Docket: CACR2026 Jason Cody Marsland Appellant - v. -, 2012 SKCA 47

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 47 Date: 20120425 Between: Docket: CACR2026 Jason Cody Marsland Appellant - and - Her Majesty the Queen ( Canada ) Respondent Her Majesty the Queen ( Saskatchewan ) Respondent Coram: Smith, Ottenbreit and Caldwell JJ.A. Counsel: Lyle Bouvier and Dallas Lommer for the Appellant

Douglas Curliss for the Federal Crown Anthony Gerein for the Provincial Crown Appeal: From: 2011 SKQB 207 Heard: March 22, 2012 Disposition: Conviction appeal dismissed Sentence appeal allowed in part Written Reasons: April 25, 2012 By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Madam Justice Smith The Honourable Mr. Justice Caldwell Ottenbreit J.A. I. Introduction [ 1 ] The appellant, Jason Cody Marsland (“Mr. Marsland”), applies for leave to appeal and appeals the convictions that on September 27, 2005 he: (

i) transported white-tailed deer without a valid permit from Alberta to Saskatchewan contrary to s. 6(3) of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act , S.C. 1992, c. 52, as amended (“ WAPPRIITA ”); (ii) knowingly possessed white-tailed deer that had been transported in contravention of s. 8 (

a) of WAPPRIITA ; and (iii) committed the offence of importing white-tailed deer/wildlife without a permit contrary to s. 31(1)(

b) of The Wildlife Act , S.S. 1998, c. W-13.12 (the “Wildlife Act” ). [ 2 ] Mr. Marsland was originally acquitted by the Provincial Court judge of all charges. The Crown appealed to the Court of Queen’s Bench, sitting as a

summary conviction appeal court, where the acquittals were set aside and convictions against Mr. Marsland were entered. Mr. Marsland now appeals these convictions and, as well, appeals the sentence imposed by the

summary conviction appeal court which consisted of one dollar for the Wildlife Act conviction and a total of $5,000 for the two convictions under WAPPRIITA . II. Facts and Background [ 3 ] Mr. Marsland operated a deer farming ranch near Cochrane, Alberta and raised and sold deer to hunt farms. On September 27, 2005 Mr. Marsland was transporting five white-tailed deer from his ranch to Carlin Nordstrom’s game farm located on Poundmaker Cree First Nation lands south of Battleford, Saskatchewan. The deer were domestic game farm animals born and raised on Mr. Marsland’s farm. [ 4 ] While transporting the deer to Mr.

Nordstrom’s game farm, Mr. Marsland was stopped south of Battleford by Saskatchewan conservation officers. At the time he was stopped, he was in possession of a Canadian Food Inspection Agency (“CFIA”) export permit issued for the purpose of transporting the deer out of the Province of Alberta. He was also in possession of an import permit issued by the Poundmaker Cree Nation Band Council. He was not in possession of an import permit issued pursuant to the Wildlife Act or to WAPPRIITA . [ 5 ] After stopping Mr. Marsland, the conservation officers photographed the deer and requested he return them to Alberta. Mr.

Marsland refused to return the deer. The officers issued Mr. Marsland a

summary offence ticket for importing white-tailed deer without an import permit contrary to s. 31(1)(

b) of the Wildlife Act and Mr. Marsland continued on and delivered the deer to Mr. Nordstrom’s game farm. Sometime later, the federal charges under WAPPRIITA were laid. [ 6 ] Mr. Nordstrom was authorized by the Poundmaker Cree Nation Band Council to operate an outfitting and game farm on the reserve lands. It was wholly located within the boundaries of the Poundmaker Cree Nation. Mr. Nordstrom did not, however, have a licence to operate his game farm from the Province of Saskatchewan because his hunt farm was on a First Nation.

[ 7 ] At the time the conservation officers stopped Mr. Marsland, they were aware of a Saskatchewan Environment Resource Management Department meeting some two weeks earlier at which senior members of the Department had decided to start laying charges against individuals who, without an import permit, imported game farm deer into Saskatchewan destined for game farms on First Nations. Notice of this policy change was not communicated to Mr. Nordstrom or to Mr. Marsland. [ 8 ] Mr. Marsland testified at trial that he was familiar with game farm regulations, both at the Alberta provincial level and the federal level.

As well, he had read and was familiar with a policy document prepared by Saskatchewan Environment called the General Protocols for Importing Game Farm Animals into Saskatchewan . After reviewing the provincial protocols for importation, he believed that the protocols did not apply to game farms on reserve land. He testified that he believed he did not need an import permit pursuant to the Wildlife Act because he had an import permit issued by Poundmaker Cree Nation. Mr. Marsland was aware that Mr.

Nordstrom’s game farm was not provincially licenced and as a result he believed that he could not have obtained an import permit from the Province to import the deer to Mr. Nordstrom’s farm. [ 9 ] Sometime prior to transporting the deer to Saskatchewan, Mr. Marsland, during a visit with a friend of his who was a lawyer, discussed the requirements for importing deer to Poundmaker Cree Nation. Mr. Marsland had shown his friend the Poundmaker Cree Nation import permit and received advice from him that the First Nation was exercising its right to self-government and that the Poundmaker Bylaws applied. Mr.

Marsland had imported game farm animals to Mr. Nordstrom’s hunt farm without a Saskatchewan import permit a number of times in the past without being stopped by conservation officers. III. The decision of the trial judge [ 10 ] The trial judge reviewed the relevant sections of WAPPRIITA and the Wildlife Act and Regulations passed thereunder as well as The Diseases of Animals Act , R.S.S. 1978, c. D-30 and its Regulations and The Animal Products Act , R.S.S. 1978 (Supp.), c.

A-20.2 and its Regulations . [ 11 ] The trial judge observed that although s. 6(3) of WAPPRIITA required a federal importation permit, s. 11 of the Regulations thereto set out an exception of that requirement where all required provincial permits were obtained. He reviewed s. 31(1) of the Wildlife Act and the definition of wildlife as defined in s. 2 of that Act .

The trial judge determined that the deer were “wildlife” under the Wildlife Act, but for the purposes of the case they were domestic game farm animals and thus covered by The Animal Products Act and its attendant The Domestic Game Farm Animal Regulations , R.R.S., c. A-20.2, Reg. 10. Sections 15(1) and 2(

j) of those Regulations required an import permit under the Wildlife Act , but he determined that the Wildlife Act did not apply to domestic game farm animals and those Regulations excluded the operation of the Wildlife Act . [ 12 ] Additionally, he found that neither the Wildlife Act nor any Regulations passed pursuant to it contemplate the importation of domestic game farm animals onto an unlicenced game farm and, therefore, because Mr. Nordstrom’s farm was unlicenced, Mr. Marsland could not have obtained an import permit for the five deer under the Wildlife Act .

Because an import permit could not be obtained under the Wildlife Act and compliance was impossible, he determined Mr. Marsland was not guilty under s. 31(1)(

b) of the Wildlife Act for failing to obtain a permit which was not obtainable. He determined that because Mr. Marsland had not violated the Wildlife Act, he therefore did not violate WAPPRIITA . [ 13 ] The trial judge found alternatively that Mr. Marsland had exercised due diligence in determining what import permits were required and in attempting to meet any obligations under the law for a number of reasons. He observed that Mr. Marsland: (

i) held a transport authorization permit from CFIA and a Poundmaker Band import permit; (ii) believed that no provincial permit was available in Saskatchewan for importing domestic game farm animals onto a First Nations reserve; (iii) had relied on his own past experience that no permit was available; and (iv) had relied on the fact that federal officials were aware of his importation practices and he had not been charged. [ 14 ] The trial judge acquitted Mr. Marsland of all charges. IV. The decision of the

summary conviction appeal court [ 15 ] The

summary conviction appeal judge set aside the decision of the trial judge and entered convictions on all charges. She found that the deer met the definition of wildlife in the Wildlife Act and the provisions of The Animal Products Act and its attendant Domestic Game Farm Animal Regulations did not exclude the requirement for an import permit pursuant to the Wildlife Act . The substance of her

decision is found at paras. 45 and 46: 45 It is clear from a review of the Berg decision that the primary purpose of The Wildlife Act is to protect wildlife and that it applies to anyone, anywhere, who wants to import wildlife into Saskatchewan . I take from the Berg decision that every person must obtain a permit before they can import any species of wildlife into the province, regardless of where they live, or what their occupation. 46 Again, with respect to the learned trial judge, the accused did not have the import license he was required to have.

He was required to have a provincial import license under the provisions of The Wildlife Act . Although I accept the learned trial judge's finding that it was not possible for the accused to obtain such a license because Poundmaker Cree Nation could not obtain a provincial license for its hunt farm, this does not excuse the accused from the provisions of The Wildlife Act . This violation of The Wildlife Act , leads to the violation under WAPPRIITA . The accused is guilty under WAPPRIITA if he had no provincial import license as required by The Wildlife Act . [ 16 ] The

summary conviction appeal judge also found after reviewing part of the transcript that the defence of due diligence had not been established. She determined that Mr. Marsland’s inquiries with the lawyer as to the propriety and legality of his actions were insufficient. The

summary conviction appeal judge also found that there was no defence of officially induced error. She found that there was very little evidence that Mr. Marsland had made efforts to obtain information as regards his legal responsibilities for importation of deer and that the fact the officials allowed him in the past to import deer on previous occasions could not be said to amount to officially induced error. [ 17 ] Neither the Federal Crown nor the Provincial Crown took a position on sentence before the

summary conviction appeal court. With respect to the violation of the Wildlife Act, the

summary conviction appeal judge imposed a fine of one dollar. She believed that she was required by the relevant penalty section, s. 22(2) (b)(i), of WAPPRIITA to impose a minimum fine of no less than $5,000. With respect to the violations of s. 6(3) and s. 8 (

a) of WAPPRIITA, she imposed a fine of $5,000 for both convictions together. V. Position of the parties [ 18 ] Both the Federal Crown and the Provincial Crown argue that the

summary conviction appeal judge was correct in her analysis and applied the proper standard of review. [ 19 ] Mr. Marsland argues that the

summary conviction appeal judge erred by failing to consider: (

i) the defence of honest and reasonable but mistaken belief in facts; (ii) that Mr. Marsland had made out his defence of officially induced error; and (iii) that Mr. Marsland had established a defence of due diligence. VI. Analysis [ 20 ] This appeal is brought pursuant to s. 839 of the Criminal Code . This provision makes the right of appeal contingent on the Court granting leave and the appeal involving a question of law. Mr.

Marsland has raised several questions of law. [ 21 ] I start by turning to the relevant legislation which is as follows: WAPPRIITA 6(3) Subject to the regulations, no person shall, except under and in accordance with a permit issued pursuant to subsection 10(1), transport from one province to another province any animal or plant, or any part or derivative of an animal or plant. … 8 Subject to the regulations, no person shall knowingly possess an animal or plant, or any part or derivative of an animal or plant, (

a) that has been imported or transported in contravention of this Act; (

b) for the purpose of transporting it from one province to another province in contravention of this Act or exporting it from Canada in contravention of this Act; or (

c) for the purpose of distributing or offering to distribute it if the animal or plant, or the animal or plant from which the part or derivative comes, is listed in Appendix I to the Convention. …

(1) The Minister may, on application and on such terms and conditions as the Minister thinks fit, issue a permit authorizing the importation, exportation or interprovincial transportation of an animal or plant, or any part or derivative of an animal or plant. [ 22 ] WAPPRIITA Regulations ( SOR/96-263 , passed pursuant to s. 21(1) of WAPPRIITA) : 10 For the purposes of subsection 6(3) of the Act and in respect of a province into which an animal or plant is to be transported, (a) “animal” means any specimen, whether living or dead, of any wild species of the animal kingdom (kingdom Animalia ) the transportation of which into that province is regulated or prohibited by the province, and includes any egg, sperm, tissue culture or embryo of any such animal; and (b) “plant” means any specimen, whether living or dead, of any wild species of the plant kingdom (kingdom Plantae ) the transportation of which into that province is regulated or prohibited by the province, and includes any seed, spore, pollen or tissue culture of any such plant. 11 An animal or plant, or any part or derivative of an animal or plant, is exempted from the operation of subsection 6(3) of the Act where all required provincial permits have been obtained. [ 23 ] The Wildlife Act : 31(1) Subject to the regulations, no person shall, without having first obtained an export or import licence issued pursuant to this Act or the regulations: (

a) export or cause to be exported from Saskatchewan any wildlife; or (

b) import, release or introduce into Saskatchewan any wildlife.

(2) No person shall ship or transport out of the province any wildlife without first paying the royalties prescribed in the regulations. 32 No person shall take into or keep in captivity or wilfully destroy or disturb any wildlife, or the eggs or nests of any bird protected pursuant to this Part or the regulations or pursuant to the Migratory Birds Convention Act, 1994 (Canada) or the regulations made pursuant to that Act without the written permission of the director or without a licence to do so. [ 24 ] The Captive Wildlife Regulations , R.R.S., c.

W-13.1, Reg. 13 (pursuant to the Wildlife Act) : 13(1) Any person importing or exporting wildlife or parts of wildlife shall obtain an import or export licence, as the case requires, pursuant to

section 30 of the Act. [ 25 ] The Domestic Game Farm Animal Regulations (pursuant to The Animal Products Act ): 2 In these regulations: (j) “import licence” means an import licence issued pursuant to The Wildlife Act, 1997 ; … 9 No person shall obtain a domestic game farm animal or a big game animal unless: (

b) the animal is imported in accordance with these regulations. …

15(1) No person, without obtaining an import licence and complying with any import restrictions or protocols imposed by the ministerpursuant to The Diseases of Animals Act and any regulations made pursuant to that Act, shall import any of the following intoSaskatchewan: (

a) live domestic game farm animals; (

b) domestic game farm animal semen; (

c) domestic game farm animal embryos. … [26] The arguments of Mr. Marsland before us appear to concede that the Wildlife Act and the requirement therein to obtain an importpermit applied to him in this case. However, there is some merit in reviewing this preliminary issue. [27] Both the

summary conviction appeal judge and the trial judge determined that the true intent and purpose of the Wildlife Act is toprotect wildlife, regulate hunting and promote the conservation and management of wildlife within the Province. Both the trial judgeand the

summary conviction appeal judge determined that the deer fit within the definition of wildlife under the Wildlife Act. There isnothing in the Wildlife Act and its Regulations which excludes game farm animals from the definition of wildlife as it relates to therequirement under s. 31(1) to obtain an import permit. Everyone is therefore required by the Wildlife Act to have an import permit tobring “wildlife” as defined by that Act into the Province unless excepted by that Act.

The fact that The Domestic Game Farm AnimalRegulations may also apply to that wildlife does not mean those Regulations can exclude the operation of the statutory permit provisionin s. 31(1) of the Wildlife Act. [28] Admittedly, the published policy of Saskatchewan Environment, the General Protocols for Importing Game Farm Animals intoSaskatchewan, upon which Mr. Marsland relied is ambiguous.

On page 6 thereof it clearly states that an import permit is required forthe importation of game farm animals yet in paragraph 1.8 it also states that the farm in Saskatchewan for which the animals are destinedmust hold a valid and current domestic game farm licence. Mr. Marsland understandably inferred that he did not need a permit to importto a game farm on a reserve which was permitted by the Province to operate without a licence. However, whether or not Mr. Nordstromneeded or could get a licence to operate his farm under The Animal Products Act, Mr.

Marsland certainly needed a licence to import deerinto Saskatchewan which were caught by the definition of wildlife under the Wildlife Act. [29] That said, I can find no error on the

summary conviction appeal judge’s analysis of whether Mr. Marsland had an obligation toobtain a permit pursuant to the Wildlife Act. [30] These offences are strict liability offences save for s. 8(

a) of WAPPRIITA which requires mens rea. Accordingly, the law allowscertain defences to the charges. Mr. Marsland submits that the

summary conviction appeal judge erred in determining that thosedefences were not established. [31] Mr. Marsland’s first argument is that his belief that the Poundmaker Cree First Nation had the ability to authorize him to importdeer and that they had done so pursuant to a permit issued by the Band was a mistake of fact. This is no mistake of fact. Although theBand did authorize importation, Mr. Marsland was mistaken as to whether the Wildlife Act applied and whether he had a legal obligationto obtain a permit under that Act. This is a mistake of law and is not a defence. See: R. v.

Greenwood (1986), (SKCA), 50 Sask.R. 129 (SKCA). Accordingly, this ground fails. [32] With respect to the defence of officially induced error, we agree with the analysis of the

summary conviction appeal judge. Mr.Marsland’s argument that his past practice of importing deer without a permit, the past lack of any enforcement by the Province in thatrespect, and his reliance on the Poundmaker Cree Nation Bylaws affords him a defence cannot succeed. All of this does not amount toofficially induced error as the law is articulated in Lévis (City) v. Tétreault, 2006 SCC 12, [2006] 1 S.C.R. 420. The relevant pastpractice is that of the provincial officials. However, their failure to enforce the law in the past does not give rise to the defence ofofficially induced error. See: R. v.

Shiner, 2007 NLCA 18, 264 Nfld. & P.E.I.R. 186. [33] Finally, Mr. Marsland argues that his discussions with a lawyer as to whether he needed a permit under the Wildlife Act, his beliefthat the Band permit was sufficient, his belief that he could not have obtained an import permit and his past practice of importing deerwithout a permit, all amount to a defence of due diligence. In R. v. Molis, (SCC), [1980] 2 S.C.R. 356, Lamer J. (as hethen was) at p. 364 had this to say about the availability of the defence of due diligence:

It is clear to me that we are dealing here with an offence that is not to be considered as one of absolute liability and, hence, a defence ofdue diligence is available to an accused. But I hasten to add that the defence of due diligence that was referred to in Sault Ste.Marie isthat of due diligence in relation to the fulfilment of a duty imposed by law and not in relation to the ascertainment of the existence of aprohibition or its

interpretation. [emphasis added] [34] With respect to this argument, we agree with the

summary conviction appeal judge that Mr. Marsland’s legal inquiries wereminimal at best and in any event concerned the existence of the obligation to obtain a permit and its

interpretation and not its fulfillment. The other factors Mr. Marsland cites as contributing to his due diligence are based on the mistake of law dealt with earlier. His actions intotal do not afford him a defence of due diligence. We can see no error in this determination by the

summary conviction appeal judge. [35] Based on the foregoing, I find no error of law made by the

summary conviction appeal court judge. Accordingly, Mr. Marsland’sconviction appeal is dismissed. VII. Sentence Appeal [36] It is acknowledged that the

summary conviction appeal judge, when sentencing Mr. Marsland, mistakenly applied an amendment ofs. 22(2)(b)(

i) of WAPPRIITA which had not been proclaimed and was not in force. She mistakenly believed the legislation imposed aminimum sentence of $5000. The version of s. 22 of WAPPRITTA in force at that time read as follows: 22.

(1) Every person who contravenes a provision of this Act or the regulations (

a) is guilty of an offence punishable on

summary conviction and is liable (

i) in the case of a person that is a corporation, to a fine not exceeding fifty thousand dollars, and (ii) in the case of a person other than a person referred to in subparagraph (i), to a fine not exceeding twenty-five thousand dollars or toimprisonment for a term not exceeding six months, or to both; … [37] Counsel for Mr. Marsland urged this Court to impose a fine of one dollar for convictions under WAPPRITTA because the

summaryconviction appeal judge was inclined to impose a minimum sentence for all offences. It was acknowledged by the Federal Crown thatthe two convictions under WAPPRITTA would be subject to the principles in the well-known case of R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729 because they are essentially for the same act. [38] Several factors are relevant in determining the amount of the fine. We note that although the circumstances of this case did notafford Mr. Marsland a legal defence, there was substantial ambiguity in the Saskatchewan importation protocol mentioned earlier.

Aswell, the import permit enforcement policy change by the Province of Saskatchewan without notice to anyone is relevant. All of thiswarrants this Court imposing a nominal sentence in the circumstances. [39] Accordingly, with respect to s. 8(

a) of WAPPRITTA the charge is stayed pursuant to the principle in Kienapple. The penalty for theconviction under s. 6(3) of WAPPRITTA will be a $100 fine in place of that imposed by the

summary conviction appeal judge. Thesentence for the conviction under the Wildlife Act remains unchanged. DATED at the City of Regina, in the Province of Saskatchewan, this 25th day of April, A.D. 2012. “Ottenbreit J.A.” OTTENBREIT J.A. I concur “Smith J.A.” SMITH J.A.

I concur “ Caldwell J.A.” CALDWELL J.A.