Docket: CACR2251 Jan Alsager Appellant - v. -, 2013 SKCA 129

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 129 Date: 2013-12-09 Between: Docket: CACR2251 Jan Alsager Appellant - and - Her Majesty the Queen Respondent Coram: Jackson, Caldwell & Herauf JJ.A. Counsel: Anthony Gerein for the Crown Rangi Jeerakathil for the Appellant Appeal: From: 2012 SKQB 516 Heard: May 24, 2013 Disposition: Appeal Dismissed Written Reasons: December 9, 2013 By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Herauf

Jackson J.A. I. Introduction [ 1 ] Jan Alsager was charged with exporting wildlife from Saskatchewan without a licence contrary to s. 31(1) (

a) of The Wildlife Act, 1998 , S.S. 1998, c. W-13.12. Kaiser P.C.J. of the Provincial Court of Saskatchewan convicted him (see: 2011 SKPC 184 , 387 Sask. R. 196). On appeal to the Court of Queen’s Bench, Gabrielson J. dismissed his appeal from conviction and allowed his appeal from sentence (see: 2012 SKQB 516 , 412 Sask. R. 35). He now appeals to this Court from his conviction only, pursuant to s. 839 of the Criminal Code . [ 2 ] I have concluded that Mr. Alsager’s appeal must be dismissed. II. Background [ 3 ] Mr.

Alsager operates a booking agency for hunters who want to hunt wildlife on a licensed domestic game farm called Idanell Korner Ranch Ltd. Idanell is operated by Mr. Alsager’s father, Mr. Rick Alsager. [ 4 ] In January of 2008, Mr. Alsager assisted some American hunters to kill nine white-tailed deer and one elk on his father’s game farm. According to the evidence, the deer had been imported into Saskatchewan in 2002 and 2003 and no import licence had been obtained for them.

As a consequence of their status, and unlike other deer on the farm, no unique identification number had been assigned or could be assigned to them. [ 5 ] As a service to the American hunters, Mr. Alsager transported the deer, the elk antlers and the elk hide to Great Falls, Montana. Mr. Alsager obtained a non-mandatory provincial export certificate issued pursuant to s. 20 of The Domestic Game Farm Animal Regulations , R.R.S., c. A-20.2 Reg. 10 for the elk antlers and elk hide only. [ 6 ] Since the deer were not uniquely identified, Mr.

Alsager would not have been able to obtain an export certificate or licence to export the deer antlers. Instead, he presented the border officials with two Canadian Food Inspection Agency Transportation Authorization Permits, which had been obtained when the live deer had been imported into Saskatchewan in 2002 and 2003. [ 7 ] The American authorities accepted this documentation but, following an investigation by the Canadian authorities, Mr. Alsager was charged with exporting wildlife without having first obtained an export licence contrary to s. 31(1) (

a) of The Wildlife Act, 1998 . III. The Main Legislative Provisions [ 8 ] The captive wildlife regulatory regime is complex. The main legislative provisions for the purposes of the within appeal are as follows: 1. The Wildlife Act, 1998 Property in wildlife in the Crown 23

(1) Subject to

section 24, the property in all wildlife within Saskatchewan, including any wildlife that has been unlawfully hunted, is vested in the Crown.

(2) No person shall acquire any right or property in any wildlife otherwise than in accordance with this Act and the regulations. . . . Property rights in captive wildlife 24

(1) Subject to this Act and the regulations, a person has all property rights, title and interest in and to any wildlife where that person: (

a) is in possession of the wildlife; and (

b) has a licence authorizing possession of the wildlife.

(2) Where a person mentioned in subsection (1) contravenes any of the provisions of this Act or the regulations respecting the wildlife under his or her control, all property rights, title and interest in and to the wildlife may be forfeited to the Crown at the discretion of the minister. . . . Export and import of wildlife

(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. . . . Offences and penalties -

Part IV 74

(1) Any person who contravenes a provision of

Part IV or the regulations with respect to wildlife for which no monetary penalty is specified is guilty of an offence and liable on

summary conviction to a fine of not more than $100,000. 2. The Captive Wildlife Regulations , R.R.S., c. W-13.1 Reg. 13 Import and export 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. [1]

(2) Notwithstanding subsection (1) but subject to subsection (3), a person who holds a valid licence pursuant to The Domestic Game Farm Animal Regulations may export domestic game farm animals without an export licence.

(3) A person who holds a valid and subsisting licence described in subsection (2) who imports or exports wildlife for a purpose other than that mentioned in subsection (2) shall comply with subsection (1). 3. The Animal Products Act , R.S.S. 1978, c. A-20 .2

Interpretation 2 In this Act: (a) “ animal ” means any animal raised in captivity for the purpose of producing animal products and includes fertilized ova, fish and bees; Offences and penalties 17

(1) Any person who: (

a) describes an animal or animal product incorrectly on any form prescribed by this Act or the regulations; … (

e) alters or obliterates any part of any document prescribed by this Act or the regulations; is guilty of an offence and, in addition to any other penalty to which he may be subject by law, is liable on

summary conviction: (

h) in the case of a first offence, to a fine of not more than $5,000 or to imprisonment for a term of not more than six months, or to both such fine and imprisonment, and, in default of payment, to imprisonment for a term of not more than six months; (

i) in the case of a subsequent offence, to a fine of not more than $20,000 or to imprisonment for a term of not more than twelve months, or to both such fine and imprisonment, and, in default of payment, to imprisonment for a term of not more than twelve months.

(3) A person who violates any provision of this Act or the regulations for which no penalty is imposed under this Act is guilty of an offence and, in addition to any other penalty to which he may be subject by law, is liable on

summary conviction to a fine of not more than $20,000. 4. The Domestic Game Farm Animal Regulations , R.R.S., c. A-20.2 Reg. 10

Interpretation 2 In these regulations: . . . (b) “ big game animal ” means any of the following animals that is not held in captivity or that is held in captivity but not for the purpose of producing animal products:

(

i) an antelope; (ii) a caribou; (iii) an elk; (iv) a moose; (

v) a mule deer; (vi) a white-tailed deer; . . . (e) “ domestic game farm animal ” means an animal that is held for the purpose of producing products and that: (

i) is a member of the following species, which are indigenous to Saskatchewan: … (

F) the species of white-tailed deer having the scientific name Odocoileus virginianus ; . . . (r) “ unique identification ” means the tagging and marking of a domestic game farm animal by: (

i) placing an identification tag on the animal; and (ii) ensuring that the animal is further identified by a tag, mark or electronic device that is chosen by the domestic game farm operator; . . . Licence issued 5 The minister may issue a domestic game farm licence to an applicant where the minister: (

a) receives an application pursuant to

section 4; and (

b) is satisfied that the applicant has complied with these regulations. . . . Obtaining animals 9 No person shall obtain a domestic game farm animal or a big game animal unless: (

a) the animal is kept by a person who holds: (

i) a valid domestic game farm licence issued pursuant to these regulations; or (ii) a valid licence issued pursuant to The Captive Wildlife Regulations; or (

b) the animal is imported in accordance with these regulations. . . . Identification and identification records 14

(5) Every domestic game farm operator shall ensure that: (

a) all domestic game farm animals that the operator proposes to import into Saskatchewan: (

i) bear, on their entry into Saskatchewan, a federal health of animals tag or a tag recognized by the exporting jurisdiction; and (ii) are uniquely identified on arrival at their first destination in Saskatchewan; and (

b) all domestic game farm animals that the operator slaughters or transports, or that the operator authorizes be slaughtered or transported, are uniquely identified. . . . Import 15

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

(

a) live domestic game farm animals; . . . Processing 18

(2) Subject to subsection (3), every domestic game farm operator who slaughters or authorizes the slaughter of a domestic game farm animal on his or her domestic game farm shall ensure that the hard antlers, horns, hide and carcass of the animal are labeled with the following particulars before they are removed from the farm: (

a) the date of the slaughter (

b) the unique identification of the animal; (

c) the species and sex of the animal; and (

d) the domestic game farm licence number or the name of the domestic game farm operator. . . . Export certificate for products 20

(1) A person who wishes to obtain an export certificate from the minister to aid in the export of a product shall: (

a) apply to the minister in the form required by the minister; (

b) provide the minister with any information that the minister may reasonably require; and (

c) submit a fee of $25.

(2) On receipt of the items mentioned in subsection (1), the minister may issue an export certificate to the applicant. IV. Background [ 9 ] Mr. Alsager’s primary position at trial was that the deer were domestic game farm animals, not wildlife, such that s. 31(1) (

a) of The Wildlife Act, 1998 does not apply. If it does not apply, no export licence or permit is required. [ 10 ] His second main argument was that he was nonetheless exempt because his father holds a licence as a domestic game farm operator, and he acted as agent for his father. According to s. 13(2) of The Captive Wildlife Regulations , the holder of a licence under The Domestic Game Farm Regulations may export domestic game farm animals without a licence. [ 11 ] In support of his arguments regarding the regulations in question, Mr.

Alsager led evidence from a government official who indicated that the export certificate for products, referred to in s. 20 of The Domestic Game Farm Animal Regulations , was an aid to export only and is not mandatory for domestic game farm animals. He also led evidence showing that the government program had changed since 2008. At the time of trial, the evidence showed that the government rarely issues permits under s. 20, but instead permits domestic game farmers to use a bill of sale to export animals or animal products into the United States. [ 12 ] The Crown took the position at trial that Mr.

Alsager was deliberately misreading the legislation. Section 31(1) (

a) of The Wildlife Act, 1998 requires an export licence for the export of all wildlife. All deer are wildlife, whether captive or not. Section 13(2) of The Captive Wildlife Regulations creates an exemption, but only for those who have complied with The Domestic Game Farm Animal Regulations . [ 13 ] Mr. Alsager had illegally imported the nine deer from Alberta which, according to the Crown, meant he could not obtain a unique identification for them, and therefore could not comply with s. 18(2) of The Domestic Game Farm Animal Regulations .

Section 18(2) provides that animal products must be labelled with certain particulars when the animals leave the game farm including the unique identification of the animal. If the game farmer cannot provide a unique identification for an animal, the farmer cannot receive an export permit under s. 20 of The Domestic Game Farm Animal Regulations .

The fact that s. 20 of The Domestic Game Farm Animal Regulations offers an export certificate as an “aid in the export of products” does not change the requirement that an export licence is required for the export of all animal products that are not properly and uniquely identified as coming from domestic game farm animals according to s. 31(1) (

a) of The Wildlife Act, 1998 . [ 14 ] According to the Crown and the government witnesses, including the witness called by Mr. Alsager, the government had changed its program, but the change is not a legislative one and is of no consequence in any event. The present requirement for a bill of sale is the equivalent of an export certificate issued under s. 20 of The Domestic Game Farm Animal Regulations . Both are aids to export and, more significantly, both require that the game farmer describe the animal being transported by its unique identification. Because the deer in question were illegally imported, Mr.

Alsager would not be able to comply with either regime because he was unable to comply with the unique identification requirement. In any event, according to the Crown’s submissions at trial, a change in the law did not absolve Mr. Alsager from compliance with the law as it was enforced in 2008. [ 15 ] In essence, the Crown’s position was that Mr. Alsager was charged with exporting deer without an export licence, and would not be able to get one in any event, because the animals in question were illegally within Saskatchewan.

According to the Crown, putting the animals on a game farm does not make them domestic game farm animals within the meaning of The Domestic Game Farm Animal Regulations .

V. Decision of the Provincial Court [ 16 ] At trial, Kaiser P.C.J. convicted Mr. Alsager of exporting wildlife from Saskatchewan without first obtaining an export licence contrary to s. 31(1) (

a) of The Wildlife Act, 1998 . He followed this reasoning process. [ 17 ] After finding that the deer in question were wildlife covered by The Wildlife Act, 1998 , Kaiser P.C.J. noted that domestic game farm animals may be exported under s. 13 of The Captive Wildlife Regulations , without an export licence, if the exporter holds a valid licence pursuant to The Domestic Game Farm Animal Regulations . While Mr.

Alsager did not personally hold a valid licence pursuant to The Domestic Game Farm Animal Regulations , Kaiser P.C.J. found that the son was acting as an agent for his father who did hold such a licence. [ 18 ] Kaiser P.C.J. found, however, that the deer had been illegally imported into Saskatchewan from Alberta in 2002 and 2003 (paras. 5 and 19). Since they were illegally imported, they were not “lawfully held” by Mr. Rick Alsager and thus did not meet the definition of “domestic game farm animals.” Therefore, an export licence was needed to lawfully export the antlers.

As the appellant did not possess such a licence, he was guilty of exporting the antlers contrary to s. 31(1) (

a) of The Wildlife Act, 1998 . [ 19 ] Kaiser P.C.J. also found that the antlers were not properly labelled contrary to s. 18(2) of The Domestic Game Farm Animal Regulations . The nine deer in this case were not labelled as per the requirements of s. 18(2) and, indeed, could never be properly labelled as they lacked a unique identification number. Although not specifically stated, it appears the trial judge found that a contravention of s. 18(2) also warranted a conviction under s. 31(1) (

a) of The Wildlife Act, 1998 (see paras. 32-37). [ 20 ] As to whether Mr. Alsager had acted diligently, he did not make out the defence of due diligence. Kaiser P.C.J. reviewed the relevant case law, and concluded that all of Mr. Alsager’s mistakes were matters of law. In

summary, he held that Mr. Alsager “knew that the provincial authorities held the view that neither Erick Alsager nor Idanell Korner Ranch Ltd. could lawfully export the deer” (para. 56). He also stated that Mr. Alsager “decided to give it a try and see what happened” which was “not due diligence” (para. 56). [ 21 ] Responding to one of Mr. Alsager’s arguments, Kaiser P.C.J. also found that s. 31 of The Wildlife Act, 1998 was not so vague or overbroad that it offended s. 7 of the Charter . [ 22 ] Kaiser P.C.J. fined Mr. Alsager a total of $78,000 and imposed a two-year hunting ban. [ 23 ] Mr.

Alsager appealed his conviction and sentence to the Court of Queen’s Bench under s. 813 of the Criminal Code . VI. Decision of the Court of Queen’s Bench [ 24 ] Upon appeal, Gabrielson J. of the Court of Queen’s Bench for Saskatchewan upheld the conviction and reduced the sentence to $5000 plus a surcharge of $1,500 for a total penalty of $6,500 plus the two-year hunting ban levied by the trial judge. [ 25 ] In light of this Court’s decision in Canada (Public Prosecutions, Director) v. Marsland , 2012 SKCA 47 , [2012] 7 W.W.R. 468, Mr.

Alsager abandoned his argument that deer that are “bred, born, raised and harvested in captivity for the purpose of producing animal products” are not “wildlife” within the meaning of The Wildlife Act, 1998 ” (see para. 4). [ 26 ] Gabrielson J. agreed with Kaiser P.C.J. that an export licence was needed to lawfully export the deer antlers from Saskatchewan. Since Mr.

Alsager’s defence to the charge of exporting without a licence is a reference to an exemption contained in s. 13(2) of The Captive Wildlife Regulations , Gabrielson J. held the onus was upon him to establish that he came within the exemption, which in this case would be that the white-tailed deer in question were domestic game farm animals. Section 794(2) of the Criminal Code places the burden of proving an exemption on the defendant in a criminal trial. Section 4(4) of The

Summary Offences Procedure Act, 1990 , S.S. 1990-91, c. S-63.1 makes

Part XXVII of the Code , which includes s. 794(2) , applicable to provincial offences. Since Mr. Alsager could not show that the deer were lawfully imported into Saskatchewan, he could not show that the deer antlers qualified as “domestic game farm animals” and thus he did not qualify for the exemption under s. 13(2) of The Captive Wildlife Regulations . [ 27 ] Gabrielson J. also upheld the finding that Mr. Alsager failed to label the antlers in accordance with the requirements under s. 18(2) of The Domestic Game Farm Animal Regulations . Gabrielson J. further found that a breach of s. 18(2) of The Domestic Game Farm Animal Regulations warranted a conviction under s. 31(1) (

a) of The Wildlife Act, 1998 , stating that such an

interpretation is “an

interpretation which the overall regulatory scheme can bear” (para. 30). Finally, Gabrielson J. upheld the finding that Mr. Alsager was not duly diligent. [ 28 ] Mr. Alsager applies for leave to appeal and appeals his conviction only under s. 31(1) (

a) of The Wildlife Act, 1998 to this Court, pursuant to s. 839 of the Criminal Code . VII. Primary Arguments and Questions of Law [ 29 ] Under s. 839 of the Criminal Code , Mr. Alsager must identify a question of law. From his grounds of appeal, these questions of

law have been identified: (

i) whether the

summary conviction appeal court judge erred by interpreting “domestic game farm animal”under s. 2 of The Domestic Game Farm Animal Regulations as requiring that the animal be legally held; (ii) whether the

summaryconviction appeal court judge erred by holding that a failure to label domestic game farm animal parts in accordance with s. 18(2)(

d) ofThe Domestic Game Farm Animal Regulations can as a matter of law lead to a conviction under s. 31 of The Wildlife Act, 1998; (iii)whether the

summary conviction appeal court judge erred by failing to find that reliance upon unprosecuted activity dating from 2002and 2003, so as to prevent Mr. Alsager from falling with the exemption created by s. 13 (2) of The Captive Wildlife Regulations, violatess. 7 or s. 11(

d) of the Charter. Mr. Alsager no longer asserts that the trial judge erred by finding that the defence of due diligence isunavailable to him. [30] In addition to submitting that the questions of law should be answered negatively, Crown counsel on appeal raises a new argumentto the effect that s. 13(2) of The Captive Wildlife Regulations allows for an exemption for live animals only, and since antlers are“animal products,” they cannot as a matter of law qualify for the exemption. VIII. Analysis A. Whether the

summary conviction appeal court judge erred by interpreting “domestic game farm animal” under s. 2(

e) of TheDomestic Game Farm Animal Regulations as requiring that the animal be legally held? [31] Mr. Alsager argues for an

interpretation of s. 2(

e) of The Domestic Game Farm Regulations based on the plain meaning of theprovision. According to his

interpretation, s. 13(2) of The Captive Wildlife Regulations allows a person holding a valid licence pursuantto The Domestic Game Farm Animal Regulations to export domestic game farm animals without an export licence—regardless of theorigin of the animal. It is enough that the animal meets the definition of being a “domestic game farm animal” under s. 2(

e) of TheDomestic Game Farm Animal Regulations which is “held for the purposes of producing products.” As authority for the proposition thatthe Court should look no further than the words of s. 13(2) of The Captive Wildlife Regulations and s. 2(

e) of The Domestic Game FarmAnimal Regulations, Mr. Alsager through his counsel refers the Court to such authorities as Thomson v. Canada (Department ofAgriculture), (SCC), [1992] 1 S.C.R. 385 at p. 400. [32] Further, Mr. Alsager submits that neither the legislation nor the regulations provide or require that a domestic game farm animalmust be legally obtained. He interprets s. 9 of The Domestic Game Farm Animal Regulations as referring not to the origin of the animalsbut to the person who acquires them: Obtaining animals 9 No person shall obtain a domestic game farm animal or a big game animal unless: (

a) the animal is kept by a person who holds: (

i) a valid domestic game farm licence issued pursuant to these regulations; or (ii) a valid licence issued pursuant to The Captive Wildlife Regulations; or (

b) the animal is imported in accordance with these regulations. According to Mr. Alsager’s

interpretation of s. 9, a person cannot obtain a domestic game farm animal unless he or she holds a domesticgame farm licence, but if the person has a domestic game farm licence that person may obtain a domestic game farm animal or a biggame animal from anyone. [33] Mr. Alsager interprets s. 13(2) of The Captive Wildlife Regulations as permitting a domestic game farm operator to acquire ananimal, which happens to fall within the definition of a domestic game farm animal, simply by virtue of the fact of the prior licence.

Inother words, he asserts there is no requirement imposed on a domestic game farm operator to legally obtain a domestic game farmanimal. [34] I am not persuaded by these arguments. The Supreme Court of Canada in Re Rizzo & Rizzo Shoes Ltd., (SCC),[1998] 1 S.C.R. 27, at para. 21 stated that the preferred method of statutory

interpretation is best encapsulated by Elmer Driedger’smodern principle: “[t]oday there is only one principle or approach, namely, the words of

an Act are to be read in their entire context, intheir grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” Mr. Alsager suggests an

interpretation of s. 13(2) of The Captive Wildlife Act and s. 2(

e) of The Domestic Game Farm Regulations thatcannot be read harmoniously with the scheme and objects of the Acts and regulations governing captive wildlife and is inconsistent withthe intention of the legislature. [35] This Court has recently commented on the purpose and object of The Wildlife Act, 1998. In Marsland, supra at para. 27, OttenbreitJ.A., for the Court, affirmed that the true intent and purpose of The Wildlife Act, 1998 is to protect wildlife, regulate hunting and promotethe conservation and management of wildlife within the Province.

Kaiser P.C.J. stated: “the legislative objective of protecting wildlifecannot be achieved without regulating, monitoring and tracking the export of all animal products originating from animals of the samespecies” (at para. 49). That statement accords with this Court’s expression in Marsland of the true intent and purpose of The Wildlife Act,1998. [36] According to s. 23 of The Wildlife Act, 1998 the property in all wildlife is vested in the Crown. No one can acquire any right orproperty in any wildlife from the Crown otherwise than in accordance with that Act and the regulations.

Section 24 creates an exceptionwith respect to property rights in captive wildlife in certain circumstances: Property rights in captive wildlife

24(1) Subject to this Act and the regulations, a person has all property rights, title and interest in and to any wildlife where that person: (

a) is in possession of the wildlife; and (

b) has a licence authorizing possession of the wildlife. Thus, a person who has a licence authorizing possession of any wildlife has all property rights, title and interest in the wildlife. A licence authorizing possession of wildlife is not, however, open-ended.

The licence holder cannot assert property rights over wildlife not properly covered by the licence by virtue of the fact of the licence. [ 37 ] All of the provisions at issue in the within appeal must be read against the back drop of ss. 23 and 24 of The Wildlife Act, 1998 . [ 38 ] Under s. 5 of The Domestic Game Farm Animal Regulations , the minister may issue a domestic game farm licence to an applicant where the minister “is satisfied that the applicant has complied” with the regulations. According to Exhibit D-3, Mr.

Rick Alsager is licensed “to carry on business in Saskatchewan in the manner prescribed” by The Animal Products Act and the regulations, which are The Domestic Game Farm Animal Regulations . Those regulations require that import licences be obtained to import live domestic game farm animals and impose strict requirements regarding how such animals are managed. A game farm operator cannot seek to augment its herd except in accordance with The Domestic Game Farm Animal Regulations . [ 39 ] The domestic game farm industry is highly regulated.

The Domestic Game Farm Animal Regulations impose a series of obligations on a person operating a domestic game farm. Such obligations include maintaining identification records and herd inventory records, and participating in surveillance programs regarding certain diseases. [ 40 ] Contrary to Mr. Alsager’s

interpretation, s. 9 of The Domestic Game Farm Animal Regulations is a clear indication that only three ways exist by which a person can acquire a domestic game farm animal: (

i) from a person who holds a valid domestic game farm licence issued pursuant to The Domestic Game Farm Animal Regulations ; (ii) from a person who holds a valid licence issued pursuant to The Captive Wildlife Regulations ; or (iii) the animal is imported in accordance with The Domestic Game Farm Animal Regulations . It is irrelevant that the person who acquires the animal is the holder of a domestic game farm licence. It is the origin of the animal that is controlled. [ 41 ] That brings us to the direct construction of s. 13(2) of The Captive Wildlife Regulations . For ease of reference, that provision provides: 13

(2) Notwithstanding subsection (1) but subject to subsection (3), a person who holds a valid licence pursuant to The Domestic Game Farm Animal Regulations may export domestic game farm animals without an export licence . (emphasis added) [ 42 ] Kaiser P.C.J. construed this

section by referring to the definition of “domestic game farm animal” in The Domestic Game Farm Animal Regulations , which for ease of reference reads as follows: 2 In these regulations: (e) “domestic game farm animal” means an animal that is held for the purpose of producing products and that: (

i) is a member of the following species, which are indigenous to Saskatchewan: … (

F) the species of white-tailed deer having the scientific name Odocoileus virginianus ; Kaiser P.C.J. concluded that “held” in s. 2(

e) must be construed as “lawfully held” in the sense of lawfully acquired. Gabrielson J. sustained that

interpretation of the provision. [ 43 ] In my respectful view, that

interpretation captures the essential issue at stake, which is whether s. 13(2) of The Captive Wildlife Regulations can bear the

interpretation that Mr. Alsager urges upon the Court. Mr. Alsager submits that a person holding a valid licence may export “domestic game farm animals” without an export licence—simply by virtue of the fact that the person “holds a valid licence pursuant to The Domestic Game Farm Animal Regulations .” According to Mr. Alsager, it is sufficient that the animal in question is held for the purpose of producing products, regardless of the fact the animal was lawfully acquired. [ 44 ] Such an

interpretation ignores the fact that every domestic game farm animal is required to be uniquely identified and part of a herd maintained by the game farm operator according to the requirements of The Domestic Game Farm Animal Regulations . Having regard for the regulatory scheme in question, Mr. Alsager’s

interpretation would not give effect to the object of the various Acts and regulations, and would not fulfil the intention of the legislature. An animal that is not uniquely identified is not subject to the myriad controls imposed by The Domestic Game Farm Animal Regulations . [ 45 ] Mr. Alsager would not, as a matter of law, have been able to obtain an export certificate for these animals. He could not have obtained an export certificate under s. 20 of The Domestic Game Farm Animal Regulations .

The fact that such a certificate is not required for a “domestic game farm animal” is not the relevant question to ask. The fact that such a certificate would not be granted if requested is, however, highly relevant to the analysis. It would not be granted because Mr. Alsager could not comply with the unique identification requirement. Similarly, Mr. Alsager would not be able to comply with s. 18(2) of The Domestic Game Farm Animal Regulations for the same reason, i.e. , he would not be able to provide the unique identification of the animals in question. [ 46 ] Mr.

Alsager argues that Kaiser P.C.J. erred by considering the consequences of interpreting s. 13(2) of The Captive Wildlife Regulations as he suggested, and that by implication Gabrielson J also erred by sustaining a conclusion founded on an

interpretation

influenced by a consideration of the consequences of one

interpretation over another. Kaiser P.C.J. wrote: [23] These animals are obviously of the designated species, and the purpose of having them at Idanell Korner Ranch is to produce products, as that term is defined in the relevant statutes and regulations. In my view the issue turns on the meaning of the word “held”. Does this mean simply physically controlled or does it mean “lawfully held”? It is my view that it means “lawfully held”.

Otherwise, a licenced domestic game farmer could capture a free ranging deer without any permit, licence or other authority, and so long as he held it for purposes of producing products, his possession and ultimate export would be authorized by his licence. Clearly this is not the intent of the legislation . (emphasis added) [ 47 ] Mr. Alsager asserts that the trial judge should not have considered the consequences of his

interpretation and, in his submission, his

interpretation would not result in the suggested consequence, in any event. He asserts that a free range animal would not meet the definition of “animal” set out in The Domestic Game Farm Animal Regulations and its parent legislation, The Animal Products Act , R.S.S. 1978, c. A-20 .2. According to this argument, by virtue of the definition of “animal” in The Animal Products Act, an animal must be “raised in captivity” in order to be a “domestic game farm animal” and a free range deer would not meet that definition, i.e. , it would not be raised in captivity, even if it were held for the purposes of producing products. [ 48 ] Considering the consequences of a suggested

interpretation cannot be the only means of properly construing a provision (see: Ruth Sullivan, Sullivan on the Construction of Statutes , 5th ed (Markham: LexisNexis, 2008) at p. 299 and following). In some cases, however, a consideration of the consequences of an

interpretation can demonstrate whether the

interpretation will defeat the purpose of the legislation. [ 49 ] Thus, in Rizzo Shoes , the Supreme Court of Canada considered the consequences or effects of the alternative

interpretation and found it was incompatible with the object of the legislative enactment being construed. Iacobucci J. sustained the trial judge’s finding of absurdity, saying the legislature does not intend to produce absurd consequences. He stated that legislation can be considered absurd: (

i) if it leads to ridiculous or frivolous consequences; (ii) if it is extremely unreasonable or inequitable; (iii) if it is illogical or incoherent; or (iv) if it is incompatible with other provisions or with the object of the legislative enactment (see para. 27). [ 50 ] Having regard for the

definitions of absurdity in Rizzo Shoes , Kaiser P.C.J.’s example is entirely apt. The legislature has created a highly regulated regime for game farms. Every domestic game farm animal on the game farm must form part of a regulated inventory. For example, a domestic game farm operator is required to make every reasonable effort to ensure that all big game animals of the same species as the domestic game farm animals are removed from the enclosure prior to stocking the enclosure with domestic game farm animals (see s. 11(2) of The Domestic Game Farm Animal Regulations ).

Every domestic game farm operator who finds a big game animal that is attempting to gain entrance, or that has gained entrance, to an enclosure for domestic game farm animals must immediately report the circumstances to an inspector or to a wildlife officer, as defined in The Wildlife Act, 1998 (see s. 13(1) of The Domestic Game Farm Animal Regulations ). [ 51 ] If this Court were to accept Mr. Alsager’s literal

interpretation of s. 13(2) of The Captive Wildlife Regulations , it would have implications for the

interpretation of other aspects of The Domestic Game Farm Animal Regulations . For example, if a big game animal enters an enclosure, and the game farmer does not comply with ss. 11 and 13 of The Domestic Game Farm Animal Regulations , it would nonetheless be possible to export the animal without an export licence, as long as the big game animal is a member of one of the species listed in s. 2(

e) and is “held for the purposes of producing products.” Such an

interpretation must be considered “absurd” according to the

definitions of that term used in Rizzo Shoes. It is incompatible with other provisions and with the object of the legislative enactment [ 52 ] In this regard, I do not accept Mr. Alsager’s

interpretation of the word “animal” in “domestic game farm animal.” The Animal Products Act primarily regulates animals held in captivity, but it also recognizes in The Domestic Game Farm Animal Regulations another category, that of the “big game animal,” which may or may not be held for the purposes of producing products.

To further define “animal” in each of the defined terms of “domestic game farm animal” and “big game animal” so as to find that all such animals are held for the purposes of producing products would make the application of the provisions of the regulations pertaining to “big game animals,” like ss. 11 and 13 , meaningless. [ 53 ] Further, taken to its logical length, Mr. Alsager’s

interpretation would also mean any person holding a valid licence could export any type of domestic game farm animal, no matter how acquired and whether regulated or not, having regard for the full definition of “domestic game farm animal” as follows: 2 In these regulations: (e) “domestic game farm animal” means an animal that is held for the purposes of producing products and that: (

i) is a member of the following species, which are indigenous to Saskatchewan: (

A) the species of antelope having the scientific name Antilocapra americana ; (

B) the species of caribou and reindeer having the scientific name Rangifer tarandus ; (

C) the species of elk having the scientific name Cervus elaphus nelsoni , Cervus elaphus roosevelti , Cervus elaphus manitobensis , Cervus elaphus nannodes or any crosses between these subspecies; (

D) the species of moose having the scientific name Alces alces ; (

E) the species of mule deer having the scientific name Odocoileus hemionus ; (

F) the species of white-tailed deer having the scientific name Odocoileus virginianus ;

(

G) any interspecies hybrids of mule deer mentioned in paragraph (

E) with white-tailed deer mentioned in paragraph (F); or (ii) is a member of the following species, which are not indigenous to Saskatchewan: (

A) the species of fallow deer having the scientific name Dama dama ; (

B) the species of bighorn sheep having the scientific name Ovis canadensis ; (

C) the species of American thinhorn sheep having the scientific name Ovis dalli , including stone and dall sheep; (

D) the species of mouflon sheep having the scientific name Ovis ammon ; (

E) the species of musk deer having the scientific name Moschus spp. ; (

F) the species of mountain goat having the scientific name Oreamnos americanus ; [ 54 ] The real point, however, is that the legislation appropriately read requires, but does not make available, an export licence for the exportation of domestic game farm animals not legally held. According to Mr. Alsager’s

interpretation, even though he could not obtain an export licence from the authorities, he nonetheless falls within the exemption created by s. 13(2) of The Captive Wildlife Regulations . Such an

interpretation cannot be sustained. [ 55 ] Thus, the

summary conviction appeal court judge did not commit an error of law when he concluded that the trial judge had not erred by confining the

interpretation of s. 13(2) of The Captive Wildlife Regulations to those animals lawfully held. Indeed, no other

interpretation accords with the intention of the legislature to regulate the ingress and egress of captive wildlife to the Province. B. Whether the

summary conviction appeal court judge erred by failing to find that reliance upon unprosecuted activity dating from 2002 and 2003, so as to prevent Mr. Alsager from falling with the exemption created by s. 13 (2) of The Captive Wildlife Regulations , violates s. 7 or s. 11(

d) of the Charter ? [ 56 ] Mr. Alsager through his counsel makes a number of arguments regarding the applicability of the exemption in this case. In short, he asserts that it is contrary to s. 7 of the Charter and his right to a fair trial under s. 11(

d) of the Charter to look to evidence pertaining to events that had occurred in 2002 and 2003, which did not result in a prosecution at that time, and for which defences might have existed. He also challenges the constitutionality of the reverse onus clause created by s. 13(2) of The Captive Wildlife Regulations . [ 57 ] Specifically, Mr.

Alsager submits that the trial judge found Idanell Korner Ranch guilty of charges “which have never been laid, on the basis of facts which failed to substantiate the charges beyond a reasonable doubt and which were never applied to that standard by the trial judge and to which no defence by Idanell Ranch was ever allowed for.” [ 58 ] Further factual detail is required to assess these arguments. From the evidence, it may be inferred that a longstanding dispute has existed between the Provincial Government and Mr. Rick Alsager regarding his 2002-2003 acquisition of white-tailed deer from Alberta.

Government representatives believe that Mr. Rick Alsager was required to obtain an import permit for the animals, and refuse to give him an export permit to export them after they have been hunted. He, on the other hand, believes that he does not need either an import or export permit. [ 59 ] As it happens, however, Mr. Alsager presented what became Exhibits D-11 and D-12 as evidence. These exhibits are copies of Transportation Permits issued in 2002 and 2003 for moving 77 male white-tailed deer and 25 male white-tailed deer, respectively, from two Alberta farms to Idanell Korner Ranch and Rick Alsager. Mr.

Alsager also testified, and largely evaded answering the direct questions of the Crown, regarding what he knew and did not know. [ 60 ] From this evidence, Kaiser P.C.J. found that Idanell Korner Ranch and Rick Alsager had not obtained the necessary import permits: [5] … I find as a fact that white-tailed deer were moved from Alberta to Saskatchewan by Rick Alsager to Idanell Korner Ranch in 2002 and 2003, as shown on D-11 and D-12 . The Crown evidence is that no import permits or licences for white-tailed deer were ever obtained by Mr. Alsager or his corporation. This evidence is uncontested by the Defence .

Regardless of the placement of onus in respect of this issue, I find that no import licences or permits were ever obtained in respect of any of the white-tailed deer discussed in this judgment . It is of note that D-12 has a passage prominently displayed and printed in capital letters that reads [emphasis added]: CERTAIN PROVINCES HAVE REQUIREMENTS AFFECTING THE MOVEMENT OF CERVIDAE INTO THEIR PROVINCES THAT ARE NOT FULFILLED BY ISSUANCE OF THIS PERMIT. YOU ARE ADVISED TO CONTACT THE VETERINARY AUTHORITIES IN THE DESTINATION PROVINCE TO DETERMINE WHETHER THEY HAVE RESTRICTIONS ON THE MOVEMENT OF CERVIDAE.

[61] With respect to the constitutionality of the reverse onus clause, Mr. Alsager argues that, by finding that the deer were illegallyimported in 2002 and 2003, the trial judge basically imported the actus reus of another charge against him without any evidence tosupport it. He states that this results in a reverse onus being placed upon him that infringes his rights guaranteed by ss. 7 and 11(

d) of theCharter. [62] In support of this argument, Mr. Alsager largely relies upon R. v. Wholesale Travel Group Inc., (SCC), [1991] 3S.C.R. 154 for the proposition that a reverse onus placed on an accused in a regulatory offence proceeding prima facie violates ss. 7 and11(

d) of the Charter. In Wholesale Travel, four judges found that the reverse onus clause in that case was saved by s. 1 of the Charter,three judges found that the specific reverse onus was not saved by s. 1, and two judges found that there was no Charter violation. Mr.Alsager appears to argue, based on the lack of unanimity among the members of the Court in Wholesale Travel, that the

summaryconviction appeal court judge’s reliance upon the reverse onus in this case violated ss. 7 and 11(

d) of the Charter. Given that themajority of the judges upheld the reverse onus provisions in Wholesale Travel, it is largely unhelpful to Mr. Alsager. [63] Exporting white-tailed deer without a Wildlife Act, 1998 licence is prohibited by s. 31(1) of the Act unless the exemption in s. 13 ofThe Captive Wildlife Regulations applies to Mr. Alsager.

As Kaiser P.C.J. found, it may very well be that, in the context of this case, noissue arises with respect to the reverse onus nature of s. 13(2) of The Captive Wildlife Regulations because the defence admitted that noimport licences were ever obtained in respect of the deer in question on this appeal. In any event, as Gabrielson J. found, the onus ofproving any licence or exemption falls on the accused. That follows from the combined operation of s. 4 of The

Summary OffencesProcedure Act, 1990 and s. 794(2) of the Criminal Code. [64] In this case, the law is clear that it was necessary in 2002 and 2003to obtain an import licence to bring live domestic game farmanimals into the Province (ss. 9 and 15 of The Domestic Game Farm Animal Regulations quoted above). Once the Crown proved thatthe deer antlers in question had been exported without a licence, Mr. Alsager bore the onus to prove that no licence to export wasrequired. As a matter of fact, he admitted that the animals had been acquired without an import permit.

As a matter of law, an importpermit was required and, as Kaiser P.C.J. and Gabrielson J. held, as a matter of law, he cannot rely upon the exemption contained in s.13(2) of The Captive Wildlife Regulations unless the deer had been lawfully held. [65] As part of his argument on this point, Mr. Alsager also argues that he should not have been impressed with the illegality of theimport in 2002 and 2003 for two reasons. First, he asserts that his father was not prosecuted.

Second, he asserts that his father’s failureto obtain an import certificate in 2002 and 2003 should not have resulted in his prosecution for failing to obtain an export certificate in2008. In sum, Mr. Alsager argues that it is unfair for the Government to continue to insist on the regulation of domestic game farmanimals in the manner that it does. [66] As Crown counsel in this Court aptly argues, the fact that someone was not caught or prosecuted does not make the individual’saction lawful. The Crown need not prosecute the principal before convicting the party (see: R. v.

Emond, 2010 SKCA 148, 2010CarswellSask 766). [67] With respect to Mr. Alsager’s argument that he should not be impressed with the actions of his father, it is sufficient to note thatMr. Alsager asserts the exemption contained in s. 13(2) of The Captive Wildlife Regulations by virtue of his status as agent. As agent, heis impressed with all of the deficiencies of the licence his principal holds. [68] In short, this ground of appeal fails. The

summary conviction appeal court judge committed no error of law by sustaining the trialjudge’s finding that Mr. Alsager had not met the onus upon him to prove that he falls within the exemption created by s. 13(2) of TheCaptive Wildlife Regulations. C. Miscellaneous Points [69] As indicated above, Kaiser P.C.J. found that a conviction under s. 31(1) of The Wildlife Act, 1998 might also be sustained by virtueof Mr. Alsager’s failure to properly tag the antlers in accordance with s. 18 of The Captive Wildlife Regulations. Since I have sustainedthe conviction on the basis that Mr.

Alsager does not fall within the exemption created by s. 13(2) of The Domestic Game Farm AnimalRegulations, it is not necessary for me to consider whether the

summary conviction appeal court judge erred by holding that a failure tolabel domestic game farm animal parts in accordance with s. 18(2)(

d) of The Domestic Game Farm Animal Regulations can as a matterof law lead to a conviction under s. 31 of The Wildlife Act, 1998. [70] The Crown sought to sustain the conviction in this case on an alternative and new basis that s. 13(2) of The Captive WildlifeRegulations creates an exemption for the exportation of “live” animals only. I do not find it necessary to consider that alternativeargument. IX. Conclusion [71] I would grant leave to appeal under s. 839 of the Criminal Code, but I would dismiss the appeal.

I would also like to acknowledgethe assistance of counsel in explaining the highly technical nature of the legislative regime regulating the captive wildlife industry. DATED at the City of Regina, in the Province of Saskatchewan, this 9th day of December, A.D. 2013. __ “Jackson J.A.”_________________

Jackson J.A. I concur. ___ “Caldwell J.A.” ________________ Caldwell J.A. I concur. ___ “Herauf J.A.” _________________ Herauf J.A.