Her Majesty the Queen - v. -, 2011 SKPC 42

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 042 Date: March 3, 2011 Information: 24055402 Location: Wadena _____________________________________________________________________________ Between: Her Majesty the Queen - and - Sykes R. Mitchell Appearing: Inez J. Cardinal, Q.C. For the Crown Richard W. Danyliuk, Q.C. For the Accused JUDGMENT J. PLEMEL , J [ 1 ] The trial of this matter was held on December 16, 2010 and then adjourned for decision. Counsel have filed written briefs and, at the outset, I wish to thank them for their helpful oral and written submissions. [ 2 ] Sykes R.

Mitchell is charged that he did: Count 1. Between the dates of May 13, 2009 and May 20, 2009 near Wadena in the Province of Saskatchewan, contravene the terms, conditions or restrictions imposed on his outfitter’s licence contrary to section 19(1)(

b) of The Outfitter and Guide Regulations, 2004 , c.

N-3.1 Reg 3. Count 2. Between the dates of May 13, 2009 and May 20, 2009 near Wadena in the Province of Saskatchewan, while in possession of game, did allow its edible flesh to be wasted, spoiled or abandoned, contrary to section 22(1) of The Wildlife Regulations, 1981 , c. W- 13.1 Reg 1. [ 3 ] Section 19(1)(

b) of The Outfitter and Guide Regulations states: 19

(1) No outfitter shall: (

b) contravene the terms, conditions or restrictions imposed on his or her outfitter’s licence; [ 4 ] The relevant portion of Mr. Mitchell’s outfitter’s licence for the period in question is paragraph 6.5 which states in part: The Licensee and all guides, employees, and agents shall comply with applicable legislation and regulations including, without limiting the generality of the following, The Outfitter and Guide Regulations, 2004 ...and The Wildlife Act, 1998 . [ 5 ] Section 22(1) of The Wildlife Regulations states: 22

(1) A person who has killed or is in possession of any game other than a bear shall not allow its edible flesh to be wasted, destroyed, spoiled or abandoned. [ 6 ] Among other things, Mr. Mitchell’s licence, issued to him by the Saskatchewan Ministry of the Environment, authorized him to provide an outfitting service to hunt certain game birds. Mr. Mitchell runs a hunting lodge, called Living Sky Outfitters, located northeast of Wadena. He has owned and operated this camp for eight years. [ 7 ] Part of Mr. Mitchell’s operation includes the spring bird hunt.

His clients who are mainly from the USA, attend to hunt geese during the spring season for approximately five weeks. He hires numerous people to assist him, among them cooks, guides and bird cleaners. [ 8 ] Mr. Mitchell hires high school students to clean birds the hunters have shot. During the period of time in question, they were paid an hourly rate. In previous years they had been paid a certain amount for each bird they cleaned. Counsel for Mr. Mitchell makes a point of referring to these students as contractors, not employees. [ 9 ] The cleaners do what is call “breasting” the birds.

In doing so, they remove the breasts of the geese and discard the rest of the carcass. During the period of time in question they did this by using an apparatus referred to by various names at trial including “the bird hitch”. This attaches to the hitch of a truck and speeds up the breasting process. Using this apparatus the cleaners could clean several birds a minute. They would put the breasts of two birds into a bag before putting them in a freezer. They would put a wing from each bird in the bag for inspection purposes by authorities such as those they might deal with when returning to the USA.

They would only mark the species of the bird on the bags. The cleaners kept no records of the number of birds they handled. [ 10 ] Once cleaned, the cleaners were to dispose of the cleaned birds or those too damaged to be cleaned on the edge of a field of a local farmer who had given his consent to Mr. Mitchell to dump the bird remains at that location. [ 11 ] After receiving an anonymous tip, two conservation officers employed by the Saskatchewan Ministry of the Environment attended this location and found what they considered to be an excessive number of whole birds, disposed of and wasted.

[ 12 ] At trial the Crown called Officer Dale Achtymichuk who was one of the two conservation officers. They also called Mike Smith and Brad Radawetz, two bird cleaners. The Defence called the accused, Sykes Mitchell. [ 13 ] Among the piles of breasted bird waste, I am satisfied that a considerable number of whole birds without breasts removed were found by the conservation officers. Many whole birds were too damaged to clean and eat. Such damage might occur as a result of the birds breaking open when they hit the ground after they are shot; others might be considered inedible because they are too shot up.

I am not concerning myself with these birds in my decision, nor am I asked to. However, other birds in these piles were thrown out unnecessarily thereby wasting, abandoning, spoiling and destroying perfectly good edible meat. [ 14 ] Officer Achtymichuk testified about what he saw. There were five piles of bird carcasses which, given their states of decomposition or lack thereof, he felt had been dumped there over a period of time right up to possibly the day they attended. The officers took photographs of the piles of birds on May 20 th .

Two photographs taken that day were marked as Exhibit P-1 in these proceedings. They returned the following day and took more photographs. Two taken on May 21 st were marked as Exhibit P-2. [ 15 ] Two of the piles had geese which appeared to be most recently discarded. The officers focused their investigation on the birds in those two piles but not the other three. It would have been difficult to sort through the other three given their states of decomposition. The officers went through the two piles thoroughly. These were marked in photographs as piles one and two. Pile one consisted of 70 snow geese.

Ten of these were whole, meaning they had not been breasted. Of these ten, Officer Achtymichuk testified some were damaged and could be categorized as inedible due to being badly shot up, or damaged from hitting the ground when shot. He believes six or eight were not damaged. Giving Mr. Mitchell the benefit of the doubt, I find that six were not damaged. [ 16 ] Pile two had a total of 242 geese. 220 were snow geese and 22 were referred to as Ross’ geese. The evidence is that Ross’ geese are similar in appearance to snow geese and may be mistakenly shot by hunters who believe them to be snow geese.

I heard evidence that there was no season on Ross’ geese at this time. Mr. Mitchell is not charged with anything relating to geese being hunted out of season and I draw no adverse inference against him from the fact that Ross’ geese remains were found among the snow geese. I do, however, include them in the numbers of geese found. Of the 242 geese found, 109 of them were whole, un-breasted, undamaged snow geese and 20 were whole, un-breasted, undamaged Ross’ geese, for a total of 129 perfectly good, whole wasted geese out of 242 in pile two.

Of the remainder, 67 were the remains of breasted snow geese, 2 were breasted Ross’ geese and 44 were whole but damaged snow geese. Of these 44 damaged geese, Officer Achtymichuk testified he felt he was generous to the accused in labelling them as being damaged to the point of being inedible, meaning that in his opinion, where someone else may have looked at a bird and said it was edible, if it was questionable he called it inedible, thereby reducing the total number of what might be considered wasted edible birds.

I accept his evidence relating to the number of geese in piles one and two, including his count of those which were properly processed, those which were properly discarded due to damage and those which were edible whole wasted birds. [ 17 ] Using these numbers, I am satisfied that in pile two 129 out of the pile of 242 were improperly wasted contrary to s. 22(1) of The Wildlife Regulations . Of the 242 birds, only 69 were processed. In pile one, six out of a total of 70 geese were improperly wasted. The total number of edible wasted geese we are speaking of in this case is therefore 135.

This number differs slightly from that referred to in paragraph 12 of the Crown prosecutor’s written brief. She counted 127 to 129 wasted birds. I believe she did not correctly add the numbers as testified to by Officer Achtymichuk. [ 18 ] Mike Smith was one of the bird cleaners in the fall of 2008 and in May 2009. He was 19 years old at the time he testified and this would mean he was 17 or 18 at the time of the alleged offences. He was a high school student at that time. He testified that in the spring of 2009 he cleaned birds for Mr. Mitchell from about the beginning of May until about May 25 th .

He testified that he and three other high school friends were bird cleaners that spring. In addition to Brad Radawetz he referred to students by the first names of Dillon and Colter. Mr. Smith stated that in 2009 others might come out to work for a couple of hours as well to see what it was all about. He testified that he, Dillon and Colter dumped pile one, one or two evenings before the conservation officers came and spoke to him. Officer Achtymichuk testified he first saw the piles on May 20 th and spoke with Smith on May 21 st and that piles one and two were the freshest piles.

I conclude that pile one was dumped there on about May 19 th . [ 19 ] Mike Smith testified that he and Brad Radawetz dumped most of the birds in pile two about a week earlier but that pile two consisted of their one large deposit of birds plus a smaller dump he made a day or two previously. He did not indicate whether or not

anyone helped him in cleaning and discarding the smaller number of birds in pile two on the prior occasion. Mr. Radawetz testified that he believed he cleaned and dumped birds in pile two on about Friday, May 15 th . However, the evidence is that hunters leave to return back to the USA on Fridays with their cleaned birds. Therefore, I believe he may be mistaken by a day or two.

While I am not certain of the day each pile was created, I am satisfied that piles one and two were dumped there between the dates of May 13, 2009 and May 20, 2009, as alleged in the information. [ 20 ] Regarding pile two Mike Smith testified that he and Brad Radawetz arrived out at the lodge shortly after school. They worked until after dark. They spoke with Mr. Mitchell on the way into the yard and proceeded to the bird cleaning location. His recollection is that this was the only contact they had with him that day. He did not come out to see them while they cleaned birds.

His evidence on this point differs from that of Mr. Radawetz and Mr. Mitchell which I will refer to later. Mike Smith stated that when they arrived many geese were on hangers and others were in a large pile on the ground. He estimated that there were over 200 geese for them to clean that day. Mr. Smith testified that it was a very cold day. He testified that he had not been out there to clean for several days and from observing the birds was satisfied that many had been there for days.

This is inconsistent with evidence he gave at another point where he stated that he dumped a smaller number of birds on pile two a day or so earlier. I do not feel Mr. Smith was trying to mislead the Court, but only that he was unsure of when he had last been to the lodge prior to going out there with Brad Radawetz. When Mr. Smith and Mr. Radawetz arrived out at the lodge, some geese were partially frozen due to the cold outside temperature. Mr. Smith felt that some had fly eggs or maggots in them. It began to snow while they were cleaning and this made the job difficult.

He testified that their fingers would feel frozen after just doing two or three birds. He testified that they became lazy and they started throwing out edible birds. They threw them directly into the back of Mr. Radawetz’s truck and at the end of the evening drove these birds to the dump site. [ 21 ] Mike Smith testified that it was Mr. Mitchell who showed him how to clean and bag the birds and put them in the freezer. In the fall of 2008 and at the beginning of the 2009 season they breasted the birds using knives. However, by the time of the alleged offences they were using the bird hitch. Mr.

Smith testified that the bird cleaners did not keep any records, nor did they get any instructions from Mr. Mitchell or anyone else to keep records regarding the number of birds they cleaned or discarded. There is no evidence that Mr. Mitchell or anyone else ever looked into the back of the truck before they left the yard to examine the whole birds being thrown out. Mr. Smith stated that in 2008 he believed Mr. Mitchell had shown other students where to dump the birds and he, Mr.

Smith, learned from those students where to dump them. [ 22 ] Mike Smith testified that he was charged and dealt with his charges for wasting the birds which are the subject of this case but that the other bird cleaners were not. He felt this is because he had more experience than the other cleaners, due to his experience with Mr. Mitchell from the year before. He acknowledged that Mr. Mitchell had given him “pretty good instructions” on how to throw out bad birds and keep good ones. Mr. Mitchell had never told him to throw out good birds.

He testified as well that he knew he was not permitted to throw out good birds and that the accused, Mr. Mitchell would be angry if he knew they were throwing out good ones. Mr. Smith felt responsible for wasting the birds. He also testified that before getting the bird hitch, cleaners were paid according to the number of birds they cleaned. After Mr. Mitchell got the bird hitch, he and the other bird cleaners were paid by the hour. [ 23 ] Brad Radawetz also testified regarding the birds found on pile two.

He was 18 years old at the time he gave his evidence which would mean he was 16 or 17 at the time of the alleged offences. He himself is a hunter. He stated that he accompanied Mike Smith at Mr. Smith’s request to clean the birds. He was at school and his friend Mike Smith asked if he could help him clean birds and he agreed. They drove out to the lodge in Mr. Radawetz’s truck. A female friend also accompanied them and he believes they arrived at the lodge around 7:00 p.m. This was his first time to the lodge. He had never met Mr. Mitchell prior to this date. Mr.

Smith showed him around and told him how to clean the birds using the bird hitch. He stated that he felt the birds had been there for some time. It was cold and they were stiff. When breasting them he saw white flecks on some of them which he speculated may have been fly eggs but he was not sure. He felt that some of the meat on the birds was already spoiled and not edible. He stated he would not have eaten the meat. Mr. Smith explained the job to him and showed him what to do. Mr. Radawetz was not paid for his work. He feels they were there for about two or three hours cleaning the birds.

He knew that Mike Smith was throwing out too many birds and that what Mr. Smith was doing was wrong. He stated in cross-examination that it was possible that Mr. Mitchell came out and chatted with them while they cleaned birds. He recalls the cook coming out more than once and offering them food. The bird carcasses from processed and unprocessed birds were placed in the back of his truck and were discarded that night at the dump site by him and Mr. Smith. [ 24 ] Sykes Mitchell testified for the Defence. He has been in the outfitting business for eight years.

He lives in Oregon and operates Living Sky Outfitters, catering mainly to hunters from the USA. He hires staff to assist in the operations including a cook, cook’s assistant, scouts, and a house cleaner. Mr. Mitchell himself works as a guide as well as filling in elsewhere in the operations as is required. He hires high school students to clean geese and stated that when they cannot, they have friends and family who can. He stated that for the spring of 2009, he had three bird cleaners lined up so if one could not make it another would. He had never experienced any problems with bird cleaners in the past.

He described how hunters arrive on Sundays and hunt until Thursday. They depart on Friday. The spring season for snow geese was from April 1 st to May 31, 2009. During this time he estimated he had clients

numbering in the mid to high thirties. The lodge holds a maximum of twelve at one time. When guiding he makes sure that hunters donot exceed the number of birds they are permitted to shoot. In the spring of 2009 the daily limit was twenty snow geese and thepossession limit was sixty. [25] As to cleaning of birds, Mr. Mitchell testified that he trains the cleaners. He trains them not to throw away good breast meat.

If a bird is shot through the breast, his evidence is that it is not “harvestable” but that if only one half of the breast is shot, then the otherhalf will be saved and eaten in the lodge by the hunters. There is a synopsis for each year in the garage and they know they are not towaste anything. There was no evidence led as to what information was in the 2009 synopsis or that it contained any informationrespecting wastage of meat. His instructions to the cleaners was to put the breasts of two birds of the same species into a bag.

He statedthat “usually when they first start I have them put it in a tub...and when I come out there I would say well that one definitely is no goodbut this one, take that side off, it is still good. So there is a small amount of training that goes on with it but it is visually very obviouswhat we can do with it, if it is salvageable or not.” “You could train a monkey to do it.” He showed them how to use the bird hitch. Healso testified that hunters would often go out and watch the cleaners especially after he got the bird hitch, as they were interested in theapparatus.

He testified perhaps ten percent of birds shot may be too damaged to eat. The percentage varies however depending on anumber of factors. He estimated that his hunters would shoot several thousand geese in the spring season. He testified and I accept thathe at no time told cleaners to discard good birds. [26] Mr. Mitchell testified that in the spring of 2009 he was having difficulty with the bird cleaners. He stated that ideally, hewanted the birds cleaned every day. If he could not get in touch with Mike Smith, he would leave messages for him.

He testified that atone point it got bad enough that he told the hunters that they might have to clean the birds themselves and put the hunt on hold for thatpurpose. There is no evidence that this actually happened. He testified that the longest he feels the birds were left uncleaned was twodays. He denied that the birds stayed out so long that the meat actually spoiled. He testified that the location of the cleaning area isclose in proximity to the house; that not only he, but also the hunters would be upset if they saw birds rotting. [27] Regarding the birds found on pile two, he testified that Mr.

Radawetz and Mr. Smith were cleaning these birds on a cold day. He thinks he told them that the frozen ones might be difficult to clean and that they might even have to put some into the garage to warmthem up. He stated in his evidence that he knows the cleaners were struggling that night cleaning those birds and he recalled a femalebeing there who he referred to as Mr. Radawetz’s girlfriend. [28] Regarding his record keeping, Mr. Mitchell testified that he kept a daily log of what each hunter shot. He testified he isobligated to keep track of the birds.

The morning after the birds were cleaned he would go and rearrange the birds in the freezer makingsure that the hunters got the number of birds they were entitled to get according to the number they shot. He was asked by theprosecutor if he was not surprised the morning after Mr. Smith and Mr. Radawetz cleaned the geese to see that there were approximately109 birds unaccounted for and he said he did not see anything that alarmed him. Mr. Mitchell offered possible explanations as to why hedid not notice the missing birds. Sometimes hunters gave birds they shot to local residents.

Also, some weeks earlier a group of huntersfrom California had left approximately 140 cleaned geese at the lodge. He was expecting them to return for them but they did not. Theywere kept in one of the freezers. This, he feels, occurred around the same time that Mr. Smith and Mr. Radawetz dumped birds in piletwo. He feels they may have dumped this pile of birds earlier than they testified to in their evidence. As stated previously, I find that thegeese were dumped within the dates alleged in the information.

The Law [29] Counsel agree that the offences charged are regulatory in nature and that the defence of due diligence is available to theDefence. The Crown must prove that the accused committed the actus reus of the offences beyond a reasonable doubt and, if it does so,then the onus is on the accused to establish the defence of due diligence on a balance of probabilities. [30] In the leading case of R. v. Sault Ste.

Marie, (SCC), [1978] 2 S.C.R. 1299 (S.C.C.), Dickson J. categorizedstrict liability offences at p. 1326 as follows: Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facieimports 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.... (Emphasis mine)

[31] While both the accused and the Crown agree that the above passage applies to this case, they disagree on how it is to beapplied. Defence Position [32] In his written argument the accused states that the Crown need only to prove the actus reus and not the mental element of theoffence. He agrees that the defence of due diligence applies. He states that in order to establish the defence of due diligence an accusedmust establish one of two things: (

a) that he believed in a mistaken set of facts which if true, would render the act or omission innocent;or (

b) that the accused took all reasonable steps to avoid the particular event. He argues that the Court must first determine whether ornot the event giving rise to the charges was reasonably foreseeable and states “the focus of foreseeability is on the actus reus of theoffence charged. The analysis of foreseeability is actually the first thing the Court does in assessing whether an accused is guilty of astrict liability offence.” In applying that reasoning to this case he argues that “the accused believed (and had every reason to believe) thathis contractors were doing their job.

He had no reason to suspect otherwise. He’d never had any problems with these contractorspreviously. The testimony will establish he took reasonable steps to obtain good contractors to do this work for him. He believed at alltimes that his contractors had done their tasks properly. His subjective perception of the facts was reasonable when measured on anobjective standard.” He submits that on this branch of the test the accused is entitled to an acquittal. He refers to the cases of R. v.MacMillan Bloedel, [2002] B.C.J. No. 2083 (B.C.C.A.) and R. v. Pacifica Papers Inc., 2002 BCPC 265 , [2002] B.C.J. No.1639 (B.C.

Prov. Ct.) in support of this argument. [33] In MacMillan Bloedel, Justice Smith for the majority referred to strict liability offences stating, as Dickson J. did in Sault Ste.Marie, “that the defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render theact or omission innocent, or if he took all reasonable steps to avoid the particular event.” He stated in paragraph 49 that “Foreseeabilityof a risk of harm is central to the concept of negligence.

To quote the famous dictum of Lord Atkin in McAlister(Donoghue) v.Stevenson, (FOREP), [1932] A.C. 562 (U.K.H.L.) at 580, ‘You must take reasonable care to avoid acts or omissionswhich you can reasonably foresee would be likely to injure your neighbour.’” He went on to state “... One cannot consciously take stepsto avoid an event that one cannot foresee.” (Paragraph 52) [34] Alternatively, Defence counsel argues that the defence of due diligence avails as the accused has shown that he took allreasonable steps to avoid the destruction of edible meat in this case.

He cites numerous cases besides the two already mentioned tosupport this argument. Crown’s Position [35] The Crown argues that the two leading Supreme Court of Canada cases of Sault St. Marie and Lévis v. Tétrault, 2006 SCC 12, 2006 CarswellQue 2911, make no mention of the Crown having to prove the prohibited act was foreseeable. It suggests thatthose cases that insert this as an extra element of the offence to be proven by the Crown are in error and ought not to be followed. In thealternative, the Crown submits it has proven this element in the circumstances of this offence.

In her written argument regarding theactus reus the prosecutor states: The Crown submits we have proven the accused committed the actus reus of both offences. ... the accused is a licenced outfitter whowas operating pursuant to a licence issued by the Saskatchewan Ministry of Environment. ... he was responsible for arranging the hunts,taking the hunters out, bringing back the harvested wildlife, in this case geese, and that he was the person who directed the bird cleanersin the process to be followed.

He also checked the number of bags of geese breasts to be distributed to the hunters, sorted them, andpacked them into coolers for the respective hunters. Further, the evidence was clear that he was in possession of the wildlife when it waskilled and maintained possession throughout the chain of events from cleaning to packing. [36] The Crown argues that there is no dispute that edible flesh of game was wasted. She points to the evidence of Mike Smithwho felt that when he arrived to clean birds in pile two, some of the geese had maggots and were already inedible and that Mr. Smith andMr.

Radawetz also both acknowledged tossing out good edible geese. She continues that since the accused was in possession of thegame and he allowed the game to be wasted either by his own actions or through the actions of his employees, agents or agents of hisemployees, he is guilty of the charges. This, the prosecutor says, proves the actus reus of the offence against Mr. Mitchell and, sheargues that the onus then shifts to the accused to prove on a balance of probabilities that he exercised due diligence. The Crown goes on

to argue that he has not met that onus and must be convicted. Analysis [37] I will comment first on Count 2. [38] I am satisfied that all birds and bird carcasses found on piles one and two were shot by the accused’s hunting parties anddumped there as testified to by Mike Smith [39] I am not here to judge Mike Smith, but on the evidence I have heard it appears he was guilty of wasting edible bird meat. Headmitted responsibility during this trial.

I understand he was charged and pled guilty to a charge or charges arising out of this sameinvestigation. [40] I am not satisfied on his evidence or the evidence of Brad Radawetz that the meat on any of the geese was inedible due to flyeggs or maggots when they arrived at the lodge to clean geese. Officer Achtymichuk, an experienced enforcement officer, did not testifyas to fly eggs or maggots on the birds in piles one or two. The temperatures were quite cool during the days in question and some of thebirds were partially frozen. Perhaps Mr. Smith and Mr.

Radawetz saw frost in the birds and mistook this for fly eggs. I do not knowwhat they saw, but I am not satisfied that there were maggots or that the meat was rotting when they arrived to clean the birds. [41] I am satisfied that Mr. Smith worked for Mr. Mitchell when he cleaned birds. I do not find it material in this case that heworked for him on an hourly basis as opposed to being a salaried employee. It is necessary to state, however, that Mr. Mitchell cannotbe found guilty of the offences charged simply because Mr. Smith or people assisting him wasted edible meat.

One cannot be foundvicariously guilty of these offences. I agree with the comments made by the British Columbia Court of Appeal when it stated that “... anemployer may be required to put systems in place to avoid employee negligence and to prevent such negligence as might occur fromhaving adverse consequences. An employer who fails to put reasonable systems in place to avoid and to mitigate the consequences ornegligence may be unable to avail itself of a defence of due diligence. This is not, however, to say that an employer’s liability isvicarious in nature.” (R. v.

Kukuljan, 2008 CarswellBC 2559, paragraph 30.) [42] When will an employer be found guilty for the acts of an employee? This question was considered in Sault Ste. Marie, supra,and again by the Saskatchewan Court of Queen’s Bench in R. v. Westfair Foods Ltd., 2006 CarswellSask 178, in which Barclay J. stated: 10 Dickson J. in Sault Ste. Marie (City), supra, went on to discuss the defence of due diligence which was available to a personaccused of a strict liability offence. He stated at p. 1331: ... Where an employer is charged in respect of

an act committed by an employee acting in the course of employment, the question will bewhether the act took place without the accused's direction or approval, thus negating wilful involvement of the accused, and whether theaccused exercised all reasonable care by establishing a proper system to prevent commission of the offence and by taking reasonablesteps to ensure the effective operation of the system. ... 11 In R. v.

Wholesale Travel Group Inc., (SCC), [1991] 3 S.C.R. 154 (S.C.C.), the Supreme Court of Canadaestablished that an accused who is charged with a strict liability offence has the onus of establishing a defence of due diligence whichmust be proved on a balance of probabilities. [43] In answering the first of Dickson J.’s questions quoted in the above passage, I find that Mr. Mitchell did not direct norapprove of his bird cleaner’s destruction of the edible meat. [44] Moving to the next portion of the question to be asked, however, I find that Mr.

Mitchell did not exercise all reasonable careby establishing a proper system to prevent commission of the offence and by taking reasonable steps to ensure the effective operation ofthe system. He has not established the defence of due diligence on a balance of probabilities.

[ 45 ] Mr. Mitchell gave some basic direction to Mike Smith regarding the cleaning of geese including how to identify birds which were suitable for consumption and those which could be discarded. Mr. Smith was then left to show Brad Radawetz who was just helping him as a favour. The two young men were left to police themselves. On the evening when most of pile two was created conditions were ripe for things to go wrong. The two students were left to clean what they estimate was in excess of 200 birds.

It was a freezing cold night, snow began to fall, their fingers were getting very cold; the birds were stiff either from the length of time they had been left or from frost or both. Even under these conditions Mr. Mitchell did not provide supervision or a method of verification to make sure that edible meat was not wasted. He testified that he thought he went out and told them that they may have to move into the garage where it was warmer that night. The evidence of Mr. Smith and Mr. Radawetz, the two young bird cleaners, does not support this. Although Brad Radawetz believes Mr.

Mitchell came out and spoke with them, he related no such conversation. However, even if it were the case, Mr. Mitchell did not see to it that they followed through with his recommendation to move indoors even though they were obviously having difficulty cleaning birds outside that evening. [ 46 ] The evidence is that even after the students harvested only 69 birds out of 242 as found in pile two, Mr. Mitchell did not notice that birds were missing from that week’s shoot.

He testified that he rearranges birds in the freezer the morning after they are cleaned, making sure that each hunter leaves the lodge with his proper allocation of geese at the end of the week. Surely a system of basic record keeping should have alerted him to the fact that there were a large number of birds missing. Yet, he asked no questions and the following week an additional six birds were wasted by Mr. Smith and his co-workers Dillon and Colter. I find Mr.

Mitchell’s explanations that some hunters might give geese to local residents and some geese being left in the freezer waiting for the expected return of California hunters to be inadequate. Surely having an extra 140 geese in the freezer should not have detracted him from realizing that only 69 geese out of 242 were processed. Mr. Mitchell testified that this was the first time he ever had problems with his cleaners. I am left to wonder how he would ever know if his cleaners wasted birds in the past since he had an inadequate system of supervision over them and chose simply to trust them.

Adding to the problem was his ineffective system of recording the number of birds cleaned and comparing it with the number killed. [ 47 ] Although reported cases in the area of strict liability are very fact specific, I find some parallels in the present case when I read others such as R. v. Walsh , 2010 CarswellNfld 114 and R. v. Sportsman Lodge Ltd. , 2007 SKPC 84 . [ 48 ] R. v. Walsh is a decision dealing with a corporation, Q. Ltd., which was required to report information to the Department of Fisheries and Oceans via copies of purchase slips. Q.

Ltd. put no system in place to ensure correct reporting by its employees. A dockside monitor and grader mistakenly recorded the weight of a catch of snow crab. Another weighmaster completed the purchase slip using the incorrect figure. Q. Ltd. argued it had exercised due diligence in this regulatory matter. In acquitting the second weighmaster but upholding the conviction entered by the trial judge against Q.

Ltd., the Supreme Court of Newfoundland and Labrador found that the company had the obligation to submit the purchase slip and an adequate system was required in order to establish, at least in part, a due diligence defence. (Paragraph 45) [ 49 ] In R. v. Sportsman Lodge Ltd. my colleague Robinson J. found a company and its manager guilty of regulatory offences. The Court found that the manager had verbally told his fishing guides not to fish a certain lake without permission and also provided some written instruction in that regard.

In spite of those instructions, the guides fished that lake and breached the terms of the lodge’s licence. The Court found that the manager did not make sufficient inquiries of his clients, guides, or another outfitter concerning activities on that lake. He never at any time asked his main assistant to go out and monitor activities on that lake or monitor the activities himself.

The Court found that the company and its manager did not exercise due diligence simply by instructing the guides but then leaving it to them to police themselves. [ 50 ] These and other cases are clear that reasonable care and due diligence do not mean superhuman efforts.

However, the absence of any system designed to prevent the commission of the offence, in this case the wastage of meat, or the absence of reasonable steps to ensure the effective operation of the system, will result in a finding that an employer has not exercised due diligence. [ 51 ] Defence counsel argues that it was not a requirement that the accused stand over these boys and watch their work. I agree with that comment but I disagree that Mr. Mitchell did all that was required. There are numerous safeguards he could have put in place to prevent waste of edible meat.

When hunters returned from their shoot he could have sorted the damaged birds from the good birds or had a more senior staff member do so. After the birds were cleaned, he or a senior staff member could have gone through those the boys were discarding. When weather conditions were poor he could have made sure they moved indoors. He should have had a proper system of record keeping so he could compare the number of birds killed with the number cleaned and then question cleaners when the numbers did not make sense. These things I find he could have done is not meant as an exhaustive list.

He should not simply have left it up to these high school students to make these decisions without a system in place to guard against waste.

[52] The accused urges me to look at this case by first asking myself the question of whether or not it was foreseeable that thecleaners would waste birds. Even asking myself that question first, I find that it is foreseeable, that when young people attend to cleanbirds on somewhat of an ad hoc basis, perhaps bringing their friends or family members along it is foreseeable that proper decisions willnot be made regarding what is and is not edible meat. Even in the best of conditions, and especially when relying on such young casualhelp, Mr.

Mitchell should have a system in place to guard against errors in judgment on the part of the bird cleaners. When pile two wasmade, the conditions were anything but ideal given the number of birds and the inclement weather and it was foreseeable that thestudents would not only make errors in judgment but would cut corners and dispose of perfectly good birds, working outdoors as theywere. The wasting of edible meat was foreseeable.

Only the large number of edible birds discarded in pile two was surprising. [53] I therefore find the accused guilty of Count two. [54] The wording of Count one is general in nature charging a contravention of terms, conditions or restrictions contrary to section19(1)(

b) of The Outfitter Guide Regulations. On the evidence and argument I have heard it appears that the term of his licence hecontravened was his requirement to comply with section 22(1) of The Wildlife Regulations due to the wasting of edible flesh of huntedgeese. In the facts of this case therefore, it appears to me that Count one is in essence another way of stating Count two.

As I havefound the accused guilty of Count two, I am entering a conditional judicial stay of proceedings on Count one based on the principleenunciated by the Supreme Court of Canada that there should not be multiple convictions for the same delict against the same accused. (R. v. Kienapple, (SCC), 1974 CarswellOnt. 8; R. v. Hammerling, 1982 CarswellMan 137) Conclusion [55] I find the accused guilty of Count two and enter a conviction on that count. [56] I am entering a conditional judicial stay on Count one. J. Plemel, J