R. v. Beck (G.) et al., 2002 NBQB 43

• Judge: Creaghan, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: February 01, 2002
• Jurisdiction: New Brunswick
• Citations: 2002 NBQB 43;(2002), 248 N.B.R.(2d) 301 (TD)

R. v. Beck (G.) (2002), 248 N.B.R.(2d) 301 (TD);

    248 R.N.-B.(2e) 301; 646 A.P.R. 301

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Temp. Cite: [2002] N.B.R.(2d) TBEd. FE.042

Her Majesty The Queen (appellant) v. Gerald Beck (respondent)

(M/A/0007/00)

Her Majesty The Queen (appellant) v. Yrois Robichaud (respondent)

(M/A/0008/00; 2002 NBQB 43)

Indexed As: R. v. Beck (G.) et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

Creaghan, J.

February 4, 2002.

Summary:

The accused were acquitted of a charge under s. 16(1.1) of the Migratory Birds Regulations. Section 16(1.1) provided that "a person who kills, cripples or injures a migra­tory game bird shall: (a) immediately make every reasonable effort to retrieve the bird; and (b) if he retrieves the bird while it is still alive, immediately kill and include it in his daily bag limit." The accused, while hunting, shot six ducks, four of which were beyond their wading distance. The four dead ducks drifted down river. After approxi­mate­ly two hours, when the accused had made no effort to retrieve the four ducks that had drifted down river a forest ranger con­fronted the accused and they were charged. The accused argued that it was their practice to retrieve the ducks that fell outside their wading depth after the hunt was completed. The provincial court judge found that in the circumstances of this case it had not been shown that the accused had contravened the regulation. The judge found that the accused exercised due diligence to retrieve the birds. The Crown appealed, arguing that the trial judge erred in his interpretation of the regu­lation and that the law required immedi­ate action once a bird was down and that action must include every reasonable effort.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the appeal. The court held that it was not persuaded that the Crown's position was the only reasonable interpreta­tion of the regulation or that the interpreta­tion taken by the trial judge was unreason­able or incorrect at law. The regula­tion read with some ambi­guity. It constituted a strict liability offence. The benefit of the more liberal interpretation should favour the accused. The court stated that if the law required a clearer statement, the responsibil­ity rested with the legislature.

Fish and Game - Topic 2468

Hunting offences - Migratory birds - Fail­ure to retrieve birds - The accused were acquitted of a charge under s. 16(1.1) of the Migratory Birds Regulations - Section 16(1.1) provided that "a person who kills, cripples or injures a migratory game bird shall: (a) immediately make every reason­able effort to retrieve the bird ..." - The accused, while hunting, shot six ducks, four of which were beyond their wading distance - The four dead ducks drifted down river - After approximately two hours, when the accused had made no effort to retrieve the four ducks they were charged - The accused argued that usually they retrieved the ducks when the hunt was completed - The Crown appealed the ac­quittals, arguing the law required im­medi­ate action once a bird was down and that action must include every reasonable effort - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the appeal and affirmed the acquittals.

Cases Noticed:

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 12].

R. v. Muise (W.T.) (2000), 227 N.B.R.(2d) 95; 583 A.P.R. 95 (T.D.), refd to. [para. 12].

Statutes Noticed:

Migratory Birds Convention Act Regula­tions (Can.), Migratory Birds Regulation, sect. 16(1.1) [para. 2].

Counsel:

Stephen Holt, for the appellant;

Gerald Beck, on his own behalf;

Yrois Robichaud, on his own behalf.

This appeal was heard on February 1, 2002, by Creaghan, J., of the New Bruns­wick Court of Queen's Bench, Trial Divi­sion, Judicial District of Moncton, who delivered the following decision on February 4, 2002.