R. v. Gitzel (W.), (2012) 410 Sask.R. 194 (QB)

• Judge: Scherman, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: December 07, 2012
• Jurisdiction: Saskatchewan
• Citations: (2012), 410 Sask.R. 194 (QB);2012 SKQB 510

R. v. Gitzel (W.) (2012), 410 Sask.R. 194 (QB)

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. DE.106

Her Majesty the Queen (appellant) v. Wayne Gitzel (respondent)

(2011 Q.B.A. No. 1; 2012 SKQB 510)

Indexed As: R. v. Gitzel (W.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Prince Albert

Scherman, J.

December 7, 2012.

Summary:

Gitzel appealed from his conviction on a charge of unlawfully trafficking in forest products contrary to s. 79(1)(f) of the Forest Resources Management Act (Sask.). His position was that there was no evidence that could support a finding that the firewood he sold to an undercover officer was wood harvested from Crown lands. The Crown appealed from the sentence, taking the position that a fine of $1,000 with a 40% surcharge was an unreasonably low penalty. The acquittals on the charges of unlawfully harvesting and unlawfully possessing forest products were not appealed.

The Saskatchewan Court of Queen's Bench dismissed the conviction appeal and allowed the Crown's sentence appeal.

Forests and Forest Products - Topic 5246

Offences - Illegal cutting, removal or possession of timber - Crown lands - The defendant was acquitted on the charges of unlawfully harvesting and unlawfully possessing forest products - He appealed from his conviction on a charge of unlawfully trafficking in forest products contrary to s. 79(1)(f) of the Forest Resources Management Act (Sask.) - The Saskatchewan Court of Queen's Bench dismissed the conviction appeal - While the court found the trial judge's reasoning to be flawed, nonetheless the defendant was properly convicted - The defendant, in conversations with an undercover officer, had offered to sell 100 cords of wood that he intended to come from Crown land - His actions in those conversations met the definition of "traffic" in s. 2(1)(dd) of the Act - The evidence also established that the defendant had no intention of obtaining a permit to harvest the wood to fill the order, or a licence to deal in forest products - See paragraphs 26 to 38.

Forests and Forest Products - Topic 5281

Offences - Penalties - General - The defendant was convicted of unlawfully trafficking in forest products (100 cords of firewood) contrary to s. 79(1)(f) of the Forest Resources Management Act (Sask.) - The Crown appealed from the sentence, taking the position that a fine of $1,000 with a 40% surcharge was an unreasonably low penalty - The Saskatchewan Court of Queen's Bench concluded that an appropriate fine was $5,000 - The clear intention of the defendant was to avoid the $15 per cord provincial levy - Of even greater significance was the need to deter not only the defendant but other offenders from flouting the law - A fine equivalent to the levy avoided would be inappropriately low, since the fine could not in the circumstances act as a deterrent - The court also imposed a victim fund surcharge of 40% as required by s. 3 of the Victims of Crime Regulations - The defendant had 60 days to pay the fine and victim surcharge imposed - In default of payment, the court imposed a term of imprisonment of 90 days - See paragraphs 39 to 41.

Cases Noticed:

R. v. Lumbala (S.M.), [2012] Sask.R. Uned. 13; 2012 SKQB 64, refd to. [para. 24].

R. v. Wilton (G.D.) (2009), 345 Sask.R. 81; 2009 SKQB 405, refd to. [para. 25].

R. v. Grant, [1991] 3 S.C.R. 139; 130 N.R. 250; 93 Nfld. & P.E.I.R. 181; 292 A.P.R. 181; 67 C.C.C.(3d) 268, refd to. [para. 27].

R. v. Grdic, [1985] 1 S.C.R. 810; 59 N.R. 61; 19 D.L.R.(4th) 385, refd to. [para. 27].

Statutes Noticed:

Forest Resources Management Act, S.S. 1996, c. F-19.1, sect. 2(1)(dd) [para. 34]; sect. 79(1)(f) [para. 1].

Counsel:

Inez J. Cardinal, Q.C., for the appellant;

Peter V. Abrametz, for the respondent.

This summary conviction appeal was heard before Scherman, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Prince Albert, who delivered the following judgment, dated December 7, 2012.