Her Majesty the Queen - v. -, 2014 SKPC 106

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 106 Date: May 8, 2014 Information: SOTI7453684 Location: Carrot River _____________________________________________________________________________ Between: Her Majesty the Queen - and - Stewart Schmidt Appearing: Wade Rogers For the Crown James Streeton For the Accused DECISION ON VOIR DIRE AND TRIAL I.J. CARDINAL , J INTRODUCTION [ 1 ] On January 4, 2014, Conservation Officer Jeremy Johnson was conducting angler compliance checks in the area of the E.B. Campbell Dam, near Carrot River, Saskatchewan.

During the course of his duties he observed a firearm in the vehicle of Stewart Schmidt. He subsequently checked the firearm, found that it was loaded, and charged Mr. Schmidt with unlawfully carrying a loaded firearm in a vehicle contrary to s. 40 (

a) of The Wildlife Act , 1998 , S.S. 1998, c. W-13.12. (“ Act ”)

[ 2 ] Mr. Schmidt alleges a violation of his Charter rights under s. 8 and argues the seizure of the firearm and statement he provided to the Conservation Officer should be excluded from evidence. [ 3 ] For the following reasons I find there was no Charter breach and both the evidence of the loaded firearm in the vehicle and the warned statement provided to the Conservation Officer are admissible into evidence. [ 4 ] The trial proceeded in a voir dire with the Crown calling Officer Johnson. The Defence called no evidence.

Both counsel agree that the evidence from the voir dire will be applied to the trial proper and there will be no further evidence called on the trial proper by either party. ISSUES 1. Did the officer unlawfully search Mr. Schmidt ’s vehicle resulting in a violation of his Charter rights under s. 8 to be free of unreasonable search and seizure? 2. If there was a violation of Mr. Schmidt ’s s. 8 Charter rights, should the firearm and ammunition and his statement to the Conservation Officer be excluded as having been tainted by the unlawful search?

FACTS [ 5 ] As is often the case in these matters the facts are not in dispute. On January 4, 2014, Officer Johnson drove to the area of the E.B. Campbell Dam in order to conduct fisheries compliance checks and monitor fishing activity on the river. He arrived at the dam around 1:30 p.m. and observed three ice huts on the ice below the dam. One was a red pop up hut with a quad sitting beside it. The officer drove over to the west side of the dam as he was aware anglers usually park in that area.

He observed one vehicle, being a truck, with ramps coming out of the box, which he determined were for loading and unloading a quad or snowmobile into the truck box. [ 6 ] He walked up to the passenger side of the truck and looked through the window. He could clearly see a camouflage coloured rifle resting against the driver’s seat, with the muzzle on the floor. He stated this was a typical position for a hunter who is actively hunting.

He could also see a box of ammunition in the centre console and a wildlife caller on the dash. [ 7 ] The officer walked around the front of the vehicle, looked through the driver’s side window and noted that the action on the firearm was closed. He then walked to the rear of the vehicle and obtained a license plate number. [ 8 ] The officer returned to his patrol vehicle and radioed dispatch to run the license plate number through the SGI data base. The information relayed was that it was registered to Stewart Schmidt from Porcupine Plain. He also ran another check and found that Mr.

Schmidt had two prior entries for fisheries violations. [ 9 ] The officer then drove back across the spillway and remained at that location and monitored anglers and completed compliance checks until 8:30 p.m. He did nothing further in relation to the firearm in the Schmidt truck. At approximately 8:30 p.m., through night vision goggles, he observed the people in the red pop-up shack that had the quad beside it taking it down and packing up. There were three people in the group. He observed one of them load gear onto the quad and go up to the hill to the Schmidt truck.

He saw it go back down and pick up an angler and more gear and drive back up to the truck.

[ 10 ] The officer then drove to the west side of the dam to conduct a fisheries compliance check for license and limits and to perform an inspection on the firearm. [ 11 ] He met the two people on the quad as he approached the Schmidt truck. The officer walked up to the truck, identified himself and they had a conversation about fishing. The officer asked who owned the truck, and these people confirmed the truck belonged to Stewart Schmidt and that he was still on the ice. The officer conducted a fisheries compliance check on the two individuals and asked to see their valid fishing licenses.

They did not have them on them so they walked over to the truck and opened the passenger rear door and the passenger front door and appeared to be looking for their licenses. [ 12 ] This became a concern to the officer because they were both now inside the truck within arm’s reach of the firearm. The officer felt it was a safety issue and that he needed to inspect the firearm, so he told them he was coming to inspect it.

At this point he did not know if the rifle was loaded or unloaded. [ 13 ] The officer went to the driver’s side door, opened it and flashed his flashlight on the firearm, reached in and opened the action. He saw one spent casing in the chamber and could see two live rounds in the magazine that was attached to the firearm. [ 14 ] He advised the two individuals that the firearm was loaded and removed the firearm to the patrol unit where he unloaded it and secured it. Exhibit P-1 contains pictures of the firearm and ammunition. [ 15 ] He returned to the Schmidt truck and requested the individuals bring Mr.

Schmidt up from the ice. Approximately five to ten minutes later, at approximately 9 p.m., Mr. Schmidt approached the officer’s vehicle and provided a warned statement, which he wrote out himself, to the Conservation Officer. [ 16 ] Exhibit P-2 is the written statement which is on a pre-printed form. It is clear Mr. Schmidt was given his Charter rights and caution and declined to contact a lawyer. In essence, he admits there was a loaded firearm in his vehicle and that he did not mean for it to be there. He stated that he was using the firearm at his house to call his dog in before he went fishing.

His dog is a fully trained hunting dog who comes running when he hears a gun fire. Mr. Schmidt fired the gun, the dog came to him and Mr. Schmidt put the gun on the seat of the truck while he took the dog into the house. He returned to the truck and put the gun beside his seat, as he states “where it always was”, not even thinking, as it had slipped his mind, that it was loaded. He states that when his friend came down and told him there was a Conservation Officer at his truck his “heart sank I knew the clip got left in the gun.

It was a complete mistake and I really didn’t mean for it to happen.” [ 17 ] The officer testified that he was exercising his authority under s. 59(1) of the Act and conducted an inspection of the vehicle and firearm in question. While he agreed he had ample time to obtain a search warrant pursuant to s. 61, either by himself or through other officers, and that there were no exigent circumstances, he did not believe a warrant was required. LEGISLATION [ 18 ] The Wildlife Act is provincial legislation that squarely falls into the category of public welfare or regulatory legislation.

Hunting activity is highly regulated in Saskatchewan. It is common knowledge that sport hunting is a privilege, not a right, and that a large component of regulating this activity involves restrictions on time and place of hunting, the type of firearm and ammunition that can be used as well as their transportation, and the species of animals that can be hunted.

The continued management and control of wildlife populations in the province is the overriding concern of the legislation. [ 19 ] Like most regulatory legislation, the Act provides wide authority to officers to conduct inspections of vehicles and places (other than a dwelling house) without having to obtain a search warrant to do so. Amongst a number of duties, officers are tasked with ensuring people have the proper licence to hunt, that the firearms they use meet the proper calibre and description for hunting, and that any wildlife taken is within the allowable bag limit and species.

In order to effectively carry out their duties, officer are given broad powers to stop and inspect vehicles at any reasonable time for “any purpose relating to the administration or enforcement” of the Act , as

granted by s. 59(1): 59(1) Subject to subsection 61(4) [which requires a warrant to enter a private residence unless the occupant consents to the entry], for any purpose relating to the administration or enforcement of this Act , a wildlife officer may do all or any of the following: . . .

b) enter at any reasonable time and inspect any place, including any premises or vehicle , in which the wildlife officer has reasonable grounds to believe that: (

i) there is anything to which this Act applies; (ii) any activity to which this Act applies has been carried on, is being carried on or is likely to be carried on; . . .

c) require the owner or any person in possession of a place, including any premises or vehicle, being inspected pursuant to this

section and any agent, representative, partner, director, officer or employee of the owner or person, to: (

i) answer any questions that may be relevant to the administration or enforcement of this Act; and (ii) provide the wildlife officer with all reasonable assistance; . . .

e) require any of the persons mentioned in clause (

c) to produce: (

i) anything to which this Act applies; . . . (

f) inspect anything to which this Act applies or any record that is required to be kept pursuant to this Act or that relates to the administration of this Act. [My emphasis] [ 20 ] Inspections are clearly allowed by the legislation. The officer need not have any suspicion that an offence has occurred to conduct an inspection. The officer may conduct an inspection in circumstances where he has reasonable grounds to believe there is anything to which the Act applies. Reasonable and probable grounds to believe an offence has been committed under the Act are not required before an inspection can be initiated.

POSITION OF THE PARTIES [ 21 ] While Defence counsel acknowledges s. 59(1) of the Act permits inspections, he argues the inspection took place when the officer looked through the window and observed the firearm in the vehicle. He asserts a search occurred when the officer decided to enter the vehicle, without the consent or presence of Mr. Schmidt, seven hours after he had initially observed the firearm in the vehicle. This time lag gave the officer ample opportunity to obtain a search warrant pursuant to s. 61(3) of the Act or direct other officers to do so in order that he could search the vehicle and firearm.

He relies upon R. v. Jarvis 2002 SCC 73 and the “predominant purpose” test in support of his argument that the officer’s actions were directed at determining penal liability and the full force of the Charter applies. This being a warrantless search, it is prima facie unreasonable and it falls to the Crown to demonstrate that the search was not unreasonable. Exclusion of the firearm, ammunition and statement by the accused should follow. He also relies upon R. v. Romano [2003] S.J. No. 158 (Sask. Prov. Ct.) and R. v. Denys [1995] S.J. No. 341 (Sask. C.A.) .

[ 22 ] Crown counsel submits that the legislation in question is regulatory in nature, not penal, and argues s. 59(1) of the Act is sufficiently broad to allow the inspection to encompass both the initial viewing through the window and the subsequent entry into the vehicle to check the firearm. There was no immediacy initially as no one was around the vehicle. Once the two anglers entered the vehicle, while the firearm was still inside, the officer was entitled to inspect it to ensure officer safety and that the firearm is in a safe position in the vehicle.

Further, even on an application of the Jarvis test, there was no Charter violation and the evidence ought to be admitted. [ 23 ] The real issue here is whether what may have commenced as a statutory inspection became a search within the meaning of s. 8 of the Charter .

SECTION 8 OF THE CHARTER [ 24 ]

Section 8 of the Charter states: 8. Everyone has the right to be secure against unreasonable search or seizure. [ 25 ] As noted in R. v. Getz 2014 SKQB 92 at para. 23 , the interest that s. 8 protects is privacy. Charter rights are not absolute and every search does not necessarily become an unreasonable one within the meaning of s. 8. At para. 24 the Court observed: 24. The first step in the s. 8 analysis, accordingly, is to determine whether the accused had a reasonable expectation of privacy in relation to the property that was searched.

If he did not, there was no search within the meaning of s. 8, and thus, no potential infringement of the accused’s rights. The particular privacy interest at stake is territorial privacy. [ 26 ] In R. v.

Tessling, 2004 SCC 67 , at para. 22 , the Supreme Court of Canada outlined the diminished expectation of privacy as one moves from a dwelling house (“there is no place on earth where persons can have a greater expectation of privacy than within their dwelling-house”), to the perimeter space around the home, to commercial spaces, to private vehicles, and at the bottom of the spectrum, a prison. [ 27 ] All circumstances must be considered in determining a person’s expectation of privacy.

Getz , supra, at paras. 25 and 26 , noted that “the existence and extent of the reasonable expectation of privacy accordingly turns in part on the use of the property at issue” and the “nature of the search is also relevant”.

Section 8 of the Charter protects people, not places, but an examination of the place is necessary to provide context to the analysis. [ 28 ] If a reasonable expectation of privacy is found, the next question is whether the search was reasonable. ( Getz at para. 28 ). At this stage, the test is not the “predominant purpose test” as espoused in Jarvis . Rather, the proper test is that established by the Supreme Court of Canada in R. v. Nolet , 2010 SCC 24 as referenced in Getz , supra, at para.36: [36] The decision in R. v. Nolet , 2010 SCC 24 , [2010] 1 S.C.R. 851 is also instructive.

Nolet related to a highway traffic stop of a commercial vehicle which resulted in the discovery of marijuana, and a trafficking charge. The Highway Traffic Act , S.S.1986, c. H-3.1 authorized a peace officer to conduct a warrantless search for evidence of an offence if he had reasonable grounds to believe the vehicle was being operated contrary to regulatory requirements. The trial judge applied R. v.

Jarvis , 2002 SCC 73 , [2002] 3 S.C.R. 757 , where the court found that provisions of the Income Tax Act , R.S.C.1985, c. 1 (5 Supp.) which authorized a search in the course of a civil tax audit were reasonable, but could not be used to justify the continuation of the search after the predominant purpose shifted from a civil dispute to a penal investigation.

She found that the police were more interested in looking for evidence of criminal activity than in looking for breaches of regulatory requirements when they searched a small duffel bag which was found in the sleeping compartment of the tractor unit, and found $115,000.00 cash.

[37] The Supreme Court agreed with the Saskatchewan Court of Appeal, which found that there was no violation of the accused's reasonable expectation of privacy. Binnie J., for the court, held (at para. 45) that the "predominant purpose" test did not apply in the context of a traffic stop under The Highway Traffic Act . He noted that the purpose of such a stop is, unlike the situation in Jarvis , "always penal".

R.C.M.P. officers patrolling the Trans-Canada highway are interested in "any number of potential infractions", and that the fact that they thought they might find illegal drugs did not convert a lawful search into an unreasonable one. He distinguishes Jarvis , and frames the proper question to be asked as follows: 39 Police power, whether conferred by statute or at common law, is abused when it is exercised in a manner that violates the Charter rights of an accused. This is a better framework of analysis, in my opinion, than the "predominant purpose" test applied here by the trial judge.

If the Charter is violated, it makes little difference, I think, that the police had in mind multiple purposes. A valid regulatory purpose, whether predominant or not, would not sanitize or excuse a Charter violation. . . . 41 I agree with Wilkinson J.A. that the question is not "determining which purpose is predominate or subordinate" (para. 85). As long as there is a continuing regulatory purpose on which to ground the exercise of the regulatory power, the issue is whether the officer's search of the duffle bag infringed the reasonable expectations of privacy of the appellants.

I do not think that it did, having regard to the totality of the circumstances as they had progressed to the time of that search. [ 29 ] The case of Romano, supra, was decided and considered on the basis of Jarvis , well before Nolet became the leading case. As such, I find the Romano case of little assistance. As well, the decision in Denys, supra, is also of little assistance as it involves provisions of a former version of The Wildlife Act and is also prior to the Supreme Court of Canada decision in Nolet . [ 30 ] In R. v.

Mission Western Developments Ltd., 2012 BCCA 167 , the British Columbia Court of Appeal came to the same conclusion that the “predominate purpose test” outlined in Jarvis did not apply in the context of fisheries inspections.

Although the Supreme Court of Canada in Nolet did not overturn Jarvis, they confined its application in the context of tax audits (in the nature of a civil dispute) where the taxpayer’s relationship to the state evolves into that of a potential accused and the “shifting focus” of the nature of this relationship is used in determining “at what point the relationship between the state and individual becomes adversarial” (para. 40) . [ 31 ] In Mission, supra, a fisheries biologist and a fisheries officer with the Department of Fisheries and Oceans (DFO) attended to a creek running through a commercial lot as they had observed activity being conducted in the area.

They entered through an unlocked gate, made observations of cut and stacked wood, removal of bush and spoke to a bobcat operator working at the site. After inspecting the site for an hour, the two left. Charges were subsequently laid against the company and its director. At trial a voir dire was held into an allegation of a violation of the defendants’ s. 8 Charter rights. The Court found a violation, excluded certain evidence and subsequently acquitted the accused. The Fisheries Act allowed for inspections for the purpose of ensuring compliance with the Act .

At the heart of the trial court’s decision was the finding that the defendants had a high expectation of privacy in the site and the predominate purpose of the DFO employees actions were to gather evidence for the purposes of a penal proceeding and thus the employees could not rely upon their power of inspection. On appeal, the British Columbia Superior Court overturned the acquittals and ordered a new trial. A further appeal to the British Columbia Court of Appeal was denied, with written reasons.

At paras. 12 and 39, the High Court noted: [12] The appeal judge also found that the trial judge had incorrectly applied the “predominate purpose” test to the DFO inspection. He held that the correct test, as stated by the Supreme Court of Canada in R. v.

Nolet , 2010 SCC 24 ...is whether the officers’ powers of inspection were exercised reasonably pursuant to “a continuing regulatory purpose”... [39] The appeal judge in this case concluded that the trial judge’s decision was “based on a finding of predominate purpose, which on the above authorities was the wrong test to apply in the circumstances of a legitimate Fisheries concern”. I agree.

Drawing on both Nolet and Wilcox , the appeal judge identified the salient question in the case as “whether in the context of the powers of inspection conferred on the Fisheries Officer by s. 49(1) of the Fisheries Act , the DFO actions can be construed as an unreasonable search” (para. 26) . In my view this was the legally correct way to frame the issue. ANALYSIS [ 32 ] The onus is upon the person alleging a Charter right to prove the violation of the right on a balance of probabilities. In this

case, the onus is upon Mr. Schmidt to prove on a balance of probabilities that he had a reasonable expectation of privacy in the cab of his truck, as noted at paragraph 30 of Nolet , supra: [30] ...Whether or not an individual has a subjective expectation of privacy, and whether or not that expectation is objectively reasonable, is an assessment to be made having regard to the totality of the circumstances (citations omitted). The onus of proof of such reasonable expectation, to a probability standard, lies on the Charter claimant. [ 33 ] In the case at hand, Mr. Schmidt lead no evidence of his subjective belief.

There is no evidence other than the description of the truck, the area it was located and the activity around it as provided by the Conservation Officer. The officer’s description is of a four door truck, with a set of racks attached to the box of the vehicle to facilitate the loading/unloading of a quad or snowmobile. The location was described as an area where people who are going fishing normally park to access the fishing area on the river by the E.B. Campbell dam. There was no evidence of any gates or signage that would indicate the vehicle was on private property.

The area was easily accessible to the officer and anyone else who wanted to attend. The officer and anyone else who chose to do so, could clearly see into the cab of the vehicle without doing anything more than simply peering inside.

The gun was in plain sight beside the driver’s seat. [ 34 ] All of these factors lead me to find that on a balance of probabilities there was no reasonable expectation of privacy in the cab of the vehicle, and s. 8 of the Charter is not engaged. [ 35 ] In the event I am mistaken and there is an reasonable expectation of privacy in the cab of the vehicle, then I would still find there was no Charter breach in the circumstances. The legislation itself is not being challenged and it clearly authorizes an officer to conduct an inspection of the firearm in the vehicle.

When the officer approached the two individuals, neither being the accused, he first requested to see their fishing licences. He testified he was also planning to do an inspection of the firearm. No mention was made of the firearm nor any action taken toward it until the two individuals opened the truck to look for their licenses. The officer testified, and I accept his evidence, that he was surprised by this and immediately became concerned for his safety.

It was dark outside, he did not know these people, and at that point, he did not know if the firearm was loaded or unloaded. [ 36 ] He immediately advised them he was conducting an inspection of the firearm. He went to the vehicle, opened the driver side door, shone his light on the firearm, opened the action and observed the shell in the chamber and live rounds in the clip.

He removed the firearm, returned to his patrol vehicle and unloaded it. [ 37 ] In all of the circumstances I find that his actions in entering the vehicle and seizing the firearm were exercised reasonably in relation to a continuing regulatory purpose. He was authorized to conduct an inspection pursuant to the provisions of the Act. I find that from the time he first observed the firearm in plain sight in the vehicle, until he removed it from the vehicle he was exercising his authority to conduct an inspection.

His actions involved minimal intrusion into the vehicle and he only removed the firearm once he discovered it was loaded. [ 38 ] There being no violation of s. 8 of the Charter , there is no need to undertake a s. 24(2) analysis. There being no Charter violation, the evidence of the officer concerning his observations of the firearm, the firearm and ammunition and the warned statement of the accused are admitted into evidence on the trial proper. DECISION [ 39 ] I find on all of the evidence the Crown has proven its case beyond a reasonable doubt.

The evidence establishes the firearm was in a vehicle and was loaded. Although the officer did not testify that he was specifically a “Wildlife Officer” within the meaning of The Wildlife Act , this appears to have been accepted by both counsel through their arguments. I note it would be preferable for Crown counsel to outline the duties and responsibilities of the conservation officers and whether they are so designated under the various Acts to enforce those Acts . [ 40 ] Mr.

Schmidt can rely on the defence of due diligence if he can show on a balance of probabilities that he took all reasonable steps to avoid the offending behaviour, or that he had a reasonable belief in a mistaken set of facts which, if true, would render the act or omission innocent. In this case, the only evidence from the accused is through that of his warned statement. His explanation to the

Conservation Officer that it was a mistake and he did not really mean to have a loaded firearm in his vehicle does not afford a defence. [ 41 ] I find Mr. Schmidt guilty of carrying a loaded firearm in a vehicle contrary to s. 40(

a) of The Wildlife Act . ____________________________ I.J. Cardinal, J