Ontario (Ministry of Natural Resources and Forestry) v. Marttunen, 2016 ONCJ 469

ONTARIO COURT OF JUSTICE CITATION: Ontario (Ministry of Natural Resources and Forestry) v. Marttunen , 2016 ONCJ 469 DATE: 2016·07·12 COURT FILE No.: Township of Ignace 160008 BETWEEN: THE QUEEN IN RIGHT OF ONTARIO, MINISTRY OF NATURAL RESOURCES AND FORESTRY — AND — ROBERT T. MARTTUNEN Before Justice of the Peace MACKINNON Heard on MAY 10, 2016 Reasons for Judgment released on JULY 12, 2016 S.

Reppard ..................................................................................... counsel for the prosecution The Defendant Robert Marttunen ………………………………... on his own behalf JUSTICE OF THE PEACE MACKINNON: [ 1 ] A trial of this matter was held on May 10, 2016 in Ignace, Ontario. I reserved my decision to today’s date. [ 2 ] This case deals with the

interpretation of Regulation 667/98(Trapping) of the Fish and Wildlife Conservation Act, and its application to the Defendant, a helper trapper. Factual Background [ 3 ] The Crown called two witnesses and entered a number of exhibits. Most of the evidence presented was agreed to by the Defendant. [ 4 ] Conservation Officer Thompson investigated the use of traps by the Defendant on Trapline IG044, which is east of Ignace Ontario and North of Highway 17 in an Unsurveyed Township.

The Defendant agreed during the trial that he was using a Woodstream Oneida Victor Conibear 120 trap and was trapping pine marten between November 21, 2015 and December 9, 2015. The Woodstream Oneida Victor Conibear 120 trap is not certified for trapping pine marten as it does not appear on

Schedule 1 to Regulation 667/98 for this animal. It is also not certified for a fisher. [ 5 ] The Defendant was cooperative with Conservation Officer and showed him the locations of the 26 traps that he had set out. In checking each trap the officer collected 3 pine marten and a fisher. [ 6 ] The reason given by Officer Thompson for the development of

Schedule 1 which changed the type and size of trap that could be used, is that there was international pressure on the trapping industry to provide for more efficient and less cruel methods of trapping. The Officer’s evidence was unclear as to whether there was a substantial difference in the kill time for animals under the new trap regime. [ 7 ] It was agreed by Officer Thompson that Mr. Marttunen was a helper trapper on Trapline IG044 and was not the head trapper. He also recalled that Mr. Marttunen told him that the head trapper had had a stroke and that the Defendant was helping out with the trapline.

Officer Thompson did agree on cross-examination that Mr. Marttunen was not aware of the new trap requirements.

[8] Officer Thompson gave evidence that he made a phone call to the Ontario Fur Managers Association in order to determine ifMr. Marttunen was a member and would have received their magazine which set out the new trap requirements. As this is hearsayevidence, I give no weight to this evidence. [9] Conservation Officer Nutley attended at the home of Mr. Marttunen in Murillo, Ontario. The Defendant was cooperative andadmitted that he did not know that the kind of trap for pine marten had changed. When asked if he remembered Mr. Marttunen pointingout similar traps on his porch, the officer could not recall. Analysis [10] The Defendant is charged with an offence under s.18(1)(

a) of Regulation 667/98 of the Fish and Wildlife Conservation Act,which says: s.18(1)(

a) If a species is listed in Column 2 of

Schedule 1 or in Column 2 of

Schedule 2, a person shall not use a trap for trapping thespecies unless, (

a) the trap that is used is set out in Column 3 of the relevant

Schedule opposite the species; and (

b) the trap is used in accordance with any conditions set out in Column 4 of the relevant

Schedule opposite the species and thetrap. [11] Mr. Marttunen, a helper trapper on Trapline IG044 , was trapping the line between November 21, 2015 and December 9,2015 in the unsurveyed township in the District of Kenora. Mr. Marttunen admitted to Officers Thompson and Nutley, and to the court,that he was trapping pine marten using the Woodstream Oneida Victor Conibear 120 trap. Column 3 in

Schedule 1 to Regulation 667/98does not show this trap as approved or certified for pine marten. I am satisfied beyond a reasonable doubt that the Defendant was notusing a trap certified for pine marten as required by s.18 (1)(a). Issue [12] The Defendant argues that it is the head trapper who is responsible for complying with Regulation 667/98 as a result of s.10of the Regulation which says: s.10 (1) The person assigned a registered trapline area is the head trapper and has all the rights and obligationsassociated with trapping in that area.

(2) The head trapper is responsible for ensuring compliance with the Act and the regulations even though he or she may use helpertrappers to assist in hunting or trapping under his or her licence.

(3) A licence issued to be a helper trapper, (

a) restricts the helper to hunting or trapping on the area for which the head trapper is authorized to hunt or trap; and (

b) limits the helper to assisting the head trapper in hunting or trapping a quantity of furbearing mammals authorized in the headtrapper’s licence. (4) the head trapper and all helper trappers shall not cumulatively exceed the quotas fixed in the licence of the head trapper. [13] Specifically, the issue is whether the Defendant can be convicted of a violation of s.18(1)(

a) of the Regulation whichprohibits the use of non-certified traps, in light of s.10 (2) which sets out the responsibility of the head trapper for compliance with theAct and its Regulations. The Principle of Statutory

Interpretation [14] This case requires an

interpretation of the Fish and Wildlife Conservation Act, and its regulation of trapping in Regulation667/98. [15] In the case of (Re) Rizzo & Rizzo Shoes Ltd. [1998] 1 R.C.S. 41, the Supreme Court of Canada determined the “modern”approach to

interpretation of a statute by citing with approval the principle set out by Elmer Driedger in his text Construction of Statutes (2nd.ed. 1983): Today there is only one principle or approach, the words of

an Act are to be read in their entire context and in their grammatical andordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament. The Object of the Act [16] The Fish and Wildlife Conservation Act (FWCA) does not set out its overall purpose except by way of its name. [17] The case of Ontario Federation of Anglers and Hunters v. The Queen involved a question of thejurisdiction of the Minister of Natural Resources in cancelling the spring bear hunt.

Abella J.A. speaking for the Court of Appeal said thefollowing: The Fish and Wildlife Conservation Act received Royal Assent on December 18, 1997 and was proclaimed on January 1, 1999. It wasenacted to provide a scheme of wildlife conservation and management including the establishment of ethical, humane and responsiblehunting practices. The Act assigns to the government the responsibility for balancing the interests of people against the welfare of

animals to determine what constitutes humane treatment or the unnecessary suffering of animals. Concerns regarding animal welfare, including humane and ethical hunting practices, fall squarely with the policy and objectives of the Fish and Wildlife Conservation Act. This is accomplished by the Ministry of Natural Resources regulating the conduct of hunters… [ 18 ] The Act satisfies the same concerns and has the same objective by regulating the activities of trappers, who are licenced by the Ministry of Natural Resources and Forestry to trap furbearing mammals in the province.

This is particularly true related to the type of trap which is certified to reduce the suffering of a trapped animal, and to meet international standards for doing so. The Scheme of the Act [ 19 ] In regard to trapping, the activity is regulated by the issuance of licences by the MNRF. The MNRF identifies a trapping area and assigns it to a head trapper by way of a licence. The licence restricts the trapper to a particular geographic area and quota. [ 20 ] In this way, the province is able to control the population levels of each type of animal, and reduce the number when the species level is a concern.

The restriction to a particular geographic area, eliminates disputes and competition for territory between trappers. [ 21 ] Pursuant to s.7 of the Ministry of Natural Resources Act , the enforcement of the rules of trapping including territory and quotas, falls to Conservation Officers employed by MNRF. [ 22 ] The head trapper can use helper trappers to assist him/her to meet the quota. Each helper must be licenced under the Act, but is only allowed to trap within the confines of the quota and territory of the head trapper.

Interpreting the Trapping Regulations [ 23 ] The Fish and Wildlife Conservation Act in s.6(1) provides that; 6. (1) except under the authority of a licence and in accordance with the regulations, a person shall not hunt or trap, …

d) a furbearing mammal; [ 24 ] Regulation 667/98 in s.18 (1) (

a) provides that, “a person” shall not use a trap unless it is certified. Considering the Act and Regulation 667/98, and in light of the purpose of the Act, no person in Ontario can trap a furbearing mammal unless that person is a trapper, and is licenced under the FWCA and uses a certified trap. [ 25 ] Mr. Marttunen has argued that he is excluded from this requirement because of s.10 (2) of Regulation 667/98 which sets out, “ The head trapper is responsible for ensuring compliance with the Act and the regulations…”. [ 26 ] Does the relationship between the head trapper and the helper trapper lend itself to this

interpretation? [ 27 ] I have considered whether the helper trapper is in a position akin to that of an apprentice to the head trapper, such that all responsibility for the actions of a helper would flow to the head trapper. [ 28 ] There is no reference to an educational or training component to the head trapper’s responsibilities vis- a- vis the helper trapper or that the head trapper must keep the helper informed of changes to the trapping requirements.

The Regulation does not state that the head trapper is directly responsible for the actions of the helper, but only that the head trapper is responsible for the operation of the trapline.

In s.10(3), there is no statement that the helper trapper is required to follow the directions of the head trapper. [ 29 ] While the regulation does give authority to the head trapper to monitor and ensure that the helper complies with the Act and its regulations, by doing so it is my opinion that it reinforces the view of the helper trapper as separate and independently required to comply with the regulations. [ 30 ] Does the wording of the

section support an

interpretation that the helper trapper is excluded from responsibility? [ 31 ] The words “exclusion” or “exemption” are not used. In s. 10(2) the head trapper is responsible for ensuring compliance, but there is no term which suggests that the head trapper can cancel the licence of a helper who does not comply, or that he can take any other action against a non-complying helper. [ 32 ] The helper trapper is required to have his own licence under the Fish and Wildlife Act . He/she is directly responsible to the Ministry for the use of the licence.

It seems that a licence would not be necessary if there was no responsibility. [ 33 ] Requiring the helper trapper to comply with the trapping requirements is harmonious with the intention of the Act to ensure that the trapping industry is conducted with consistent standards and with ethical and humane controls.

Excluding one group of trappers from these requirements would not provide for the objectives of the Act and Regulation to be met. [ 34 ] In addition, I note that the Provincial Offences Act in s.47(3) provides as follows: Burden of Proving Exception, etc. s.47(3) The burden of proving that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exception, exemption or qualification does not operate in favour of the defendant, whether or not it is set out in the information. [ 35 ] I am not satisfied that the Defendant has met the onus of showing that an exception or exemption from the requirement to

comply with s.18(1)(

a) of Regulation 667/98, has been prescribed by law in his favour. Decision [ 36 ] The charge faced by the Defendant is a strict liability offence in a public welfare statute. This means that, once the elements of the offence have been proven, the Defendant can avoid a conviction only by showing due diligence or another defence. [ 37 ] The elements of the offence under s.18(1)(

a) have been proven beyond a reasonable doubt. [ 38 ] The Defendant has not submitted any evidence on the issue of due diligence; that is, that he made every effort to inform himself of the type of traps required prior to putting the traps out. [ 39 ] As a result, the Defendant is convicted of the offence under s.18(1)(

a) of Regulation 667/98 of the Fish and Wildlife Conservation Act . [ 40 ] I will hear now from the parties in regard to the issues related to sentence. Released: July 12, 2016 Signed: Justice of the Peace D. MacKinnon