R. v. Alsager (E.) et al., 2016 SKCA 91

• Judge: Richards, C.J.S., Caldwell and Whitmore, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: Monday October 26, 2015
• Jurisdiction: Saskatchewan
• Citations: 2016 SKCA 91;(2016), 484 Sask.R. 112 (CA)

R. v. Alsager (E.) (2016), 484 Sask.R. 112 (CA);

    674 W.A.C. 112

MLB headnote and full text

Temp. Cite: [2016] Sask.R. TBEd. AU.001

Her Majesty the Queen (appellant on aquittal and sentence/respondent on convictions) v. Erick R. Alsager (respondent on acquittal and sentence/appellant on convictions)

(CACR2524, CACR2525, CACR2541)

Her Majesty the Queen (appellant on sentence/respondent on conviction) v. Jan A. Alsager (respondent on sentence/appellant on conviction)

(CACR2526; CACR2540; 2016 SKCA 91)

Indexed As: R. v. Alsager (E.) et al.

Saskatchewan Court of Appeal

Richards, C.J.S., Caldwell and Whitmore, JJ.A.

July 21, 2016.

Summary:

Erick Alsager and his son, Jan, operated a licenced domestic game farm. They were alleged to have shot at coyotes while flying in their helicopter, and to have obstructed a conservation officer in the execution of his duties.

The Saskatchewan Provincial Court convicted the Alsagers of using an aircraft to hunt wildlife (Wildlife Regulations, s. 47). Each was fined $10,500 and prohibited from carrying a firearm in an aircraft for one year. In addition, Erick was convicted of obstructing a peace officer in the execution of his duties (Criminal Code, s. 129(a)), and received a suspended sentence with one year of probation. The Alsagers appealed the convictions and sentences.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2014), 459 Sask.R. 256, dismissed the appeals on the hunting charges, but allowed the sentence appeals. The Court reduced Erick's fine to $3,500 plus a surcharge of $1,400, and reduced Jan's fine to $2,500 plus a surcharge of $1,000. The Court also set aside the "firearms in aircraft" prohibition. As well, the Court allowed Erick's appeal against his conviction for obstruction. Both the Alsagers and the Crown appealed. The Alsagers sought to set aside their convictions for hunting from an aircraft. The Crown contended that the appeal judge erred both in reducing the sentences and in overturning Erick's conviction on the obstruction charge.

The Saskatchewan Court of Appeal allowed the Crown's appeals concerning the acquittal and the sentences, and dismissed the Alsagers' conviction appeals.

Criminal Law - Topic 434

Offences against the administration of law and justice - Disobedience and obstruction - Obstruction and resistance of peace officer in execution of his duty - The Saskatchewan Court of Appeal stated that "[t]he case law with respect to the mens rea element of the offence of wilfully obstructing a peace officer is not consistent. On the one hand, there are decisions holding that, in order to secure a conviction, the Crown must prove not only that the accused intended to do the act that had the effect of obstructing a peace officer but also that the accused intended to obstruct the peace officer. ... On the other hand, there are cases which hold that the mens rea element of s. 129 requires nothing more than the intentional performance of an act that obstructs a peace officer. ... In my view, s. 129(a) should be read as requiring more than proof of an intention to do an act that ultimately has the effect of obstructing a peace officer. This flows directly and logically from the language of the provision itself. Section 129(a) does not refer to 'wilfully performing an act that obstructs a public officer or a peace officer.' Rather, it uses the words 'wilfully obstruct[s] a public officer or peace officer ... . I am hard-pressed not to attach meaning to that language."- See paragraphs 45 to 48.

Criminal Law - Topic 434

Offences against the administration of law and justice - Disobedience and obstruction - Obstruction and resistance of peace officer in execution of his duty - The Saskatchewan Court of Appeal concluded that the mens rea aspect of s. 129(a) of the Criminal Code "requires the Crown to prove beyond a reasonable doubt that (a) the accused knew the individual obstructed was a peace officer or other person listed in s. 129(a); (b) the accused knew the individual obstructed was in the execution of his or her duty; and (c) the accused either had an intention to obstruct the peace officer or foresaw with certainty or substantial certainty that doing the act in question would obstruct the peace officer." - See paragraph 53.

Fish and Game - Topic 2301

Hunting offences - General principles - What constitutes hunting - [See Fish and Game 2329].

Fish and Game - Topic 2329

Hunting offences - From a vehicle, aircraft or boat - Hunting from or with an aircraft - The appellants (Erick and Jan Alsager) testified that while conducting an aerial survey of their game farm, they observed a deer being attacked by coyotes, that Erick brought the helicopter down, and that Jan exited with a shotgun and fired shots at the fleeing coyotes -The trial judge rejected their evidence that they did not shoot at the coyotes from the air - They were each convicted of using an aircraft to hunt wildlife, contrary to s. 47 of the Wildlife Regulations - The appeal judge sustained their convictions - The Saskatchewan Court of Appeal dismissed the appeal - "[G]ranting arguendo the premise that all of the evidence in this case was circumstantial, The Wildlife Regulations convictions must stand. A properly instructed trier of fact, acting judicially, could have reasonably concluded that the only rational conclusion to be drawn from the evidence was that the Alsagers fired from the helicopter when it was in the air." - Further, the appellants' position failed to account for the broad definition of "hunting", which included searching for wildlife - The trial judge's finding that the hunting commenced the moment they entered the helicopter was entirely reasonable - See paragraphs 60 to 72.

Fish and Game - Topic 2655

Offences - Sentence - General - Conditions to secure good conduct and prevent future offences - The accused (Eric and Jan Alsager) operated a game farm - They were both convicted of using an aircraft to hunt wildlife (Wildlife Regulations, s. 47) and were prohibited from carrying a firearm in an aircraft for one year - The appeal judge set aside the prohibition, concluding that the prohibition did not take into account the fact that the accused lawfully operated a game farm, that their deer were subject to predation by coyotes and that most of the 2,500 acres was not accessible by road - The Saskatchewan Court of Appeal allowed the Crown's sentence appeal - "While the firearms prohibition might have had some difficult consequences for the Alsagers, it is not realistic to see it as being demonstrably unfit in the sense ... of being clearly unreasonable, or clearly or manifestly excessive. There are self-evidentially many game farm operators who do not have helicopters. Indeed, Erick himself testified that, although he had game-farmed since 1977, he had owned a helicopter for only ten years." - See paragraphs 89 to 92.

Fish and Game - Topic 2700

Offences - Sentence - Fines and penalties - General - This sentence appeal was brought by both accused (Eric and Jan Alsagers) with respect to their convictions of hunting from a helicopter contrary to s. 47 of the Wildlife Regulations - The trial judge sentenced each to a fine of $7,500 plus a $3,000 surcharge for a total of $10,500 each - The appeal judge reduced Eric's fine to $3,500 plus a $1,400 surcharge, and reduced Jan's fine to $2,500 plus a $1,000 surcharge - The Saskatchewan Court of Appeal allowed the Crown's sentence appeal - "Many central elements of the appeal judge's analysis were ill-founded and, as a result, his conclusion that the fines were demonstrably unfit cannot stand. The fines may have been stiff but they were not demonstrably unfit in the sense of being clearly unreasonable or clearly or manifestly excessive" - The errors made by the appeal judge concerned the issue of public safety; the treatment of the Alsagers' previous convictions; the significance of the style or nature of the Alsagers' testimony; the gravity of the Wildlife Regulations offences; and the misreading of R. v. Hoff (2006) (Sask. Q.B.) as if it defined a sentencing range for a first offence of unlawful hunting - See paragraphs 77 to 87.

Fish and Game - Topic 5604

Enforcement - General - Offences - Obstruction of wildlife officer - The Saskatchewan Court of Appeal allowed the Crown's appeal in relation to s. 129(a) of the Criminal Code, and restored the accused's conviction for obstruction - The summary conviction appeal judge, in reasoning that the Crown had failed to prove that the accused knew he was under investigation for hunting from a helicopter, erred in his approach to the mens rea element of s. 129 - "The mens rea of wilful obstruction does not include knowledge of the precise aspect of a peace officer's mandate that was engaged at the time of an alleged obstruction." - The Crown had proved each of the required elements of the mens rea -Further, and in any event, the appeal judge failed to deal with the trial judge's alternative basis for finding the accused guilty of obstruction: i.e., the accused's admission that he had deliberately given the conservation officer a different firearm than the one originally demanded - See paragraphs 54 to 59.

Counsel:

G.J. Rangi Jeerakathil, for Erick Alsager and Jan Alsager;

W. Dean Sinclair, Q.C., for the Crown.

These appeals were heard on October 26, 2015, before Richards, C.J.S., Caldwell and Whitmore, JJ.A., of the Saskatchewan Court of Appeal. In reasons written by Richards, C.J.S., the Court delivered the following judgment, dated July 21, 2016.