R v Kalin, 2023 ABCJ 143

In the Alberta Court of Justice Citation: R v Kalin, 2023 ABCJ 143 Date: 20230623 Docket: 201223724P1 Registry: Calgary Between: His Majesty the King Crown - and - Wayne Spencer Kalin Accused Decision of the Her Worship Justice of the Peace L. D. Henderson Nature of the Proceedings [ 1 ] In this matter it is alleged that the defendant, Wayne Spencer Kalin, did: Count 1: On or about the 1st day of November, 2020, at or near the village of Caroline, in the Province of Alberta, did hunt wildlife, to it: moose, or discharge of firearms on or over occupied land for the purpose of doing so, without the consent of the owner or occupant of it, contrary to

section 38 subsection two of the Wildlife Act , RSA 2000,

chapter W 10 and amendments thereto. Count 2: On or about the 1st of November 2020 add or near the village of Caroline, in the province of Alberta, did unlawfully possess wildlife, to wit: moose contrary to

section 55 subsection one of Wildlife Act , RSA 2000,

chapter W-10 and amendments thereto. [ 2 ] Although these chargers are colloquially considered “tickets” under the Alberta governing legislation, Provincial Offences Procedures Act , RSA 2000, c P-34 , Mr. Kalin was charged under a long form information by the Sheriff’s Branch of the Fish and Wildlife Enforcement Services. Factual Overview: [ 3 ] The facts of what happened on November 1, 2020, are largely not in dispute. For reference, the parties involved are as follows: Crown Witnesses: (Of note, the prosecution did not call any police or wildlife officers.)

• “Susan” - Susan Margaret Stevens (also referred to as Susan Harder by the accused)– the owner of the property • “Candace” – Candace Terrio – the co-lessee of the property, wife to Stephen Terrio and daughter of David Andrew Sather • “Stephen” – Stephen Terrio – the co-lessee of the property, husband to Candace Terrio • “Dave” David Sather – a resident of the property, father of Candace Terrio Defence Witnesses • “Mr. Kalin” – the defendant • “Mr. Price” – Edmond Stephen Price, defence witness and friend of the accused, referred to as “Steve.” [ 4 ] The defendant, Mr.

Kalin, a long-time resident of the Caroline, Alberta area is an avid hunter. In previous years he unsuccessfully submitted applications to be granted a permit to hunt a moose through the lottery system but never received his tag until 2020. Mr. Kalin described the process as having “to put in for a specified draw with a zone and whether it be male or female of the species. And I picked the female and I got drawn” (May 25, 2023 Transcript, p 3). Mr. Kalin was “ecstatic” to have been selected for a tag to hunt a mature female moose after 16 unsuccessful years of applying. [ 5 ] Mr.

Kalin also knew exactly where he wanted to hunt, a particular acreage near Caroline, Alberta owned by a person he identified as Susan Harder (but was sworn in under the name Susan Stevens). He knew there were plenty of moose known to be in that area. Some time after obtaining his tag, but prior to the official opening of hunting season, either by intention or coincidence, he met up with Susan Harder at a grocery store and asked her for the needed permission to hunt on her property. In his words: I asked her for permission and I said, It'll be two shots, it'll be done.

And it's taken -- I told her it took me 16 years to get it and she said that she'd give me permission, but I have to ask the renters explicitly for permission. She was rather adamant about it (May 25, 2023 Transcript, p 5). [ 6 ] Susan’s recollection is largely similar to that of Mr. Kalin in that she said the renters would have the ultimate say: I said, good for him. I was happy he got his moose draw for that zone, and we went on and he was talking about hunting on my place, and I said, I don't give permission to anyone.

My renters live there, my renters know what's going on, so you would have to go talk to them. If anything changes, I said, I would get a hold of him. [ 7 ] However, on cross examination, Susan denied saying that she personally would permit the hunting if it were up to her (February 24, 2023 Transcript, p 11): Q Okay. Might the conversation have been along the lines of, I -- I would give you permission but I have essentially given that authority to my renters?

A No, not -- no, sir. [ 8 ] Regardless, there is no doubt that she was emphatic that permission needed to be sought from the renters, Candace and Stephen Terrio. [ 9 ] Mr. Kalin was merely acquainted with Candace and Stephen Terrio. However, at two prior run-ins between Candace and Mr. Kalin, the subject of hunting on the property arose. On both occasions, Candace reiterated her position that the Terrios would not permit hunting on their rental property.

Candace explained why she was completely against any hunting on the property (February 24, 2023 Transcript, p 16): Because I don't give anybody permission because my horses are in there and we had quite often -- not so much now - our kids are older - but our daughter and some neighbour kids would play down there in the trees and you can't always see them down there, so between our livestock, which are -- you know, I don't want anyone shooting my livestock and I definitely don't want anybody shooting at the kids or anything by accident or anything like that so -- [ 10 ] Candace also testified that she had twice denied Mr.

Kalin’s request to hunt on the property she rented with her husband (February 24, 2023 Transcript, p 17): Q And what about Mr. Kalin? Had you ever had a conversation with him about hunting? A Yes, he did come and – Q And -- A -- ask. He asked in 2019 in the fall and I told him no and explained why and – yeah. Q Okay. And where did that conversation happen at?

A In my -- in my yard. [ 11 ] She testified that the subject had come up one other time prior to the 2019 conversation in her yard, at a neighbourhood New Years Eve party on Dec 31, 2018-January 1, 2019 when she overheard him talking about wanting to hunt on her rental property: Q Okay. So, tell us -- tell the court about that occasion?

A When I was at the New Year's party -- I don't believe he knew that I lived there at that point. We hadn't been there a whole lot, and I wasn't home a lot so I didn't really know a lot of the neighbours, I only knew a couple, and he was speaking about hunting on that property and – Q Was he speaking to you or to – A Not to me. To others that were there. Q Okay. A I was standing not far. Like, it was kind of general, just talking. There wasn't a whole lot of people there. It was very small.

And how he would be hunting there again and he didn't care, you know, whatever, and I just kind of said, Well, no, I'm, like -- actually I am -- we live there now and, no, like, we don't -- no, there'll be problems because kids and horses and livestock -- like, no, we don't allow hunting there. [ 12 ] On cross-examination, Mr. Kalin agreed that he was previously denied permission to hunt on the property by Candace, but his recollection was that it was several years earlier than Candace’s recollection (May 25, 2023 Transcript, p 20): Q Okay.

So that conversation with Candace where she adamantly said you could not hunt, when did that happen in relationship to the August 23rd date? A Like 3 or 4 years before that. Q So some time ago, she had said, No way? A To that day when I asked her. Q Right. And she actually qualified it with the fact that, I have horses in there and I have children around there, I don't want you to hunt. Would that be an accurate -- A That's what she said. [ 13 ] This conversation occurred at a New Years Eve party that ended on January 1, 2019, almost 22 months prior to the offence date.

The second conversation in the yard occurred in the fall of 2019, almost a full year prior to the offence date. A considerable amount of time had passed between those conversations and when Mr. Kalin received notice of his hunting tag. So, when Mr.

Kalin received notice that he had been selected to hunt a moose during the hunting season of fall 2020, and he knew obtaining consent from the Susan’s renters to hunt on the rental property could be an uphill battle given Candace’s previous blanket refusal. [ 14 ] On top of Candace’s verbal notice of her refusal to grant consent, Stephen Terrio, Candace’s husband and co-lessee of the property also attempted to communicate more broadly that hunting was not available on their rental property, by posting signs (February 24, 2023 Transcript, p 71): Q Do you have any signage on your land indicating that – A Yeah, we had put signs up that year.

Q Okay. And what did – A Yeah, they were up there. Q -- the signs say? A 'No Hunting'. [ 15 ] However, undaunted, Mr. Kalin told his friend and defence witness, Mr. Stephen Price, about his moose hunting tag and asked for help as Mr. Price is also an experienced moose hunter. [ 16 ] Although Mr. Price testified for the defence, he is familiar and friendly with all parties. His daughter is close friends with Candace, and he personally was good friends with Dave, Candace’s father. Mr.

Price also knew that Dave lived and worked on the on the on the rental property and believed Dave was a legal lessee and tenant of the rental property. [ 17 ] In telling Mr. Price about receiving his hunting tag, Mr. Kalin mentioned his conversation with Susan and acknowledged that he knew that the ultimate permission had to come from the renters. With that, Mr. Price testified that he was certain that Dave would give that permission (May 25, 2023 Transcript, p 37): Q Did he tell you what Susan told him?

A She told him, she said, yes, he could hunt -- he could fish and hunt but he had to talk to the renters first. Q Were you surprised that the renters would give him permission? A No, I expected the renters to give permission, that's why I made him -- that's why I told him to go see Dave. Q Were you aware of Candace -- so the -- there's people who live there, there's -- there's Dave, and you -- your evidence is that you understood Dave as -- he was one of the primary renters; is that correct? A Yes.

[ 18 ] Dave, (Mr. David Salter), is a retired rodeo cowboy who lives on the rental property with his daughter, Candace Terrio, son- in-law, Stephen Terrio, as well as the Terrio’s teenage daughter. He is not on the lease and doesn’t pay rent, but because of his equestrian experience he is a great help to the care of the Terrio’s barrel-racing horses and maintaining the grounds. Dave spends much of his days outdoors tending to the animals and repairing fences and seems to be well-known in the community as a result. [ 19 ] Mr.

Price was quite friendly with Dave, as the two have lived in the same community for almost a decade and often help each other out. It was Mr. Price who suggested that Mr. Kalin speak directly with Dave about hunting on the property. As Mr. Kalin described (May 25, 2023 Transcript, p 6): I went up to my neighbours after I talked to Susan and told them that she actually gave me permission and they were flabbergasted.

And the one gentleman that lives on the property was there and he said, I'll give you permission, because I'm tired of fixing the fences all the time from them running through them instead of over them. And I said, Okay, I will be there on November 1st to ask you for permission, and he said, Feel free to show up…. [ 20 ] On the first day hunting was permissible with the moose tag, November 1, 2020, Mr. Kalin collected Mr. Price, and the two men went off in search ideal moose.

It was in the early morning hours when they narrowed in on the moose they wished to target, located as expected, on the property rented by the Terrios. Mr. Kalin reiterated that he needed to seek permission from the renters, to which Mr. Price responded that he was sure Dave would already be up and available (May 25, 2023 Transcript, p 29): A we talked about it, we turned around, and Wayne says, Too early in the morning, no one will be up to ask permission. I said, Oh, Dave will be up, because I know Dave personally.

Q Okay A So we turned around, went back, drove up to the gate, Wayne walked and knocked on the door and talked to Dave. I was not -- I didn't hear the conversation. Wayne came out and said, Dave said, Yeah, go ahead. [ 21 ] Dave described that conversation somewhat differently, testifying that when Mr. Kalin approached he reiterated that Susan had already given permission: “He walked up and told me that Susan Harder had gave him permission to hunt a moose” (February 24, 2023 Transcript, p 93).

Dave also denied that he gave permission, testifying “no, I can’t … I’m not renting the place” (February 24, 2023 Transcript, p 100). [ 22 ] Dave was seemingly aware that there were concerns about people hunting on the property, as he had personally hung “No Hunting” signs, just a few days earlier, just before the start of hunting season at the request of Susan, the property owner (February 24, 2023 Transcript, p 94): Q and he (Mr. Kalin) said something to you. What did he say?

A He said that he had permission from Susan Harder to hunt a moose in the one chunk of the place, which -- we only rent our -- or Steve and Candace only rent 40 acres of it, so it was on the south side of our house, to the south. […] Q Okay. Fair enough. So, after he tells you this, did you make any response to him? A I just said, Oh. Q Were you surprised to hear that from Wayne? A Well, yeah, because Susan had had me post -- put up 'No Hunting' post signs around the area. [ 23 ] Dave was surprised when Mr.

Kalin said Susan gave permission, but admitted he was pleased that there would be one less moose to knock down the pasture fence. However, Dave did also testify that he was in favour of the moose hunt (February 24, 2023 Transcript, p 93): Then he went back to his truck and -- oh, I said something else too. I said -- when he said that he'd had permission to shoot the moose, I said, Well, that's good. Then I probably won't have to fix my fences where the moose been knocking them down. [ 24 ] On the other hand, Candace and Steve were not pleased that Mr. Kalin had hunted on their rental property.

Steve came out to the area where Mr. Kalin, Mr. Price and Dave were located and was irate as he questioned all the individuals. In cross-examination, Steve stated that Mr. Kalin should have asked him for permission, not Dave: “that goes through me because I'm the one paying the bills here and I'm the one who's renting the place” (February 24, 2023 Transcript, p 80). [ 25 ] Mr. Price describes the change to Dave’s demeanor after Steve’s arrival (May 25, 2023 Transcript, p 33): Q Okay.

Once Steve had arrived and he's being belligerent and he's said what you've indicated he said and Dave's reacted in -- in the fashion that you said, did Dave say anything after that? A No. His head went down, he said nothing, he was embarrassed. [ 26 ] After that, Mr. Kalin and Mr. Price left the property with the moose carcass. A short time later, the same moose carcass was seized by Fish and Wildlife peace officers and Mr. Kalin was served with a summons charging him with the two offences under the Wildlife Act , RSA 2000, c W-10 (“ Wildlife Act ”). The Issues:

1. Did Dave Sather have standing as an “occupant” to give consent for Mr. Kalin to hunt on the land? 2. Did Dave Sather give consent to Mr. Kalin hunt on the property? 3. Was Mr. Kalin in lawful possession of the resulting Moose carcass? The Legislative Framework [27] The Wildlife Act sections 38 and 55 state: Hunting on occupied land 38(1) In this section, “occupied land” means (

a) privately owned land under cultivation or enclosed by a fence of any kind and not exceeding one

section in area on which the owneror occupant actually resides, and (

b) any other privately owned land that is within one mile of the

section referred to in clause (

a) and that is owned or leased by thesame owner or occupant.

(2) No person shall hunt any wildlife or discharge any firearm on or over occupied land or enter on occupied land for the purpose ofdoing so, without the consent of the owner or occupant of it. 1984 cW 9.1 s40 Possession of wildlife and controlled animals 55(1) Subject to this Act, a person shall not be in possession of a wildlife or controlled animal.

(2) Subject to this Act, a person may have a wildlife or controlled animal in the person’s possession (

a) if and to the extent that the person is authorized by a permit to do so, (

b) on a fur farm if that possession is reasonably incidental to the operation of that farm, or off the farm if that possession is reasonablynecessary for its operation, (

c) in the case of dead wildlife, if (

i) the Minister has transferred it to the person under

section 9, or (ii) the wildlife has been hunted in accordance with this Act and the requirements of section 8(1)(b), (

c) and (

d) have been or are beingmet in relation to it. (iii) repealed 2011 c12 s32(13).

(3) Except as prescribed, a person shall not be in possession of an animal that is not a subject animal and that was imported into Albertaunless it was lawfully acquired in and lawfully exported from a jurisdiction outside Alberta. RSA 2000 cW 10 s55;2003 c26 s17;2011 c12 s32(13) [28] In describing the principles of the Wildlife Act, the Honourable Justice J.N. LeGrandeur wrote in R. v Morton, 2009 ABPC343: [28] The Wildlife Act is not criminal legislation. Rather it is regulatory in nature and is to be interpreted purposefully and liberallyin order to fulfill the objects of the legislation.

The focus of the Wildlife Act concerns the protection of the public and societal interest inthe preservation and conservation of our wildlife through the regulation of wildlife acquisition and possession. It is not criminallegislation that focuses on punishment of the individual’s moral faults. (See: Committee for Equal Treatment of Asbestos Minority Shareholders v. Ontario Securities Commission (2001), 2001 SCC 37 , 199 D.L.R. (4th) 577 at 590).

It is, nonetheless, penal innature, contemplating imprisonment in default of payment of any fine imposed upon conviction and loss of or restriction of huntingprivileges depending upon the nature of the conviction. Analysis: Did Dave Sather have standing as an “occupant” to give consent for Mr. Kalin to hunton the property? [29] Section 38(2) of the Wildlife Act creates an offence to hunt on occupied land without the consent of the owner or occupant ofit.

The Act, however, does not define “occupant.” [30] The plain language definition of occupant from the online Cambridge English Dictionary is “a person who lives or works in aparticular house, room, building, etc.”

[31] The Dictionary of Canadian Law. 5th Ed (Ontario: Carswell, 2020) defines “occupant” as “the owner, lessee, or other personhaving possession of or control over lands.” [32] Stinson v. The Township of Middelton Wright v. The Township of Middelton, 1949 88 (ON CA) states “The word “occupant”in a wide sense means ‘one who occupies, resides in, or is at the time in a place.” [33] The prosecution witness Stephen Terrio certainly took the view that only he and his wife, Candace Terrio, could giveconsent to hunt on the rental property as they are the leaseholders and pay rent.

However, just because the Terrio’s take that view, itdoes not preclude Dave Sather’s status as occupant given that he resides and works at the property. [34] In my view, the best definition of occupant can be implied from s 38(1)(

a) which defines “occupied land” as “privately ownedland under cultivation or enclosed by a fence of any kind and not exceeding one

section in area on which the owner or occupant actuallyresides.” In referring to a location where the occupant “actually resides” the act seems not to consider legal status as renter orleaseholder to be an occupant, only the residency. [35] Given that Dave Sather is a resident of the property, he is legally an occupant and he was equally entitled to give consent toenter the property for purpose of hunting as his daughter and son-in-law. Did Dave Sather give consent to Mr. Kalin hunt on the property? [36] Mr.

Kalin testified that came away from the conversation with Susan with the belief her position was that he had herpermission but had to confirm that with the renters. That was the information he shared with both his friend Mr. Price as well as DaveSather. Although Susan denied that she said that she would give you permission if she could, there was no doubt that she gave the cleardirection that permission needed to be sought from the renters. Also clear is that Susan never outright refused to allow Mr.

Price to hunton the property, instead delegating that authority completely to her renters. [37] On the encouragement of Mr. Price, Mr. Kalin spoke with Dave Sather prior to the November 1, 2020 offence date about hishope to obtain consent to hunt on the property. Mr. Kalin told Dave that he had Susan’s agreement but needed the consent of the renters,and Dave expressed that he was pleased to do away with the destructive moose.

Given that Dave was familiar with his daughter andson-in-law’s firm stance against hunting on the property, even acknowledging the “No Hunting” signs he personally hung on theperimeter, he had plenty of time to confirm it for himself with Susan. Dave also could have checked with his daughter and son-in-lawwhen Mr. Kalin and Mr. Price arrived at the property. It was after the angry confrontation from his son-in-law Steve that Dave deniedhaving anything to do with giving permission to Mr. Kalin.

Dave could have said withheld consent at any time, or at least sought out hisdaughter or son-in-law for confirmation, but instead expressed that he would be pleased by a successful moose hunt as it would reducehis workload. [38] Dave Sather permitted Mr. Kalin to hunt the moose on the property. Despite any hard feelings from his daughter and son-in-law, he was lawfully entitled to grant consent under the Wildlife Act. I find that on November 1, 2020, Mr. Kalin did hunt the moosewith the consent of an occupant of the property. Was Mr. Kalin in lawful possession of the resulting moose carcass? [39] Given Mr.

Kalin lawfully held a moose hunting tag, and I have found that he lawfully hunted on the property with consent ofthe occupant, I find he was lawfully in possession of the moose carcass. Additional issues not addressed: Investigative Concerns [40] Counsel for Mr. Kalin raised several other procedural concerns with how this case was investigated and ultimately brought totrial. Among the concerns he listed, it came out that three of the witness statements relied on by the prosecution were ultimatelycompleted by Candace Terrio.

She drafted the witness statement from her father and transcribed the witness statement prepared by herhusband Stephen. The prosecution did not subpoena the investigative officer so the officer’s reasoning for that is not known. However,while I do not need to consider the impact of these investigative shortcomings, I do wish to acknowledge that this practice is problematicand should be discouraged. Applying R v Kienapple to Count Two: Unlawful Possession [41] Counsel for Mr.

Kalin raised the issue of duplicity on argument, though I was the one to suggest his argument fell under theprinciples articulated in Kienapple v R, [1975] 1 SCR729, (SCC).

Counsel argued that regardless of the outcome ofcount one, I should acquit the defendant of count two: “The evidence clearly establishes that, and it's not been controverted in any way, that my client had a lawful tag or permission to hunt.Now, if that count means other than that, which is unlawful possession of meat because he hunted on property without permission, thenit's redundant, in my respectful submission.” [42] I agree with the reasoning of defence counsel in this case.

Decision 1. Did Dave Sather have standing as an “occupant” to give consent to hunt on the land? Yes. 2. Did Dave Sather give consent to Mr. Kalin hunt on the property? Yes. 3. Was Mr. Kalin in lawful possession of the resulting Moose carcass? Yes. [ 43 ] After considering the facts in this case, I find Mr. Kalin not guilty on both counts one and two. Heard on the 24 th day of February, 2023 and the 25 th day of May, 2023. Dated at the City of Calgary, Alberta this 23 rd day of June, 2023. L. D. Henderson A Justice of the Alberta Court of Justice Appearances: G. Glasgow for the Crown N. Kelly for the Defendant