Her Majesty the Queen - v. -, 2014 SKPC 65

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 065 Date: June 3, 2014 Ticket No.: 7459076 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Steven James White Appearing: Conservation Officer Bruce Reid For the Crown Self-Represented For the Accused DECISION M. GORDON , J [ 1 ] Steven James White is charged under The Wildlife Regulations Act of hunting wildlife to wit: white-tailed deer within Buffalo Pound Provincial Park pursuant to s. 5(1)(

a) of The Wildlife Act . [ 2 ] There was not much dispute on the evidence. Two experienced conservation officers testified as to what occurred on the morning of November 2, 2013. Conservation Officer Cherney has been working in the Moose Jaw area for eight years and has been with

the Ministry of Environment for 19 years. He was with Conservation Officer Riendeau and they were at the Buffalo Pound Lake District. There had been numerous complaints over the past few years about hunting in Buffalo Pound Provincial Park. As a result, they decided to set up a decoy operation and place in the area what they referred to as a controlled wildlife model (known as CWM). In other words, a fake white-tailed buck. This CWM was placed in a fenced in area that is at the northeast corner of the park. This is zone 20, being the Regina/Moose Jaw wildlife zone and it was open season for hunting.

However, no hunting is allowed under the Act in a provincial park. [ 3 ] Officer Cherney described the grid road adjacent to the park. This road is outside of the park. As well, the rest of the surrounding area is not in the park. Officer Cherney prepared and filed a map on which he marked the grid road, the fence, the gate and the CWM. He also marked the position of the accused’s vehicle as well as his position.

Officer Cherney’s job was to observe the area where the controlled wildlife model was situated and observe and document the traffic in the area and any violations and relay this information to his standby unit that was manned by Officer Riendeau. Officer Cherney was situated so that he could see this area clearly. He had a good view of the roadway and the corner where the road turned into the park. [ 4 ] At 8:42 a.m., Officer Cherney spotted a dark truck proceeding from the north to the south on the grid road. He was watching the vehicle through his binoculars.

This truck stopped on the road at the northeast corner of the fenced in park area. The driver was wearing an orange jacket such as is common in hunting season. He relayed this information to Officer Riendeau. He noted the vehicle proceed slowly south along the grid road and then at the curve, turned around and went north and proceeded to a spot identified as 2 nd on the map. The officer was able to see the licence plate number of this black Honda Ridgeline being Saskatchewan 139 IRB.

Subsequently, Officer Cherney observed the accused’s truck to stay at this position for about two minutes and then it backed up slowly to the gate on the southeast corner of this fenced in area of Buffalo Pound Provincial Park. At this point he noticed a passenger step out of the truck who was wearing a camouflage jacket and toque. This passenger did not have a firearm. He walked through the pasture gate into the pasture which is within the park where the decoy was located.

The Honda vehicle returned back to the northeast corner which was about the same location as the first stop and again this is marked on Exhibit P-1. The driver with the orange jacket got out. He was observed to have a firearm, a muzzle loader, and he stood behind his vehicle crouched in a lower stance. The officer observed the driver poke his head out and wave to the west and then return back into a crouched position behind the vehicle. [ 5 ] At this point Officer Cherney concluded that the pair of individuals he saw were hunting and relayed this information to Officer Riendeau.

He then saw the driver who was behind the vehicle stand up straight and place the muzzle loader between himself and the vehicle as Officer Riendeau was approaching from the east. Officer Riendeau drove south along the grid and entered the fenced in park area through the gate where the passenger had been observed to enter.

At this point Officer Cherney observed the first individual, the driver, to be making a motion consistent with emptying his muzzle loader and then placed it in the back of the truck. [ 6 ] At this point the individual in the fenced in area walked northeast back to the Honda truck and Officer Riendeau made contact with these individuals. Officer Cherney left the area at about 9:48 a.m.

During this entire time the officer did not note any other vehicles. [ 7 ] There were no hunting signs posted and clearly visible in the area in question. [ 8 ] On cross-examination Officer Cherney elaborated that there had been previous complaints about deer being shot within the park boundary over the past several years. He recalled two years ago, a deer had been shot in the buffalo paddock on the east side of the lake. The officer estimated there had been about six complaints over the past several years, but not at this particular location.

The controlled wildlife model was used and placed in an area of the park that was a safe place and remote enough so that there wasn’t a lot of traffic and there was availability for the officers to observe without being seen. The officer indicated there was no intent to entice people into the area but the purpose was to identify violations similar to the complaints they had received which was hunting in the provincial park. [ 9 ] Officer Cherney agreed that he could not see the first individual point the muzzle loader and he also agreed that it was a serious infraction to have a loaded firearm in a vehicle.

The officer also agreed the grid road and the road allowance are outside the park boundary and the accused’s vehicle was not located within the park. [ 10 ] Officer Riendeau has been with the Ministry of Environment for 26 years and spent all of his time in the Moose Jaw area. He was working November 2, 2013, with Officer Cherney. He was located in a vehicle one and a quarter miles to the northeast. Once he was advised by his partner, Officer Cherney, he proceeded to the area, drove by the black Honda truck and noticed an individual with a

muzzle loader in his hand and he identified the person as the accused, Mr. Steven James White. Officer Riendeau drove to the southeast gate and then proceeded northwest and west and saw an individual west of the decoy or CWM. He approached this individual who was about 75 yards from the decoy. The individual was dressed in a camouflage jacket and blue jeans and was identified as Teodoro Doblas. Officer Riendeau requested this individual to proceed to the Honda truck and he would meet him there. At the truck, the officer did a compliance check and found both individuals had valid white-tail deer licences.

He also found two muzzle loader firearms. It was muzzle loader season. A series of eight photos was marked as Exhibit P-2 showing the area and the no hunting or shooting signs that were posted. [ 11 ] On cross-examination Officer Riendeau agreed that there was a discussion with the accused lamenting that there were not many deer and that the new licencing system was causing some problems. It was agreed that this decoy deer was a large replica but would not be winning any trophies. The officer gave a verbal warning to the two individuals that their tags were not completed correctly.

The officer admitted that when these guns were seized, they were not loaded. [ 12 ] The Crown concluded its case. [ 13 ] The defence filed a portion of a RM map showing the area in question at the edge of Buffalo Pound Provincial Park. This went in as Exhibit D-1 by consent. The defence did not call any other evidence. POSITION OF THE PARTIES [ 14 ] The Crown submits that Mr. White was engaged in hunting as defined in s. 2 of The Wildlife Act . The CWM was placed inside the provincial park boundary and this area is clearly marked as park with no hunting signs posted.

This operation was in response to complaints that the Ministry of Environment had received in the past couple of years about hunting deer within the park boundary. This type of operation is the only way that violators can be caught. The evidence from the officers establishes that Mr. White was standing behind his vehicle holding his muzzle loader. The vehicle was on a grid road that runs alongside the park boundary. There was a man, a second individual, inside the park in the vicinity of the CWM. He was identified as Mr. Teodoro Doblas. He did not have a firearm. Mr.

Doblas was observed to be moving south and west from the CWM towards Mr. White and his Honda truck. [ 15 ] The Crown submits that Mr. White’s activities come within the wide definition of hunting in the Act . Specifically Mr. White was stopped on this grid road adjacent to the park boundary to the west. Mr. White was observed to drop off the second individual at the gate at the southeast corner and then return north close to the northeast corner and closer to the CWM. Mr. White was observed at the rear of his truck holding his muzzle loader. From Officer Cherney’s observations, it appeared to him that Mr.

White was doing something with his muzzle loader. As Officer Riendeau’s vehicle approached from the east, Officer Cherney testified that it appeared to him that Mr. White was unloading his muzzle loader. Mr. Doblas, the Crown says, was assisting Mr. White by trying to move the “deer” closer to Mr. White and perhaps even out of the park area so Mr. White could take a shot at it with his muzzle loader. The Crown argues that the presence and actions of Mr. Doblas corroborate and are consistent with the evidence that shows Mr.

White was indeed hunting. [ 16 ] The Crown argues that this is not a question of entrapment as their department was responding to complaints of deer being shot in the park and they were carrying out their duties as enforcement officers. The officers did not go beyond the provision of providing an opportunity to commit an offence and they did not induce the commission of an offence. The Crown filed summaries from four cases namely Clarence Leo Johnson and Her Majesty the Queen , a transcript of a decision, June 17, 1991 in the County Court for District #4 at Windsor, Nova Scotia; Her Majesty the Queen v.

Joseph Earl Shawn Rivers , a transcript of a case from the Court of Queen’s Bench Trial Division in New Brunswick, October 17, 1986; Her Majesty the Queen v. George W. Caisse , a transcript from the Provincial Court of Saskatchewan, Meadow Lake, June 27, 1994; and R. v. Godin , New Brunswick Court of Queen’s Bench Trial Division, June 13, 1987. [ 17 ] Mr. White had two arguments although in the final analysis, he focused mainly on one argument. During some of Mr.

White’s cross-examination of the officers, he suggested to the witnesses that the placing of this CWM in the park by the grid road (which was outside of the park) was essentially entrapment or enticement to commit an offence. In closing argument, Mr. White did not elaborate on this point.

[18] Mr. White’s main argument is that the Crown has not proven beyond a reasonable doubt that he was in fact hunting. He noteshe was stopped on a grid road, a well travelled road, and that is all the evidence there is. There is no evidence that the muzzle loader wasloaded when the conservation officer came upon him. There was no evidence that the muzzle loader was being held in a position toactually use it. Mr. White submits this is simply not enough even with the wide definition of hunting in The Wildlife Act. Mr. Whitewent on to say he would not have been on that road if he had not got lost.

However, I reminded him that he had not taken the witnessstand and therefore I could not consider that as evidence. I might add that the Court explained the trial process to Mr. White at thecommencement of the proceedings. Mr. White was reminded by the Court during his cross-examination of Crown witnesses that it wasnot a time for him to give his own evidence. It was a time to question the witnesses. Mr. White was again reminded at the conclusion ofthe Crown’s case that he had a choice of whether to testify or not.

He was told that if there was no other defence evidence then the Courtwould decide the case on the evidence given by the two conservation officers in their examination-in-chief and cross-examination. ANALYSIS [19] The first issue that was raised by Mr. White, although not pursued in any great detail, is whether this was a case ofentrapment. The leading authority in this respect is R. v. Mack, (SCC), [1988] 44 C.C.C. (3d) 513 (S.C.C.). Lamer J.,as he then was, gave the following

summary of the law of entrapment at page 559: As mentioned and explained earlier there is entrapment when, (

a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person isalready engaged in criminal activity or pursuant to a bona fide inquiry; (

b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunityand induce the commission of an offence. [20] In R. v. Barnes, (SCC), [1991] 63 C.C.C. (3d) 1 (S.C.C.), Lamer C.J.C. clarified this point at pages 10 and11: The basic rule articulated in Mack is that the police may only present the opportunity to commit a particular crime to an individual whoarouses a suspicion that he or she is already engaged in the particular criminal activity.

An exception to this rule arises when the policeundertake a bona fide investigation directed at an area where it is reasonably suspected that criminal activity is occurring. When such alocation is defined with sufficient precision, the police may present any person associated with the area with the opportunity to committhe particular offence. Such randomness is permissible within the scope of a bona fide inquiry. [21] There are many cases from Provincial Courts specifically dealing with entrapment and regulatory offences. Following thereasoning of the Supreme Court, these cases usually do not find entrapment.

Entrapment should only be found in the clearest of cases. The evidence of the conservation officers here, which I accept, is that the decoy device or CWM had been established by departmentalpolicy in response to complaints of illegal hunting or other contraventions of The Wildlife Act in provincial parks. In this case OfficerCherney stated there had been complaints over the past couple of years of hunting in Buffalo Pound Provincial Park.

Officer Cherneyalso testified that the location chosen for the placement of the CWM took into account that it was a safe place for enforcement of the nohunting provisions in all provincial parks. The officer stated that this is one of the few effective methods of investigating this type ofinfraction. [22] In my view the officers did not go beyond providing an opportunity for someone to commit this offence under The WildlifeAct. The action of the conservation officers was entirely appropriate. This decoy was set up as a result of complaints made to theMinistry by citizens of this province.

As well, the area was well posted with no hunting signs and therefore it is clearly, even withoutthe CWM or decoy, an area where there is no hunting allowed and Mr. White should not have even considered trying to pursue ananimal in that area. I do not find any other considerations or factors that would persuade me that the conservation officers went beyondwhat was appropriate. An accused person has the burden of establishing entrapment on a balance of probabilities.

Considering all of theevidence, I am not satisfied this was such a situation and I do not find that there was entrapment. [23] The second issue is whether the activities that were observed by the conservation officers comes within the definition ofhunting under the legislation. In R. v. Shawaga, 2008 SKPC 35, Judge Morgan states at paragraph 5 the purposes of the SaskatchewanWildlife Act to be as follows:

There can be no doubt that the object 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. [24] 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”. The judge made reference to R. v.

Agpro GrainInc., (SK KB), [1996] 142 Sask. R. 37 (Q.B.), 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 regulatorylegislation 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. [25] The Crown bears the burden of proving each element of the offence beyond a reasonable doubt. The offence charged is astrict liability offence based on the criteria set out in R. v. Sault Ste.

Marie (City), (SCC), [1978] 2 S.C.R. 1299 (S.C.C.). In R. v.

Eckel, 2007 SKPC 78, Judge Nightingale explained as follows at paragraph 12: ... this means that in order to obtain a conviction the Crown need only prove beyond a reasonable doubt that the Accused committed theact; their motive or intention is not a necessary element of the Crown’s case. [26] Therefore, putting it another way, once the Crown has proved beyond a reasonable doubt the actus reus of theoffence, a conviction will follow unless the accused can show he exercised due diligence in the circumstances. [27] 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 provision in

section 2: “hunting” includes taking, wounding, killing, chasing, pursuing, worrying, capturing, following after or following on the trail of,searching for, shooting at, trapping, setting snares for, stalking or lying in wait for any wildlife, or attempting to do any of those things,whether or not the wildlife is then or subsequently captured, wounded or killed; ... [28]

Section 30 states: Carrying a firearm in a locality where any wildlife may reasonably be expected to be found is, in the absence of evidence to the contrary,proof of hunting. [29]

Section 69 states: Any person who aids, abets, counsels or procures the contravention of a provision of this Act or the regulations is guilty of an offenceand liable on

summary conviction to the penalties for the offence that the person has aided, abetted, counselled or procured. [30] The Supreme Court has stated that it does not matter that only one person is charged with an offence, even where others mayhave been involved (R. v. Issac, (SCC), [1984] 1 S.C.R. 74). [31] Section 5(1) and (2) of the Regulations states:

(1) No person shall, without a licence for the purpose: (

a) hunt, poison, molest or disturb any wildlife within; (

b) destroy or alter any wildlife habitat within; or (

c) carry, possess or discharge any firearm within or discharge a firearm over; a game preserve, road corridor game preserve, wildlife refuge, wildlife management unit, regional park, provincial park, protected area or recreation site.

(2) Notwithstanding clause (1)(c), a person may transport an encased firearm in a vehicle through the areas specified in subsection (1). [ 32 ] When I consider all of the circumstances and noting that the only evidence before the Court is from the conservation officers in examination-in-chief and cross-examination, I am satisfied that the Crown has proven beyond a reasonable doubt that Steven White was “hunting” within the definition in the Act . I rely on the following evidence:

(1) Mr. White was dressed in hunting clothes and so was his passenger, the fellow that was out in the field walking towards the decoy.

(2) Both had valid white-tail deer licences for hunting.

(3) It was in season for hunting deer with a muzzle loader.

(4) Mr. White’s actions in driving the vehicle down the road, letting his passenger off, driving it back to the corner, crouching behind the vehicle with his gun, waving to the west where Mr. Doblas (the passenger) was walking in the field inside the park towards the decoy are all consistent with a person who is hunting. [ 33 ] There was no argument that Mr. White was unaware that this area where the CWM was located was within the park boundary. I did not hear any other explanation as to any other reasonable inference that could be drawn from the actions of Mr. White and observations made of Mr.

White by the conservation officers. Therefore I must conclude the only reasonable inference is that he was hunting in a prohibited area in violation of the legislation. M. Gordon, J