Her Majesty the Queen On the Information of R.L. Carlson a peace officer - v. -, 2011 SKPC 182

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 182 Date: December 6, 2011 Ticket: 7283602 Location: Tisdale _____________________________________________________________________________ Between: Her Majesty the Queen On the Information of R.L. Carlson a peace officer - and - Harold Shoemaker Appearing: Ms. L. O’Connor For the Crown Mr. I. Carson For the Defendant DECISION B. MORGAN , J INTRODUCTION: [ 1 ] On September 16, 2010, Mr. Thomas Mord, co-owner of the northeast quarter of

section 29-43-3-W2M, bush land located in the Hudson Bay area of Saskatchewan, saw his neighbour Harold Shoemaker within the confines of that land, carrying a gun. As Mr. Mord had placed “no hunting” signs around the north, east and south boundaries of his land, he contacted the local Saskatchewan

Environment Resource Management (SERM) Office, and Mr. Shoemaker was issued a summons for violating s. 41 of The Wildlife Act, 1998. That

section makes it an offence to hunt on land without the consent of the owner, if “no hunting”, or similar signs, are properly posted on the land. [ 2 ] Mr. Shoemaker’s defence, in brief, is threefold: 1) the west boundary was not posted with “no hunting” signs; 2) Mr. Shoemaker had no intention to hunt on that land, claiming he was only circling some fallen trees in the area; and 3) as the west boundary of Mr. Mord’s land was not fenced or otherwise properly marked as a boundary, there is some question as to whether or not in fact Mr. Shoemaker was on Mr.

Mord’s land. [ 3 ] I will deal with these issues separately. However, in order to put the matter in context, it is worthwhile to set out the overall circumstances. [ 4 ] Mr. Mord’s land is cut off partially on the south and west sides by the Etomami River. That river flows through the west boundary approximately halfway up that west boundary, and exits approximately in the middle of the south boundary of the land. The area where Mr. Shoemaker was seen was to the north of the river, just inside the west boundary; all of that land is in bush. [ 5 ] Mr. Mord acknowledges that he did not post the west boundary.

What he had done was to mark the boundary with surveyor’s flagging, using a global positioning system, having started at the northwest corner of his land, proceeding in a southerly direction, towards the river. He testified that he placed that flagging on trees approximately 50 or 75 feet apart, such that, in his words, “you can see one from the other”. [ 6 ] Mr. Shoemaker is Mr. Mord’s neighbour immediately to the north. He had come into the area by following the east side of the river from his land, which meant he would be walking westward along the southwest quarter of

section 32, and then, continuing to follow the river, come into the northwest quarter of

section 29, owned by Hugh and Katherine Mackie, and eventually ended up in the northeast quarter, being Mr. Mord’s land. All of that land is comprised of heavy bush. The Mackie land actually includes that part of the northeast corner of

section 29 that is west of the river, but any land north of the river on the northeast quarter

section of 29 that is east of the western boundary of the quarter

section is the land of Tom and Kathy Mord. The area where Mr. Shoemaker was seen was clearly north of the river. However, one of the defence arguments, as mentioned earlier, is that Mr. Shoemaker may not have in fact been east of that western boundary. [ 7 ] What Mr. Shoemaker testified had occurred was that, as he was proceeding east, he did notice some survey flagging.

However, he thought that this flagging might have been left by a hunter, it being, in his experience, common practice for a hunter who has shot game to mark the route from that game in the bush so that, when the hunter goes to acquire equipment to haul the game out, he or she is able to find the location of the kill site. Thus, he did not think this flagging indicated the western boundary of Mr.

Mord’s land. [ 8 ] Against that background, I will deal with the defence arguments. 1) The west boundary was not posted with “no hunting” signs. [ 9 ] I accept that there were no signs posted on the west boundary, and that is the boundary through which Mr. Shoemaker entered the land. [ 10 ] However, it is equally clear that Mr. Shoemaker knew that Mr. Mord had “no hunting” signs up on other sides of this land, and he acknowledged as well that he did not have permission to hunt on the land immediately to the west of Mr. Mord’s land, from which he had entered. That land was not posted either.

[ 11 ] In the case of R. v. Fiala and Routley , 2004 SKPC 85 , Judge Halderman of this Court noted as follows at paragraph 32: Section 41(1) does not include in specific terms a provision making it an offence for a person to hunt on land that he knows is posted - that is to say, the

section sets out a standard for what might be termed “constructive notice”. I am firmly of the opinion, however, that in the context of a regulatory statute such as The Wildlife Act , personal knowledge that hunting is prohibited except with prior permission must be read into and caught by the provisions of section 41(1) and (2) ... to hold otherwise would allow a hunter who is personally aware of a landowner’s restrictions to defeat the clear purpose of

section 41 of the Act - that is, to permit a landowner to control access to and use of his private property, and to prevent damage to fences, gates and crops. [ 12 ] I adopt the reasoning of Judge Halderman and hold that, in this case, as Mr. Shoemaker had actual knowledge that Mr. Mord’s land was closed to hunters, knowing that Mr. Mord had posted “no hunting” signs , the fact that Mr. Mord did not post the west boundary of the land does not afford a defence to Mr. Shoemaker. [ 13 ] I also find support for this

interpretation in ss. (6) of s. 41, which states that if an owner has: ... not erected or placed signs along the boundaries of his or her land, that fact alone: (

a) is not to be deemed to imply consent by him or her to entry on the land; or (

b) does not imply a right of access to his or her land for the purpose of hunting. Coupled with ss. (5)(a), which puts the onus on the defendant to prove that he had consent to hunt on the land, it seems that the clear statutory scheme is as set out in the above-noted decision. If one has actual knowledge that hunting is not allowed on that land, as Mr. Shoemaker did, it cannot be that a failure by the landowner to post one portion of that land would afford a defence in these circumstances. 2) Mr.

Shoemaker had no intention to hunt on that land, claiming he was only circling some fallen trees in that area. [ 14 ] Mr. Shoemaker was walking through Mr. Mord’s land with a rifle in his hand. His argument is that he had no intention to shoot anything there, but he clearly went onto that land with the intention of finding elk, as he had an elk licence. Officer Carlson testified that the season for bull elk had opened the day before. I do not believe Mr. Shoemaker when he states he had no intention of “hunting”, if what he means by that word is shooting .

As well, the definition of “hunting” in The Wildlife Act reads as follows: “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. [ 15 ] Further, s. 30 of the Act states that “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”.

As I do not accept Mr. Shoemaker’s explanation, there is no evidence to the contrary, and this

section is applicable. To be blunt, there would be no reason for Mr. Shoemaker to have a firearm with him in these circumstances if he was not hunting. He had an elk licence, and he had a gun; he was not out only for a leisurely stroll through the woods. Mr. Shoemaker was hunting, and I find he intended to be hunting. 3) As the west boundary of Mr. Mord’s land was not fenced or otherwise properly marked as a boundary, there is a question as to whether or not in fact Mr. Shoemaker was on Mr. Mord’s land.

[ 16 ] I am satisfied, based on the evidence, that Mr. Shoemaker was in fact on Mr. Mord’s land. Mr. Shoemaker had testified that he had no idea that he was on Mr. Mord’s land. He testified he had just gone around a windfall, and was heading north, when Mr. Mord started to yell at him. Mr. Mord had testified that he was sitting on a stump on his land, himself waiting for game, when he saw Mr. Shoemaker traversing his land, and in Mr.

Mord’s opinion, was approximately 100 metres in from the west boundary. [ 17 ] It is clear to me that the flagging would not constitute a precise line, nor would it be precisely on the property line. However, I was impressed by Mr. Mord’s evidence as to how he laid out the line, and I am satisfied that any deviation that may have occurred in the methodology he used would be no more than a few metres or so. Although Mr. Shoemaker testified that he did not know he was on Mr. Mord’s land, he did testify that he knew that land was somewhere in the area.

Further, he had, some time prior to the offence date, taken steps to have the northwest corner of Mr. Mord’s land, which would be the southwest corner of his land, surveyed in order to pinpoint that location. Although the land was in bush, and he could not of course have seen that corner from where he was, he clearly is sensitive to the location of land boundaries generally in that area. [ 18 ] I would not conclude that survey flagging tied to trees would clearly define a boundary such that someone not well versed with the area would know he or she had entered another parcel of land.

However, the situation is different with respect to Mr. Shoemaker. He lived directly north of Mr. Mord. He took steps to locate the north end of that west boundary, and although he stated he had no idea that he was on Mr. Mord’s land when he was seen by Mr. Mord, he did state that he didn’t know exactly where Mr. Mord’s land was. Clearly, he knew it was in the area. [ 19 ] The answer for this defence is also found in the Fiala case, at paragraph 24 in which Judge Halderman cites an earlier unpublished decision of Judge Rathgeber, as follows: 24.

In Napady and Herbert , supra , Judge Rathgeber held that: When hunting a hunter must take reasonable steps to determine where he is and that the land is not posted. When crossing a fence line a hunter should be concerned that he has moved onto someone else’s land which may be posted. The obligation to check is his. I agree. [ 20 ] In my view, the situation is somewhat the same here. Although there was no fence line in the bush area, one would not expect there to be one. Mr. Shoemaker had personal knowledge of the terrain that he was on, he knew roughly where Mr.

Mord’s land was, and he took no steps whatsoever to ascertain the location. Having seen the flagging in the trees, he should have been put on notice that this might be an indication of where Mr. Mord’s land started. [ 21 ]

Section 41 of the Act is an offence of strict liability (see R. v. Eckel , 2007 SKPC 78 , @ para. 12). Thus, once the Crown has established the doing of the prohibited act, it is open for the defendant to escape liability by showing that he took all reasonable steps to avoid doing that prohibited act. Here, Mr. Shoemaker took no steps whatsoever to do so; he simply continued walking in the direction that he knew would inevitably take him onto Mr. Mord’s land. I am not satisfied that Mr.

Shoemaker took any steps, let alone reasonable steps, to discharge that obligation placed upon him to know where he was, especially when he was hunting in and around an area in which he knew he might be traversing onto land on which he knew he was not allowed to hunt. [ 22 ] I find the defendant guilty. B. Morgan, J