R. v. Alsager (J.A.), (2011) 387 Sask.R. 196 (PC)

• Judge: Kaiser, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: December 02, 2011
• Jurisdiction: Saskatchewan
• Citations: (2011), 387 Sask.R. 196 (PC);2011 SKPC 184

R. v. Alsager (J.A.) (2011), 387 Sask.R. 196 (PC)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. DE.015

Her Majesty the Queen v. Jan A. Alsager

(Information No. 24164348; 2011 SKPC 184)

Indexed As: R. v. Alsager (J.A.)

Saskatchewan Provincial Court

Kaiser, P.C.J.

December 2, 2011.

Summary:

The accused crossed the border from Canada into the U.S.A. with nine sets of white-tailed deer antlers, one set of elk antlers and an elk hide. The antlers and hide originated from a licensed domestic game farm operated by the accused's father. The accused was charged with unlawfully exporting from Canada animal parts, contrary to s. 6(2) of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act (Can.) (count one) and with unlawfully exporting wildlife without an export license, contrary to s. 31(1)(a) of the Wildlife Act (Sask.) (count two).

The Saskatchewan Provincial Court found the accused not guilty on count one and guilty on count two in respect of all nine sets of white-tailed deer antlers.

Civil Rights - Topic 3107

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Void for vagueness doctrine - The accused crossed the border from Canada into the U.S.A. with nine sets of white-tailed deer antlers - The antlers originated from a licensed domestic game farm operated by the accused's father - The accused was charged with exporting wildlife without an export license, contrary to s. 31(1)(a) of the Wildlife Act (Sask.) - He asserted, inter alia, that s. 31 was constitutionally invalid as being vague - The Saskatchewan Provincial Court rejected this argument - There was adequate precision in the provisions to reach conclusions as to how the law operated - The provisions were not constitutionally vague - See paragraphs 38 to 40.

Civil Rights - Topic 3107.2

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Overbreadth principle - The accused crossed the border from Canada into the U.S.A. with nine sets of white-tailed deer antlers - The antlers originated from a licensed domestic game farm operated by the accused's father - The accused was charged with exporting wildlife without an export license, contrary to s. 31(1)(a) of the Wildlife Act (Sask.) - He asserted, inter alia, that s. 31 was constitutionally invalid as being overbroad to the extent that it applied to the export of domestic game farm animals or their products - The Saskatchewan Provincial Court rejected this argument - The accused's argument was that because the Act's purpose was to promote the conservation and management of wildlife, there was no valid purpose in lumping domestic game farm animals with free ranging wildlife and that doing so was arbitrary - However, the legislative purpose of protecting wildlife could not be achieved without regulating, monitoring and tracking the export of all animal products originating from animals of the same species - The method chosen was not unnecessarily broad and did not infringe s. 7 of the Charter - The accused's constitutional application was dismissed - See paragraphs 41 to 49.

Fish and Game - Topic 3

General principles - Legislation - Interpretation and application - [See Civil Rights - Topic 3107 and Civil Rights - Topic 3107.2 ].

Fish and Game - Topic 2305

Hunting offences - General principles - Wildlife - What constitutes - The accused crossed the border from Canada into the U.S.A. with nine sets of white-tailed deer antlers - The antlers originated from a licensed domestic game farm operated by the accused's father - The accused was charged with exporting wildlife without an export license, contrary to s. 31(1)(a) of the Wildlife Act (Sask.) - At issue was whether white-tailed deer that had been bred and killed in captivity were "wildlife" within the meaning of the Act - The Saskatchewan Provincial Court held that all white-tailed deer (and all elk) were wildlife within the meaning of the Act, regardless of the circumstances in which they were born, raised, held or killed - The phrase "wild by nature" in the definition of "wildlife" in the Act modified the word "species", rather than the word "animal" - Therefore, in determining whether an individual animal was wildlife, the court looked to the circumstances of the species to which that animal pertained, rather than to the circumstances of the individual animal - See paragraphs 11 to 14.

Fish and Game - Topic 5821

Exportation and importation - Exportation - General - The accused crossed the border from Canada into the U.S.A. with nine sets of white-tailed deer antlers - The antlers originated from a licensed domestic game farm operated by the accused's father - The accused was charged with exporting wildlife without an export license, contrary to s. 31(1)(a) of the Wildlife Act (Sask.) - The Saskatchewan Provincial Court held that the deer were unlawfully exported - The deer in the present case had been imported from Alberta in 2002 and 2003 - As no one had obtained a provincial import license for the deer, their importation into Saskatchewan was unlawful - Under s. 9 of the Domestic Game Farm Animals Regulations (DGFAR), a person who had brought an animal into Saskatchewan without obtaining an import license could not lawfully obtain the animal - Wildlife that was not lawfully obtained could not be lawfully held - As these deer were not lawfully held, they did not fit within the definition of "domestic game farm animal" in s. 2(e) of the DGFAR - Therefore, although the accused's father held a valid domestic game farm licence under the DGFAR and would have had the power to export domestic game farm animals without a license under s. 13(2) of the Captive Wildlife Regulations, he did not have the power to export these animals without an export license - See paragraphs 15 to 31.

Fish and Game - Topic 5821

Exportation and importation - Exportation - General - Section 18(2) of the Domestic Game Farm Animals Regulations (DGFAR) (Sask.) set out specific requirements for labelling antlers, etc., of slaughtered domestic game farm animals before they were removed from the farm - The accused crossed the border from Canada into the U.S.A. with nine sets of white-tailed deer antlers - The antlers, which were not labelled in any way, originated from a licensed domestic game farm operated by the accused's father - The accused was charged with exporting wildlife without an export license, contrary to s. 31(1)(a) of the Wildlife Act (Sask.) - He asserted, inter alia, that the labelling requirement in s. 18(2) of the DGFAR did not apply to him because he was not a licensed domestic game farmer, but was acting as an agent for the hunters who had killed the animals on his father's farm and, therefore, bore no responsibility for any possible failing by the domestic game farmer - The Saskatchewan Provincial Court rejected this argument - First, the accused was acting as agent for both his father and the hunters - Second, the labelling requirement applied regardless of who actually carried the items - See paragraphs 32 to 37.

Trials - Topic 1172

Summary convictions - Strict liability offences - Defence of due diligence or error of fact - The accused crossed the border from Canada into the U.S.A. with nine sets of white-tailed deer antlers - The antlers originated from a licensed domestic game farm operated by the accused's father - The accused was charged with exporting wildlife without an export license, contrary to s. 31(1)(a) of the Wildlife Act (Sask.) - He asserted a defence of due diligence - The Saskatchewan Provincial Court held that the accused had not established due diligence - The accused argued due diligence but did not identify what mistake was made or what efforts were made to avoid the illegal act - The facts established that the accused knew that the provincial authorities held the view that neither his father nor the father's farm could lawfully export the deer - The accused decided to give it a try and see what happened - That was not due diligence - See paragraphs 50 to 56.

Cases Noticed:

R. v. Nordstrom (C.D.) (2011), 379 Sask.R. 1; 2011 SKPC 166, appld. [para. 9].

R. v. Marsland (J.C.) (2011), 374 Sask.R. 255; 2011 SKQB 207, refd to. [para. 9].

R. v. Hayworth (K.W.) et al. (2003), 231 Sask.R. 204; 2003 SKPC 52, refd to. [para. 10].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 10].

R. v. Biller (V.K.) et al. (1999), 177 Sask.R. 161; 199 W.A.C. 161 (C.A.), refd to. [para. 38].

R. v. Spindloe (M.) (2002), 207 Sask.R. 3; 247 W.A.C. 3; 2001 SKCA 58, refd to. [para. 38].

R. v. Nova Scotia Pharmaceutical Society (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91; 74 C.C.C. (3d) 289; 15 C.R. (4th) 1; 43 C.P.R. (3d) 1; 93 D.L.R.(4th) 36; 10 C.R.R.(2d) 34, refd to. [para. 39].

R. v. Heywood (R.L.), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161; 120 D.L.R.(4th) 348; 94 C.C.C.(3d) 481, refd to. [para. 42].

Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031; 183 N.R. 325; 82 O.A.C. 243, refd to. [para. 45].

Lévis (City) v. Tétreault, [2006] 1 S.C.R. 420; 346 N.R. 331; 2006 SCC 12, refd to. [para. 51].

R. v. Shiner (W.) (2007), 264 Nfld. & P.E.I.R. 186; 801 A.P.R. 186; 2007 NLCA 18, refd to. [para. 54].

Statutes Noticed:

Wildlife Act, S.S. 1998, c. W-13.12, sect. 9, sect. 31 [para. 16].

Counsel:

Inez Cardinal, Q.C., for the Crown;

Thomson Irvine, for the Attorney General of Saskatchewan;

G. Rangi Jeerakathil, for the accused.

This case was heard at North Battleford, Saskatchewan, by Kaiser, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on December 2, 2011.