Docket: CACR2020 Kerry Ukrainetz Appellant - v. -, 2012 SKCA 29

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 29 Date: 20120124 Between: Docket: CACR2020 Kerry Ukrainetz Appellant - and - Her Majesty the Queen Respondent Coram: Jackson, Richards and Ottenbreit JJ.A. Counsel: Kerry Ukrainetz appearing on his own behalf Anthony Gerein for the Crown Appeal:

From: 2011 SKQB 154 Heard: January 24, 2012 Disposition: Leave to appeal denied (orally) Written Reasons: March 8, 2012 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Ottenbreit Richards J.A. I. Introduction [ 1 ] Mr. Ukrainetz was convicted in Provincial Court of possessing wildlife without a licence contrary to s. 33(2) of The Wildlife Act, 1998 , S.S. 1998, c. W-13.12 (the “ Act ”) (see 2009 SKPC 144 ). He then appealed unsuccessfully to the Court of Queen’s Bench (see 2011 SKQB 154 ).

On January 24, 2012, we denied his application for leave to appeal to this Court and provided a point-by-point oral explanation for our decision. Mr. Ukrainetz now seeks a written version of the reasons for that ruling. This is our response to his request. II. Brief Background [ 2 ] Mr. Ukrainetz works as an outfitter. His base is a lodge situated north of Pinehouse Lake. In October of 2005, he provided hunting services to David Kjelstrup of North Dakota. [ 3 ] The evidence revealed that Mr. Kjelstrup shot a moose and tagged it properly. The other two members of Mr.

Kjelstrup’s party (his son and son-in-law) were not as successful. As a result, Mr. Ukrainetz asked Mr. Kjelstrup if he would like another moose carcass. [ 4 ] Wilson McKenzie, a member of the Lac La Ronge Indian Band, testified that, in October of 2005, he had shot three moose – a cow, a calf and a bull – for food. He said Mr. Ukrainetz took the bull from him. [ 5 ] The trial judge concluded that the bull had been given to Mr. Kjelstrup. According to Mr. Kjelstrup, he and Mr. Ukrainetz travelled to a boat launch where Mr. Kjelstrup saw moose carcasses. Mr.

Ukrainetz later transferred a quartered carcass from his truck to Mr. Kjelstrup’s truck. Mr. Kjelstrup then put his son’s tag on the carcass. [ 6 ] Mr. Ukrainetz was charged with four offences: (

a) possession of wildlife without a licence, contrary to s. 33(2) of the Act ; (

b) accepting or having in his possession wildlife taken by an Indian for food, contrary to s. 34(2) of the Act ; (

c) trafficking in wildlife, contrary to s. 44 of the Act ; and (

d) having a big game carcass in his possession without a seal attached, contrary to s. 46(1.1) of The Wildlife Regulations, 1981 , R.S.S., c. W-13.1, Reg. 1 (the “ Regulations ”). [ 7 ] Robinson P.C.J. convicted Mr. Ukrainetz on charge (a), acquitted him on charges (

b) and (c), and declined to enter a conviction on charge (

d) in light of the rule against multiple convictions. [ 8 ] As indicated, Mr. Ukrainetz appealed his conviction to the Court of Queen’s Bench. Rothery J. dismissed his appeal. III. The Proceedings in this Court [ 9 ] The proceedings launched by Mr. Ukrainetz in this Court were taken pursuant to s. 839 of the Criminal Code .

Section 839 does not give an open-ended right of appeal. Rather, as was explained at the oral hearing, Mr. Ukrainetz was entitled to appeal only with leave of the Court and only with respect to questions of law alone.

[ 10 ] Two considerations are generally used to inform the decision of whether leave to appeal should be granted: the significance of the question of law in issue and the merits of the proposed appeal. [ 11 ] Mr. Ukrainetz raised a number of points in his submissions. Many of them did not involve questions of law alone. Nonetheless, we dealt briefly with each of them. [ 12 ] First , Mr. Ukrainetz said he was unlawfully detained at the airport, in breach of his Charter rights, by Mr. Robert Senik, a conservation officer. There was no merit in this submission. On the basis of the evidence adduced at trial, Mr.

Ukrainetz had a voluntary conversation with the officer. There was no factual basis for a Charter argument. [ 13 ] Second , Mr. Ukrainetz suggested Mr. Senik commenced “an international investigation outside of his jurisdiction.” This concern apparently related to conversations Mr. Senik had with Mr. Kjelstrup and, as well, to a request made by Mr. Senik wherein he asked the United States Fish and Wildlife Service to take a statement from Mr. Kjelstrup. Mr. Ukrainetz did not attempt to relate any of these facts to a known legal principle or statutory provision.

We were unable to see any merit in his position. [ 14 ] Third , Mr. Ukrainetz took issue with the procedural dimensions of the order made to allow Mr. Kjelstrup to give his evidence by telephone. The Crown’s application in this regard was dealt with by way of a conference call involving the prosecutor, Mr. Ukrainetz’s then counsel and Tucker P.C.J. Mr. Ukrainetz was not on the call and he said in this Court that this had amounted to a violation of his rights. This argument had no merit. Mr. Ukrainetz was charged with a

summary conviction offence. By virtue of s. 800(1) of the Criminal Code , he was not required to be personally involved in the conference call. There was no suggestion here that Mr. Ukrainetz’s counsel acted without Mr. Ukrainetz’s knowledge or instructions. As a result, there was no arguable merit in this line of argument. [ 15 ] Fourth , Mr. Ukrainetz contested the substance of the order to allow telephone evidence. There was no merit to this line of concern either. The Crown applied, in advance of the trial, for an order pursuant to s. 714.4 of the Criminal Code to permit Mr. Kjelstrup to provide his evidence by way of a telephone conference link to his home in the United States.

Section 714.4 allows for evidence by way of telephone if that approach is “appropriate, considering all of the circumstances.” Tucker P.C.J. carefully took account of all the relevant factors in making his order and Mr. Ukrainetz has raised no basis for taking issue with it. [ 16 ] Fifth , Mr. Ukrainetz said Robinson P.C.J. had erred in allowing witnesses to give “hearsay” evidence. In this regard, Mr. Ukrainetz pointed to the evidence of Mr. Senik. In his evidence in chief, Mr. Senik referred to comments made by Mr. McKenzie in an interview wherein Mr. McKenzie had told Mr. Senik that Mr.

Ukrainetz had taken a moose from him. Hearsay evidence, of course, concerns the statements of a third party which are tendered for the proof of their contents. That is not what happened in relation to Mr. Senik’s evidence. The prosecutor was merely inviting Mr. Senik to provide context or narrative about what prompted the investigation into Mr. Ukrainetz’s activity. The testimony in question was not presented for the truth of its contents and, as a result, was not hearsay. Mr. Ukrainetz also pointed to aspects of Mr. McKenzie’s evidence as being hearsay. He was mistaken on this point.

There might have been an issue at a point or two with respect to whether the prosecutor was leading Mr. McKenzie in his testimony but no hearsay evidence was improperly admitted. [ 17 ] Sixth , Mr. Ukrainetz said Mr. McKenzie was not a credible witness. (I think here that Mr. Ukrainetz was primarily referring to the reliability of Mr. McKenzie’s evidence.) There was no merit to this argument either. Robinson P.C.J. was very alert to the difficulties in Mr. McKenzie’s evidence and, among other things, expressly took note of the personal feelings between Mr. Ukrainetz and Mr.

McKenzie and of the possible impact those findings might have had on Mr. McKenzie’s evidence. Significantly, Robinson P.C.J. acquitted Mr. Ukrainetz on the charges of possessing wildlife taken by an Indian for food on the express basis of his doubts about Mr. McKenzie’s evidence on matters relevant to that charge. [ 18 ] Seventh , Mr. Ukrainetz said the conservation officer, Mr. Senik, knew Mr. Ukrainetz was married to a status Indian and, therefore, ought to have known Mr. Ukrainetz was exempt from purchasing conventional licences and tags. Mr.

Ukrainetz said he had been issued Treaty Indian Assist Permits for each of the past ten years. This argument, as we understood it, was to the effect that, because his wife is a status Indian, Mr. Ukrainetz was somehow immune from being convicted under s. 33 of the Act . [ 19 ] Sections 34 and 35 of the Act are both relevant here. Section 34(3) , on its face, says a non-Indian can possess wildlife taken for food by an Indian but only if the Indian in question is his or her close relative. Section 34(3) states: 34(3) A non-Indian may possess wildlife that has been taken for food as permitted pursuant to

section 12 of the agreement by an Indian

who is a father, mother, grandfather, grandmother, brother, sister, child, spouse or common-law spouse of the non-Indian. [ 20 ]

Section 35, on its face, contemplates permits being issued to non-Indians to allow them to provide aid or assistance in hunting to Indians to whom they are closely related. It says this: 35(1) Subject to subsections (2) and (3), no person other than an Indian may assist, aid or hunt with any Indian hunting wildlife for food as permitted pursuant to

section 12 of the agreement.

(2) The minister may issue to a non-Indian a licence to assist or aid, or a licence to hunt with, an Indian who: (

a) is a father, mother, grandfather, grandmother, brother, sister, child, spouse or common-law spouse of the non-Indian; and (

b) is hunting wildlife for food as permitted pursuant to

section 12 of the agreement.

(3) Where a licence to hunt is issued to a non-Indian pursuant to subsection (2), the non-Indian may only hunt in accordance with this Part and the regulations and the terms and conditions of any licence issued to the non-Indian. [ 21 ] Mr. Ukrainetz suggested in his brief that he and his family were entitled to possess wild meat year round without a conventional licence and tag. This, presumably, was because his wife is a status Indian. The problem with this line of argument was two-fold: (

a) it was not advanced in either the Provincial Court or the Court of Queen’s Bench and, as is the practice of this Court, we were reluctant to entertain constitutional-type arguments if they have not been canvassed in the courts below, and (

b) at least as presented, the arguments were hard to square with the terms of ss. 34(3) and 35(3) of the Act and the facts adduced at trial, i.e. Mr. McKenzie, who shot the moose in issue here, was not Mr. Ukrainetz’s father, mother, grandfather, grandmother, brother, sister, child, spouse or common-law spouse. [ 22 ] Therefore, at least as presented to us, we saw no merit in Mr. McKenzie’s submission. It might be conceivable, I suppose, that an argument more clearly or thoughtfully rooted in Indian hunting rights might have more substance.

But, we could not even have begun to pass on this question one way or the other. If such an argument does exist, it was not developed for our benefit. [ 23 ] Eighth , Mr. Ukrainetz argued that the prosecution against him was commenced outside of the two-year limitation period stipulated in s. 70 of the Act . He based his submission on the fact that, in January of 2008, the Crown had apparently offered to “withdraw” charges (a), (

c) and (d), described above, if Mr. Ukrainetz pled guilty to charge (b). There was no merit in this argument. The offence in issue here was committed in October of 2005. The charges were laid on June 27, 2007. This satisfied s. 70 of the Act . The fact that a plea agreement was offered by the Crown in 2008 is not relevant to the operation of s. 70 . IV. Conclusion [ 24 ] In the result, we did not see enough merit in Mr. Ukrainetz’s arguments to warrant granting him leave to appeal. We said this assuming, solely for the purpose of analysis, that those arguments involved questions of law alone.