals in question were held in a captive environment behind a high fence and were killed in that circumstance. This activity is referred to as “hunting” in the evidence, and I will use that term in this judgment, though not everyone would agree that what took place would be accurately described by that word.

The fee for the taking of a white-tailed deer would begin at $5,000.00 and could range up to $8,500.00, or even higher depending on the size of the antlers. The desire to possess the antlers, as a trophy, was a significant part of the motivation to enter into the contract. [ 4 ] When Mr. Alsager crossed into the United States with the antlers and the hide, he was in possession of a certificate issued under s. 20 of The Domestic Game Farm Animals Regulations (DGFAR) in respect of the elk antlers and the elk hide. This certificate was issued by the Department of Agriculture of Saskatchewan.

It was stamped “not for the export of white-tailed deer”. The Crown does not argue that the export of the elk hide and antlers was illegal, given the certificate. It points to the certificate because of the stamp. Both Rick Alsager and Jan Alsager knew that the Saskatchewan authorities were not going to issue similar certificates to them authorizing the export of white-tailed deer antlers.

Moreover, it was clear to each of them that the province was not going to give them any other assistance with respect to exporting any white-tailed deer items. [ 5 ] The underlying issue between the Alsager family and the province is that the provincial officials believe that Mr. Rick Alsager had unlawfully imported white-tailed deer into Saskatchewan from Alberta. More particularly, the belief was (and is) that he had not obtained an import licence for the deer, as required by ss. 31(1)(

b) of The Wildlife Act, 1998 , though he had obtained a Transportation Permit from the federal body called the Canadian Food Inspection Agency (CFIA). Exhibits D-11 and D-12 were presented in evidence by the Defence and are copies of Transportation Permits issued in 2002 and 2003 for moving 77 male white-tailed deer and 25 male white-tailed deer, respectively from two Alberta farms to Idanell Corner ( sic) Ranch and Rick Alsager. The position of the Defence is that no provincial import permit was required because the deer were not wildlife.

I find as a fact that white-tailed deer were moved from Alberta to Saskatchewan by Rick Alsager to Idanell Korner Ranch in 2002 and 2003, as shown on D-11 and D-12. The Crown evidence is that no import permits or licences for white-tailed deer were ever obtained by Mr. Alsager or his corporation. This evidence is uncontested by the Defence. Regardless of the placement of onus in respect of this issue, I find that no import licences or permits were ever obtained in respect of any of the white-tailed deer discussed in this judgment.

It is of note that D-12 has a passage prominently displayed and printed in capital letters that reads: CERTAIN PROVINCES HAVE REQUIREMENTS AFFECTING THE MOVEMENT OF CERVIDAE INTO THEIR PROVINCES THAT ARE NOT FULFILLED BY ISSUANCE OF THIS PERMIT. YOU ARE ADVISED TO CONTACT THE VETERINARY AUTHORITIES IN THE DESTINATION PROVINCE TO DETERMINE WHETHER THEY HAVE RESTRICTIONS ON THE MOVEMENT OF CERVIDAE. [ 6 ] When Mr. Jan Alsager entered the United States with the deer antlers, the only documents in his possession pertaining to

those antlers were D-11 and D-12, being the copies of the Transportation Permits issued in 2002 and 2003. Both had long ago expired, but Mr. Alsager presented them to the American authorities as proof of ownership. Mr. Jan Alsager’s name does not appear on these documents, but they seem to have been accepted nonetheless. Mr. Alsager completed certain forms presented by the American border officials, and was allowed entry into the United States with the antlers. At the time of entry there were no labels or tags or other markings on or attached to the deer antlers.

The names of the hunters had not yet been written on the copies of the Transportation Permits (D-11 and D-12). This happened after Mr. Alsager returned to Canada. [ 7 ] After entry into the United States, Mr. Alsager travelled to Great Falls, Montana, and there, using string, attached a cardboard tag to each set of antlers. The tag gave the first name of the hunter who apparently shot the animal, and no other information. He boxed the antlers and shipped them to Thomas Lightsey of Centreville, Alabama. Four sets of antlers were picked up from Mr. Lightsey by the hunters concerned.

Thereafter, the other five sets were seized by the American Fish and Wildlife Service at the behest of the Saskatchewan authorities. [ 8 ] When Mr. Lightsey received the antlers the only accompanying documents were the cardboard tags. Mr. Jan Alsager testified that he had taken the white-tailed deer hides to be dry salted in North Battleford, Saskatchewan and intended to ship the hides along with further documentation at a later date. It would seem that those hides had with and attached to them the tags referred to in the evidence as the Health of Animals tags.

The numbers on those tags would apparently correspond to numbers on D-11 and D-12, though neither the hides nor the tags were produced to the Court. ISSUES Are white-tailed deer that are kept for the purpose of producing products such as meat, hide, and antlers, and that are bred, born, raised, ultimately killed in captivity nonetheless “wildlife ” within the meaning of The Wildlife Act, 1998 ? Could the deer in the present case be lawfully exported without an export licence? If the antlers were products from domestic game farm animals, were they adequately labelled for purposes of export? Is

section 31 of The Wildlife Act, 1998 constitutionally invalid as being vague or overbroad to the extent that it applies to the export of domestic game farm animals or their products? Does the accused have a defence of due diligence? How does

section 8 of the WAPPRIITA Regulations affect the exporting from Canada provisions of subsection 6(2) of WAPPRIITA ? ANALYSIS [ 9 ] In this judgment I will be making reference to the case of R. v. Carlin Nordstrom, 2011 SKPC 166 , which is a decision that I gave on October 28, 2011. It dealt with many of the issues that arise in this case. The decision in Nordstrom was given after the decision of Madame Justice Wilson in R. v. Marsland (J.C.) , 2011 SKQB 207 , [2011] Sask. R. TBEd. JN.011, and many aspects of the Nordstrom decision are largely dependent on that decision.

Counsel in the present matter were among the counsel in both of those cases. It should be noted that counsel made their written and oral submissions in the present matter before either of the above mentioned two decisions were rendered. [ 10 ] These charges are regulatory in nature, as were the charges in Marsland , and all but one of the charges in Nordstrom . Accordingly, the statutes in question must be interpreted purposively and liberally as described by Judge Halderman in R. v. Hayworth ,

2003 SKPC 52, 231 Sask. R. 204, at paragraph 12, as quoted in Nordstrom at paragraph 77. Further, the charges in the present case arestrict liability offences as per Mr. Justice Dickson in R. v. City of Sault Ste. Marie, (SCC), [1978] 2 S.C.R. 1299. He setout the nature of such offences at page 1325 in the following terms: 2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act primafacie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care.

This involvesconsideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonablybelieved in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid theparticular event. These offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey’s case.

Are white-tailed deer that are kept for the purpose of producing products such as meat, hide, and antlers, and that are bred,born, raised, ultimately killed in captivity nonetheless “wildlife” within the meaning of The Wildlife Act, 1998? [11] The definition of “wildlife” in The Wildlife Act, 1998 is set out in s. 2, as follows: “wildlife” means a vertebrate animal of any species, excluding fish, that is wild by nature in Saskatchewan 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; [12] The Defence submission is that the animals taken on Idanell Korner Ranch were domestic game farm animals and not wildlifebecause they were not wild. They were domesticated. Where a statute defines a word within it, the Court must interpret the statute noton the basis of the common meaning of the word, but rather on the basis of the legislated definition.

In Nordstrom, at paragraphs 79 to83, I dealt with this issue and found that all white-tailed deer (and all elk) regardless of the circumstances in which they are born, raised,held or killed are wildlife within the meaning of the Act. The ultimate reason for so holding was that in my view, the phrase “wild bynature” modifies the word “species” and not the word “animal”.

Therefore, in deciding the question of whether or not an individualanimal is wildlife, we look to the circumstances of the species to which that animal pertains, and not to the circumstances of theindividual animal. [13] The Defence also argues that the terms “wildlife” and “domestic game farm animal” as used in Saskatchewan legislation aremutually exclusive (Defence Brief of Law paragraph 39). I cannot agree. An individual animal may be both “wildlife” and a “domesticgame farm animal” at one and the same time.

It is simply a matter of deciding whether the animal concerned fits within either, both of,or none of the

definitions set out in the applicable legislation. There is no legal or logical conflict in a finding that a given animal fallswithin both

definitions, and accordingly is subject to all legislative provisions applicable to other animals falling within that definition. [14] Further, there are legislative provisions that contemplate that a given animal is covered by both

definitions. One clearexample is ss. 4(6) of The Wildlife Regulations, 1981 which provides: 4(6) For the purposes of clause 24(1)(

b) of the Act, a domestic game farm licence constitutes a licence for the purposes of authorizingpossession of wildlife that are domestic game farm animals. (underlining added.) Could the deer in the present case be lawfully exported without an export licence? [15] At all material times, Erick Alsager (the accused’s father) held a domestic game farm licence pursuant to DGFAR. Heimported the deer that were ultimately exported by the accused from Alberta farms in 2002 and 2003. No one had obtained a provincialimport licence to import any of these deer into Saskatchewan. For the following reasons, I am satisfied that such import was unlawful. [16]

Section 31 of The Wildlife Act, 1998 then existed in its present form. It reads:

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. [ 17 ] The Domestic Game Farm Animal Regulations came into effect in 1999. The accused testified that there were no protocols at the time of the import. Whether or not that was so, DGFAR was in effect, and contained

section 15. It has not changed since that time and reads, in part: 15(1) No person, without obtaining an import licence and complying with any import restrictions or protocols imposed by the minister pursuant to The Diseases of Animals Act and any regulations made pursuant to that Act , shall import any of the following into Saskatchewan: (

a) live domestic game farm animals; (

b) domestic game farm animal semen; (

c) domestic game farm animal embryos. [ 18 ] In the Regulations , import licence means a licence issued pursuant to The Wildlife Act, 1998. [ 19 ] Given the foregoing, it is clear that when Rick Alsager imported the deer into Saskatchewan he did it unlawfully. He was in breach of The Wildlife Act, 1998 in that the deer were wildlife, and, if the animals were also domestic game farm animals, he was in breach of ss. 15(1)(

a) DGFAR . [ 20 ] The foregoing deals with the importing of the deer, which took place quite some time ago. It does not directly address the question of lawful export.

Section 13 of The Captive Wildlife Regulations (which are made pursuant to The Wildlife Act, 1998) provides: 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 (should read as s. 31) of the Act .

(2) Notwithstanding subsection (1) but subject to subsection (3), a person who holds a valid licence pursuant to The Domestic Game Farm Animal Regulations may export domestic game farm animals without an export licence.

(3) A person who holds a valid and subsisting licence described in subsection (2) who imports or exports wildlife for a purpose other than that mentioned in subsection (2) shall comply with subsection (1). [ 21 ] Rick Alsager held a valid licence pursuant to DGFAR at all material times, and hence it would appear that at least he would have the power to export domestic game farm animals without obtaining a licence. However, there remains the question of whether the deer in question were domestic game farm animals? [ 22 ] For present purposes, the definition of domestic game farm animal is found is ss. 2(

e) of DGFAR and reads: (e) "domestic game farm animal" means an animal that is held for the purposes of producing products and that: (

i) 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 ;

[ 23 ] These animals are obviously of the designated species, and the purpose of having them at Idanell Korner Ranch is to produce products, as that term is defined in the relevant statutes and regulations. In my view the issue turns on the meaning of the word “held”. Does this mean simply physically controlled or does it mean “lawfully held”? It is my view that it means “lawfully held”.

Otherwise, a licenced domestic game farmer could capture a free ranging deer without any permit, licence or other authority, and so long as he held it for purposes of producing products, his possession and ultimate export would be authorized by his licence. Clearly this is not the intent of the legislation. [ 24 ] On the question of whether the deer in this case were lawfully held, I view the following provisions as relevant. Sections 23 and 24 of The Wildlife Act, 1998 read as follows: 23(1) Subject to

section 24, the property in all wildlife within Saskatchewan, including any wildlife that has been unlawfully hunted, is vested in the Crown.

(2) No person shall acquire any right or property in any wildlife otherwise than in accordance with this Act and the regulations. 24(1) Subject to this Act and the regulations, a person has all property rights, title and interest in and to any wildlife where that person: (

a) is in possession of the wildlife; and (

b) has a licence authorizing possession of the wildlife.

(2) Where a person mentioned in subsection (1) contravenes any of the provisions of this Act or the regulations respecting the wildlife under his or her control, all property rights, title and interest in and to the wildlife may be forfeited to the Crown at the discretion of the minister. [ 25 ]

Section 23 essentially provides that all property in wildlife is in the Crown, except for situations under s.

Section 24 says that a person has property in wildlife that is in the person’s possession, providing that they have a licence that authorizes such possession, with the added limitation that the holding of such property rights is still subject to the Act and the Regulations. [ 26 ] Subsection 4(6) of The Wildlife Regulations, 1981 provides: 4(6) For the purposes of clause 24(1)(

b) of the Act , a domestic game farm licence constitutes a licence for the purposes of authorizing possession of wildlife that are domestic game farm animals. [ 27 ]

Section 9 of DGFAR provides: 9 No person shall obtain a domestic game farm animal or a big game animal unless: (

a) the animal is kept by a person who holds: (

i) a valid domestic game farm licence issued pursuant to these regulations; or (ii) a valid licence issued pursuant to The Captive Wildlife Regulations ; or (

b) the animal is imported in accordance with these regulations. [ 28 ] “Big game animal” is defined in DGFAR as follows: (b) "big game animal" means any of the following animals that is not held in captivity or that is held in captivity but not for the purpose of producing animal products: (

i) an antelope; (ii) a caribou;

(iii) an elk; (iv) a moose; (

v) a mule deer; (vi) a white-tailed deer; [ 29 ] The effect of this definition is that any animal of the named species that is not a domestic game farm animal is included in the term “big game animal”. Therefore, s. 9 applies to all white-tailed deer, all elk, all mule deer, etc. that are domestic game farm animals and all such animals that are not domestic game farm animals. Therefore no one (whether or not they hold a domestic game farm licence) can lawfully obtain such an animal, without complying with s. 9. [ 30 ] In my view, ss. 9(

a) deals with obtaining the animal from someone else who holds the animal pursuant to one of the two named types of licences. Paragraph (

i) means another person who holds a domestic game farm licence, issued under Saskatchewan’s DGFAR . That person would necessarily operate a domestic game farm within Saskatchewan and the deer would have to be on that farm. A person who holds a similar domestic game farm licence from another province (such as Alberta) is not included within the paragraph. A similar analysis applies to paragraph (ii). Ultimately, under ss. 9(

a) the animal must already be within Saskatchewan. Subsection 9(

b) deals with the situation where the animal is outside of Saskatchewan, and requires that a person obtaining the animal through import must comply with the importing provisions of DGFAR, which means that pursuant to ss. 15(1) they must obtain an import licence pursuant to The Wildlife Act, 1998. [ 31 ]

Section 9 of DGFAR means that a person who brings the animal into Saskatchewan without obtaining an import licence cannot lawfully obtain the animal. Wildlife that is not lawfully obtained cannot be lawfully held. Therefore, the deer in the present case, having been imported without a licence, were not lawfully held and therefore do not fit within the definition of domestic game farm animal. It follows that the deer could not be lawfully exported under ss. 13(2) of The Captive Wildlife Regulations by Rick Alsager or by anyone else without obtaining an export licence.

Jan Alsager did export them without such a licence.

If the antlers were products from domestic game farm animals, were they adequately labelled for purposes of export? [ 32 ] The question of whether the antlers were properly labelled for purposes of export is only relevant if my conclusion that the animals in question were not domestic game farm animals is in error. [ 33 ] Subsection 18(2) of DGFAR reads: 18(2) Subject to subsection (3), every domestic game farm operator who slaughters or authorizes the slaughter of a domestic game farm animal on his or her domestic game farm shall ensure that the hard antlers, horns, hide and carcass of the animal are labelled with the following particulars before they are removed from the farm: (

a) the date of the slaughter; (

b) the unique identification of the animal; (

c) the species and sex of the animal; and (

d) the domestic game farm licence number or the name of the domestic game farm operator. [ 34 ] The subsection does not expressly mention export. In Nordstrom , I found that a licenced game farm operator may export domestic game farm animals without further licence or permit if they comply with the licencing requirements of ss. 18(2). The primary paragraphs are 119 to 121 and they read as follows: 119. The position of SE and SAFRR with respect to the export of domestic game farm animals from a provincially licenced game farm

119. The position of SE and SAFRR with respect to the export of domestic game farm animals from a provincially licenced game farm(whether located on a First Nation or not) requires some discussion. Given s. 13 of The Captive Wildlife Regulations it is clear that aprovincially licenced game farm operator can export without a further licence. Does this mean that the operator must also comply witheither s.18(2) or s. 20 of DGFAR? Given the purposive and liberal approach to

interpretation of these regulatory provisions (seeHayworth (supra)), I am persuaded to the view that s. 18(2) must be complied with in order to export lawfully. One of the purposes ofDGFAR is to provide a means of tracking of animals and animal products. There would seem to be no reason to think that this need fortracking ends merely because the product in question crosses a provincial boundary or an international border. While I do find this to bethe law, it is not ultimately necessary to the decision in this case, as will be subsequently seen. 120.

The position of the Defence is that no permit is actually required to export wildlife because, if ss. 18(2) of DGFAR is compliedwith, the wildlife can be exported without a permit. Therefore no permit is required for export under either ss. 31(1)(

a) of The WildlifeAct, 1998 or the exporting provisions of WAPPRIITA. I will deal with the WAPPRIITA question subsequently. In so far as this positionapplies to The Wildlife Act, 1998, I do not agree. The fact is that a licence, which is the word used in ss. 31(1)(a), is required. It is thelicence issued to the domestic game farm operator. However, it is probably more correct to say that the licenced domestic game farmoperator falls within the phrase “Subject to the regulations, ...” where it is used in s. 31, and thereby enjoys an exemption, as set out in ss.13(2) of The Captive Wildlife Regulations. 121.

I therefore hold that a provincially licenced game farm may export domestic game farm animals and products without anyadditional licence if they comply with s. 18(2) of DGFAR. [35] This reasoning is equally applicable to the present case, and hence I must decide whether or not the antlers were labelled ascalled for in ss. 18(2). [36] At the time that the antlers crossed the international border, nothing whatsoever was attached to them. Mr. Alsager did havewith him Exhibits D-11 and D-12. At that time, the writings pertaining to shipping in February of 2008 were not on those documents.

There are 102 animals listed on D-11 and D-12. The documents did not identify which of the 102 numbers is applicable to which set ofantlers. Therefore, meaningful tracking, or indeed, any tracking was not possible. The fact that Mr. Alsager may have known which setof antlers corresponded with which number is not relevant. Labelling is for third party purposes. The antlers in the present case were notlabelled in any way. Nothing was attached, fixed or tied to them.

It necessarily follows that the requirements of ss. 18(2) were not met. [37] Subsection 18(2) expressly requires that the domestic game farmer ensure proper labelling. Jan Alsager is not a licenceddomestic game farmer. He argues that when he carried the antlers across the international border, he was acting as agent for theAmerican hunters only, and hence bore no responsibility for any possible failing of the domestic game farmer. In my view, thisargument must fail. First of all, at the time of this transport, he was acting as agent for both his father and the hunters.

He was fulfillingthe obligations of the hunt farm to provide the trophy to the hunter and he was assisting the hunter in transporting the trophy. Secondly,in my view, the ss.18(2) labelling must be on the products, regardless of who carries them. This is the only way that tracking purposecan be accomplished. Is

section 31 of The Wildlife Act, 1998 constitutionally invalid as being vague or overbroad to the extent that it applies to theexport of domestic game farm animals or their products? [38] In the accused’s Constitutional Notice, he takes the position that s. 31 of The Wildlife Act, 1998, offends

section 7 of theCharter of Rights and Freedoms in that it is vague. The accused’s written submissions and oral submissions argue that the provision isoverbroad. The Defence position is that overbreadth is a subset of vagueness. I do not agree that it is a subset. However, overbreadthmay be an aspect of vagueness, or it may be an independent principle of fundamental justice. (See R. v. Biller (V.K.) et al. (1999), (SK CA), 177 Sask. R. 161; 199 W.A.C. 161 (C.A.) at paragraphs 21 and 22, and R. v. Spindloe (M.), 2001 SKCA 58, 207Sask.

R. 3 (C.A.); 247 W.A.C. 3 at paragraph 87.) To the extent that the present case engages either principle, it does so independentlyand therefore I will address each in turn. [39] The doctrine of vagueness is defined in R. v.

Nova Scotia Pharmaceutical Society et al. (No. 2), (SCC),[1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R. (2d) 91; 313 A.P.R. 91; 74 C.C.C. (3d) 289; 15 C.R. (4th) 1; 43 C.P.R. (3d) 1; 93 D.L.R.(4th) 36; 10 C.R.R. (2d) 34, by Gonthier J. at paragraph 72 as follows: The doctrine of vagueness can therefore be summed up in this proposition: a law will be found unconstitutionally vague if it so lacks inprecision as not to give sufficient guidance for legal debate.

This statement of the doctrine best conforms to the dictates of the rule oflaw in the modern State, and it reflects the prevailing argumentative, adversarial framework for the administration of justice.

[40] The difficulties with this area of law stem from the reality that one must look to a number of different Acts and Regulations. At times certain provisions seem contradictory or repetitive. However, as tedious and tiresome as this process may be, with adequatestudy there is sufficient guidance for legal debate. Obviously in Nordstrom, I found adequate precision in the provisions to reachconclusions as to how the law operates. Accordingly, I find that the provisions in question are not constitutionally vague. [41] The bulk of the Defence constitutional submissions focussed on overbreadth. The argument is that section 31(1)(

a) is overlybroad to the extent that it requires an export licence to export a domestic game farm animal, or the products from one. The accusedstates that the purpose of the Act “...is to promote the conservation and management of wildlife within the province, which includes theimportation and exportation to and from Saskatchewan” (Defence Brief of Law, paragraph 74). He further submits that the legislature’sintent in fashioning the Act was to conserve and manage free range wildlife and was not intended to regulate domestic livestock.

I take itthat he includes domestic game farm animals within the term domestic livestock. The upshot of the submission is that there is no validlegislative purpose in lumping domestic game farm animals with free ranging wildlife and that doing so is arbitrary. [42] Overbreadth, as an independent principle, was enunciated by Mr. Justice Cory in R. v.

Heywood (R.L.), (SCC), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161; 120 D.L.R. (4th) 348; 94 C.C.C. (3d) 481, at S.C.R. page792, also at B.C.A.C. paragraph 49, as follows: Overbreadth analysis looks at the means chosen by the State in relation to its purpose. In considering whether a legislative provision isoverbroad, a court must ask the question: are those means necessary to achieve the State objective?

If the State, in pursuing a legitimateobjective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will beviolated because the individual's rights will have been limited for no reason.

The effect of overbreadth is that in some applications thelaw is arbitrary or disproportionate. [43] Cory J. expressed the need for judicial caution in approaching this analysis, at S.C.R. page 793 and at B.C.A.C. paragraph 51,as follows: In analyzing a statutory provision to determine if it is overbroad, a measure of deference must be paid to the means selected by thelegislature. While the courts have a constitutional duty to ensure that legislation conforms with the Charter, legislatures must have thepower to make policy choices.

A court should not interfere with legislation merely because a judge might have chosen a different meansof accomplishing the objective if he or she had been the legislator. [44] He went on to express the concluding test, at S.C.R. page 794 and B.C.A.C. paragraph 52, as follows: However, before it can be found that an enactment is so broad that it infringes s. 7 of the Charter, it must be clear that the legislationinfringes life, liberty or security of the person in a manner that is unnecessarily broad, going beyond what is needed to accomplish thegovernmental objective. [45] In order to address an overbreadth argument it is necessary to first interpret the legislation. (Ontario v.

Canadian Pacific Ltd., (SCC), [1995] 2 S.C.R. 1031; 183 N.R. 325; 82 O.A.C. 243.)

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

[46] Under this section, a person who exports wildlife will be convicted unless he shows that he holds a licence, or that he fallswithin an exemption or exception provided for in the Regulations, or that some other defence known to law appears in the evidence. Aproperly licenced domestic game farm operator who exports a domestic game farm animal, in a way that complies with DGFAR, enjoyssuch an exemption or exception. This is found in ss. 13(2) of The Captive Wildlife Regulations (previously set out).

Thus a properlylicenced and operating domestic game farm operator may export products merely by labelling them in accordance with ss. 18(2) ofDGFAR. This is not an onerous requirement. It is much like labelling requirements for many other products and goods. Exportproblems arise for those who are not otherwise operating in a lawful manner. [47] The state objective of the legislation is set out in the

long title of The Wildlife Act, 1998, as

an Act respecting the Protection ofWildlife and Wild Species at Risk. The Act endeavours to protect wildlife from various dangers including, but not necessarily limited to,disease, over hunting, and loss of habitat. I find that the intention is to protect all wildlife. This would include free ranging animals andthose held in captive circumstances, though the emphasis in the Act is on protecting free ranging animals.

An example of the protectionof captive wildlife is found in ss. 24(2) of the Act, which provides that ownership of wildlife may revert to the Crown if the personhaving control of the animal “...contravenes any of the provisions of this Act or the regulations respecting the wildlife under his or hercontrol...”. [48] There is a valid legislative concern in controlling the export of wildlife (in this case white-tailed deer) for this allows thecontrol of unregulated or excessive harvesting of this species. The greatest concern is for free ranging deer.

The problem is that it is notpossible to tell free ranging deer from domestic game farm deer once the animal in question has been reduced to animal products such asmeat or antlers. Provincial authorities examining an animal product for export or for any other purpose must have some way of knowingits origin, and accordingly, the animal or animal product must be identified in some way. If the animal or its products are the result oflawful hunting of a free range animal, the animal or animal products are to be accompanied by a valid hunting licence and theappropriate seal is to be attached to the product.

In some circumstances and for some purposes the hunter must also accompany theanimal product, as mandated in s. 51 of The Wildlife Regulations, 1981. Alternately, the lawfully hunted product may be accompaniedby an export permit issued under ss. 31(1)(a), but that permit would only be issued upon satisfying the requisite authority that it shouldbe issued. If the animal product is from a properly licenced and operated domestic game farm, no licence (other than the domestic gamefarm operator licence) is required, if the product in question is labelled in accordance with s. 18(2) of DGFAR.

If the product is labelledin this way, a check can be made as to the licencing of that operator, and as to the unique identification of the animal concerned. Thisalso allows for tracking, in the event of an outbreak of disease. If the requisite seal or label is not affixed to the animal or animalproduct, or there is no export licence with the animal, it would appear that the animal concerned may have been unlawfully harvested.

Ifanimals from domestic game farms could be exported without licencing or labelling, any number of free ranging animals, and theproducts from them, could be exported under the guise of being of domestic game farm origin. Protection of free ranging wildlife wouldbe impossible. [49] The legislative objective of protecting wildlife cannot be achieved without regulating, monitoring and tracking the export ofall animal products originating from animals of the same species.

I find that the method chosen is not unnecessarily broad, andaccordingly, I find that it does not infringe s. 7 of the Charter of Rights and Freedoms. The defendant’s constitutional application isdismissed. Does the accused have a defence of due diligence? [50] The defence of due diligence is available with respect to strict liability offences. (R. v. City of Sault Ste. Marie, (SCC), [1978] 2 S.C.R. 1299.) The charges presently before the Court are of that variety.

The defence of due diligence “...will beavailable if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if hetook all reasonable steps to avoid the particular event” (page 1326). This defence is based on a mistake of fact. If an accused’s defenceis based on a mistake of law, or mistake of mixed fact and law, he or she might have a defence based upon the doctrine of officiallyinduced error.

The onus falls to the accused person to establish the defence of due diligence on a balance of probabilities. [51] The defence argues due diligence, but the argument does not identify what the mistake was or what efforts were made toavoid the illegal act. If the mistake was a belief that Mr. Erick Alsager had in fact obtained a permit under ss. 31(1)(

b) that would haveauthorized the original import of the deer, this is not proven, and it falls to the Defence to prove it. If anything, the evidence suggeststhat the accused knew that such a permit had not been obtained. If the mistake was that the accused did not believe that an import permitwas legally required, then the mistake was a mistake of law, in which case the accused would have to rely on officially induced error. InLévis (City) v. Tétreault; Lévis (City) v. 2629 4470 Québec inc., [2006] 1 S.C.R. 420, 2006 SCC 12, Madame Justice LeBel listed sixelements that the accused must establish to rely on this defence. They are:

(1) that an error of law or of mixed law and fact was made; (2) that the person who committed the act considered the legal consequences of his or her actions; (3) that the advice obtained came from an appropriate official; (4) that the advice was reasonable; (5) that the advice was erroneous; and (6) that the person relied on the advice in committing the act. [ 52 ] The accused has failed to establish most of these elements, but the clearest failure is in respect of the third element being the requirement that the advice be obtained from an appropriate official. [ 53 ] If the mistake was that the accused did not realize that the unlawful importing of the deer resulted in them not having the status of domestic game farm animals, this too would be a mistake of law.

Similarly, if he was mistaken as to the labelling requirements, this would be a mistake of law. [ 54 ] It may be that the accused thought that the failure of the authorities to prosecute his father or Idanell Korner Ranch Ltd. in respect of the import of the deer meant that their import was legal. The failure to prosecute does not have this result. ( R. v.

Shiner (W.) , 2007 NLCA 18 , 264 Nfld. & P.E.I.R. 186 (NLCA); 801 A.P.R. 186.) Moreover, this too would be a question of law, and the accused has failed to meet the Levis criteria. [ 55 ] Some of the accused’s evidence could be taken as meaning that he believed that by meeting the American requirements for importing these items into the United States, he had met the Saskatchewan and Canadian requirements of exporting these items from Canada and Saskatchewan. As a matter of law this simply is not so.

The law of the United States of America has its requirements for import and the laws of Canada and Saskatchewan have their requirements for export, and there is no logical or legal reason to think that these requirements would be the same. Again, if there is a mistake here, it would be a mistake of law and the accused has failed to meet the Levis criteria. [ 56 ] It is clear in this case that the accused knew that the provincial authorities held the view that neither Erick Alsager nor Idanell Korner Ranch Ltd. could lawfully export the deer. That is why the

section 20 certificate had the endorsement on it, in respect of white- tailed deer. The accused decided to give it a try and see what happened. This is not due diligence. How does

section 8 of the WAPPRIITA Regulations affect the exporting from Canada provisions of subsection 6(2) of WAPPRIITA ? [ 57 ] In Nordstrom at paragraphs 129 to 135 , I came to the conclusion that the exporting offence set out in ss. 6(2) of WAPPRIITA has no application to the exporting from Canada of deer or elk from within Saskatchewan. In the interests of the long term survival of the forests, I will not reproduce those passages here, but I will obviously apply them. The result is that I find Mr. Alsager not guilty of the WAPPRIITA count. CONCLUSION [ 58 ] I find the accused not guilty of Count 1.

If my conclusion as to the effect of s. 8 of the WAPPRIITA regulations is in error, then the crown has proven the accused’s guilt beyond a reasonable doubt on Count1, but I anticipate that the Crown would not be asking for a conviction on that Count, given the finding on Count 2. I find the accused guilty on Count 2 in respect of all nine sets of white- tailed deer antlers that he carried across the international boundary. Dated this 2 nd day of December, 2011.

__________________________________ D. J. Kaiser, J