Her Majesty the Queen - v. -, 2013 SKPC 104

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 104 Date: July 25, 2013 Ticket No.: 7418889 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Gordon J. Silzer Appearing: Mr. Brian Hendrickson, Q.C. For the Crown Ms. DeMars-Karentz For the Accused DECISION M.

GORDON , J [ 1 ] Gordon Silzer is charged with an offence pursuant to s. 48(5.1) of The Wildlife Regulations Act which reads as follows: Unless authorized by the director, no person shall operate or be a passenger in any vehicle for hunting or for any purpose related to hunting big game in Regina-Moose Jaw and Saskatoon Wildlife Management Zones, except along a road or road allowance with a trail. ISSUES

[ 2 ] Has the Crown proved beyond a reasonable doubt the essential elements of the charge? If so, has Mr. Silzer brought himself within the exception and has Mr. Silzer exhibited due diligence in the circumstances? [ 3 ] Crown and defence in addition to oral argument filed written submissions. I thank them for their assistance. EVIDENCE [ 4 ] Two experienced conservation officers testified on behalf of the Crown. Cst. Riendeau and Cst. Churney were on routine patrol on October 2, 2012, in a marked patrol unit in the Moose Jaw-Regina Wildlife Management Zone.

They were patrolling off Highway No. 2 in the Chamberlain-Findlater area. They encountered a black GMC pickup truck in a stubble field near a small bluff. The truck was unoccupied. Cst. Riendeau checked the licence plate number and found the accused was the owner. Exhibit P-4 is a colour photograph showing the vicinity that the vehicle was parked in the stubble grain field. Cst. Riendeau noted the trail had ended one half mile north of where the accused’s truck was parked. He stated the accused’s truck was on a road allowance but not on a road allowance with a trail.

The officer testified the accused’s vehicle was just outside of the photo #4. The officers parked behind this vehicle and Cst. Churney took the GPS coordinates. At 11:05 a.m., the officers heard a shot which sounded as if it came from the west which would be to the left in photo #4. After about 25 minutes, the officers proceeded west in their vehicle through the field and came upon two males coming around the south end of a willow slough. Both subjects were carrying firearms.

After some initial discussion and request for hunting licence, the accused admitted he had killed a moose and that he had left the tags in his vehicle. The officer reminded him of the requirement under the legislation to tag immediately. The group proceeded to the kill site. This was approximately a half mile from the accused’s black truck and patrol unit in P-4 and in a dry slough to the west. The accused directed the officers to the moose. The moose had three bullet wounds. Cst. Churney observed the accused was concerned and cooperative. Cst.

Churney advised the accused he was under investigation as the accused’s truck was not parked on a grid road but rather in a stubble field with implement tracks. Therefore the officer said he was hunting in violation of the Act . Exhibit P-8 being the Google earth map shows the location of the accused’s vehicle being the black GMC truck owned by Gordon Silzer and the location of the end of a trail closest to the Silzer vehicle. [ 5 ] Cst.

Riendeau described the route to get to the accused’s truck by referring to a larger map of the R.M. of Dufferin No. 190 as follows: three miles east on the gravel road, range road 210, north two miles on 261 on a maintained dirt road and back west one mile on R.M. maintained road and a half mile south on a trail. The black vehicle of the accused was half a mile south in a grain field facing west and northwest. The accused’s truck was on a road allowance but the trail had ended one half mile north. [ 6 ] Cst. Churney described photos P-3 and P-4 as showing a cultivated stubble field. He noted the implement tracks.

The accused’s truck is just outside P-4 in the vicinity. He described the trail (which he said ended) as showing two distinct ruts, dirt and grass growing in the centre. Cst. Churney said that they had encountered another hunting party in the immediate area which was hunting the same moose. The officer decided to allow the other party to claim the moose. The other hunters had apparently followed a trail of blood to this moose. [ 7 ] Gordon Silzer testified he and his long time hunting friend were out early on the morning of October 2, 2012, hunting moose in this wildlife management area.

He sighted a bull moose in a field approximately 17 kilometres southwest of Chamberlain. He got out of his vehicle and walked to the nearest fence (map P-6 yellow peg location) and fired a shot which hit the moose in the front shoulder chest cavity area. He assumed the moose was dead but admitted it was possible he made a mistake. He took the most direct route (Range Road 261) which was gravel, then a dirt road and then a trail used by implements. He kept an eye on the moose and observed the animal to get up very slowly.

He realized he had “messed up” so parked his truck (P-6 red tag), grabbed his muzzle loader and headed west about 500 yards. He took a shot and killed the bull moose. On his way back to his truck, he encountered the two conservation officers in their truck and admitted to killing the moose. The accused, in all the excitement, had forgotten his tags in his wallet in his truck. He explained this and his purpose to the conservation officers. He claims he was parked “dead centre on this trail 261”. When shown photo P-3, he could not identify if that was the location of his parked vehicle.

CROWN ’S POSITION [ 8 ] The Crown submits it has proved beyond a reasonable doubt the necessary elements of the offence. The identity of the accused as well as the date and time and wildlife management area are not in dispute. The location of the vehicle of the accused is just

outside the area in P-3 and P-4 as identified by the conservation officers shows a farmer’s field which is a road allowance but not a roadallowance with a trail. The Crown says the defence has not established that the accused comes within the exception provided in s.48(5.1). The evidence of the conservation officers and photos P-3 and P-4 clearly show the accused’s vehicle was in a farmer’s field, nota road allowance with a trail.

DEFENCE’S POSITION [9] The defence in her very comprehensive brief argues that pursuant to s. 48(6) of the Regulations, the accused was allowed tooperate a motor vehicle within the prohibited area for the purpose of retrieving killed game. In other words, the defence argues that theaccused’s actions come within the exception in 48(5.1) as he was operating his vehicle on a road allowance with a trail for the purpose ofretrieving a legally killed animal by using the most direct route. The accused claims he was going to retrieve the moose. Mr.

Silzer’sevidence is that he was aware of the provisions of the Act and Regulations and also relied on the Hunter’s and Trapper’s Guide at page 7(Exhibit D-2) which states: In Regina/Moose Jaw and Saskatoon Management Zones, no person hunting big game is allowed to drive off roads or road allowanceswith trails except to retrieve a legally killed big game animal using the most direct route. [10] Mr. Silzer says after the first shot, he was convinced he had killed the moose and encased his firearm, got into his vehicle andproceeded north on Range Road 261 for the sole purpose of tagging and field dressing the moose.

In other words, retrieving the moose. Mr. Silzer testified that the range road appeared to be used frequently by vehicles. While he was driving north on the range road, Mr.Silzer was able to keep the moose in his view. According to his evidence, he drove for about 10 minutes when he noticed the moosemove. Mr. Silzer was approximately 50 yards from the animal when this occurred. Mr. Silzer and his companion stopped the vehicleand got out, reloaded his muzzle loader and pursued the moose on foot as it was slowly moving towards the northwest of their locationtowards the bush area. THE LAW [11] In R. v.

Shawaga, 2008 SKPC 35, Judge Morgan states that the purpose of the Saskatchewan Wildlife Act is as follows atparagraph 5: There can be no doubt that the objective of the Act is to protect, manage and control wildlife in this province. This encompasses placingrestrictions on who can hunt animals and when those animals can be hunted. This control of hunting activity is designed to ensure theconservation of the resource, and to ensure the propagation of various species of wildlife. [12] Judge Halderman in R. v.

Hayworth, 2003 SKPC 52, stated at paragraph 12 that regulatory strict liability offences should be“... interpreted purposely and literally, in order to attain the objective of the legislation”. He made reference to R. v. Agpro Grain Inc.(1996), (SK KB), 142 Sask. R. 37, where Judge Baynton noted the following:

An act is considered a regulatory offence if it is prohibited not because it is inherently wrongful but because if unregulated it could havepotentially adverse effects on society. The objective of regulatory legislation shifts from the protection of individual interests to theprotection of the public and societal interests. R. v. Wholesale Travel Group Inc., (SCC), [1991] 3 S.C.R. 154 at 218-19. [13] The Saskatchewan Wildlife Act and Regulations define many of the terms and activities that are the subject matter of thistrial. In particular, I note the following provisions: In

section 2 of the Act hunting includes taking, wounding, killing, chasing, pursuing, worrying, capturing, following after or following onthe trail of, searching for, shooting at, trapping, setting snares for, stalking or lying in wait for any wildlife, or attempting to do any ofthose things, whether or not the wildlife is then or subsequently captured, wounded or killed.

The term vehicle is defined as including a motorized conveyance, trailer, tractor, snowmobile, aircraft or any other conveyance, otherthan a boat, that is drawn, propelled or driven by any mechanical means and includes any accessory attached to the vehicle. The term road allowance is defined in s. 2(ii.2) of the Regulations as follows means a road allowance as defined in the first, second andthird Dominion Land Survey System. The term trail is defined in s. 2(11) of the Regulations as follows means a route regularly travelled by vehicles.

ANALYSIS [14] I first of all need to consider the constituent elements of the offence that the Crown must prove beyond a reasonable doubt. The within offence bans a person from being in a vehicle for hunting or any purpose related to hunting big game in the Regina-MooseJaw and Saskatoon Wildlife Management Zone. There is an exception if the person is operating a vehicle along a road or road allowancewith a trail. Section 794(1) which applies to

summary conviction proceedings such as this states:

(1) No exception, exemption, proviso, excuse or qualification prescribed by law is required to be set out or negatived, as the case maybe, in an information.

(2) The burden of proving that an exception, exemption, proviso, excuse or qualification prescribed by law operates in favour of thedefendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the exception, exemption,proviso, excuse or qualification does not operate in favour of the defendant, whether or not it is set out in the information. [15]

Section 4 of The

Summary Offences Procedures Act provides that the

summary provisions of the Criminal Code areapplicable to the case at hand. In R. v. Lee Poultry Limited, (ON CA), 43 C.R. (3d) 289, the Ontario Court of Appealdealt with the same issue under a different regulatory provincial statute on page 4, Brooke J.A. speaking for the Court stated: Two consequences follow from the view we have taken as to the evolution and nature of this exception.

First, as it comes into operationupon an enactment being construed in a particular way, there is no need for the prosecution to prove a prima facie case of lack of excuse,qualification or the like; and secondly, what shifts is the onus: it is for the defendant to prove that he was entitled to do the prohibitedact. What rests on him is the legal or, as it is sometimes called the persuasive burden of proof. It is not the evidential burden. [16] I do not accept the defence suggestion in paragraph 41 of her brief that the Crown “has not proved beyond a reasonable doubtthat Mr.

Silzer’s vehicle was off a road allowance with a trail for the purposes of hunting or any other purpose related to hunting withinthe meaning of the Act and the Regulations”. There is no need for the prosecution to prove a prima facie case regarding the exception. The accused has the persuasive burden of proof to establish on the balance of probabilities that the vehicle was on a road or a roadallowance with a trail. [17] I am satisfied that the Crown has proved the essential elements of the offence. The only issue is whether the defence hasestablished that Mr.

Silzer was on a road or road allowance with a trail as defined by the Regulations. I now need to consider what is aroad or road allowance with a trail. [18] There is no definition of the term road allowance with a trail. I can only assume that the drafters of the legislation saw noneed as the separate terms are defined and therefore one just needs to put or read together the

definitions. I agree with defence counselthat the following principles of statutory

interpretation are applicable. She referred to them at paragraph 28 of her brief as follows: The Supreme Court of Canada cited E.A. Driedgers text “Construction of Statutes” in Chieu v. Canada (Minister of Citizenship andImmigration) 2002 SCC 3 , 2002 S.C.C. 3: Today there is only one principle or approach namely the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.

[ 19 ] The Crown does not disagree with this approach and submits to a “clear

interpretation” of these terms is required. I agree with the Crown that the words road allowance and trail must be coupled and read together. The

section refers to “road allowance with a trail”. From the evidence, I am satisfied that the conservation officers came upon the accused’s vehicle unoccupied in a stubble field. Photos P-3 and P-4 clearly show the area. Mr. Silzer did not dispute the accuracy of the photos. Mr. Silzer’s only response was he could not tell the direction the photo had been taken. Quite frankly I found his response evasive. Mr. Silzer made it abundantly clear in his evidence that he was very familiar with this area and is a very experienced hunter. I accept Cst.

Churney’s evidence that the accused’s vehicle was at the corner of the four quarter sections (red tag on Exhibit P-6). There was no road allowance leading to it. Range Road 261 becomes a two rutted trail. Both officers testified that the trail ended about a half mile south. Again photos 3 and 4 show this. [ 20 ] I find as a fact there was no trail there. There was only some flattened stubble. It is impossible looking at the photographs to reach the conclusion there was a trail. I cannot say and I am not satisfied this is a route regularly travelled by vehicles.

Therefore it is not a road allowance with a trail as defined in The Wildlife Regulations Act . The black truck belonging to the accused was located just outside of the corner of photo P-4 according to Officer Riendeau. If all that was required to be categorized as a trail was some flattened stubble, there would be trails going every which way and it would in fact defeat the intent of the legislation. [ 21 ] The second argument advanced by the defence is framed as one of mistake of fact. At paragraph 46 of her brief, counsel for Mr. Silzer quotes R. v. Perry , 2003 N.J.

No. 24 , where Judge Hislop described the nature of a mistake of fact defence in the following manner: I think the state of law today in Canada from the foregoing authorities is that in order to establish a defence based on mistake of fact, the mistaken belief must be both honest and reasonable. (See Regulatory Offences in Canada by John Swaigen Carswell 1992 at pages 80 and 81.) [ 22 ] In strict liability offences however a defendant must show that the mistake of fact is not only honest but is also based on reasonable grounds.

To rely on a defence of reasonable mistake of fact, the accused cannot simply assert that he or she was unaware of the facts. If the violation is a foreseeable result of his or her activities, the accused must show that he/she actually put his/her mind to the problem, attempted to ascertain the true nature of the situation and made all reasonable inquiries to that end. [ 23 ] In this respect, there is an active as well as a passive aspect to the defence. Mistake of fact involves establishing due diligence.

To show that a mistake of fact was reasonable, the accused must establish that he took all reasonable steps and made all reasonable inquiries to find out the correct information. I have already concluded above that the area that Mr. Silzer was in is not a trail as defined in the Act . Therefore Mr. Silzer has not convinced me he has brought himself within the exception as provided in subsection 6. [ 24 ] Mr. Silzer realized as he said in his own words that he had “messed up”. He was continuing the hunt. He thought he could. This is a mistake of law. Mr. Silzer is an experienced hunter.

Hunting is a regulated activity for safety and conservation reasons. Mr. Silzer has tried to twist this provision to his advantage. A hunter with his experience must be taken to know the rules and regulations and that his actions were continuing the hunt by driving his vehicle in a farmer’s stubble field. He knew by this time that the animal had not died with the initial shot. Therefore I find Gordon Silzer guilty of this offence as charged. M. Gordon, J