R. v. Legrande (R.H.) et al., (2013) 549 A.R. 354 (QB)

• Judge: Thomas, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 07, 2012
• Citations: (2013), 549 A.R. 354 (QB);2013 ABQB 30

R. v. Legrande (R.H.) (2013), 549 A.R. 354 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. FE.025

Her Majesty the Queen (respondent) v. Melvin Lorman Gauchier and Randy Harold Legrande (appellants)

(091444885S1; 2013 ABQB 30)

Indexed As: R. v. Legrande (R.H.) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Thomas, J.

January 14, 2013.

Summary:

Legrande, a member of the Whitefish Lake First Nation, and Gauchier, a member of the Peavine Metis Settlement, were charged with hunting in a wildlife sanctuary contrary to s. 39 of the Wildlife Act. The parties agreed that the defence of mistake of fact should be dealt with first.

The Alberta Provincial Court, in a decision reported at 527 A.R. 253 held that the defence was not supported by the evidence. The accused asserted that their right to hunt for food had been infringed and sought declaratory relief and a stay of proceedings.

The Alberta Provincial Court, in a decision reported at 572 A.R. 260, held that the hunting occurred on occupied Crown land to which there was no right of access for the purpose of hunting. The accused had not established an infringement of their right to hunt. The accused appealed the decisions.

The Alberta Court of Queen's Bench dismissed the appeals.

Fish and Game - Topic 805

Indian, Inuit and Métis rights - General principles - Scope of rights - Limitations - Conservation - Legrande, a member of the Whitefish Lake First Nation, and Gauchier, a member of the Peavine Métis Settlement, while on the DMI Road, both shot at a surrogate moose that had been set up by Fish and Wildlife Officers - They were charged with hunting in a wildlife sanctuary contrary to s. 39 of the Wildlife Act - The accused asserted that the sanctuary was unoccupied Crown land and that they had a right of access to hunt - The trial judge held that the sanctuary's creation was a bona fide conservation measure and the land was occupied for that purpose - If the "visible incompatible use" test applied to Crown land, the judge would have found that the sanctuary was put to a use that was visibly incompatible with hunting - There was a large sign at the sanctuary's only entrance which clearly indicated a sanctuary where hunting was prohibited - The incompatible use could be viewed from a hunter's vantage point if he was exercising due diligence - Section 99(2) of the Wildlife Regulations appeared to make allowance for hunting within a sanctuary when authorized by a licence - The type of licence contemplated by s. 99(2) had never been issued and there was neither a policy nor an intention to allow such a licence - The only exception would be for problem wildlife and commercial trapping - The existence of such legislation did not create a right of access for hunting so long as the licensing did not occur - Further, a right of access would not result from the limited hunting of problem animals under licence - There was no right of access to the sanctuary for the purpose of hunting - The Alberta Court of Queen's Bench affirmed the trial judge's conclusions - See paragraphs 41 to 58.

Fish and Game - Topic 805

Indian, Inuit and Métis rights - General principles - Scope of rights - Limitations - Conservation - Legrande, a member of the Whitefish Lake First Nation, and Gauchier, a member of the Peavine Métis Settlement, while on the DMI Road, both shot at a surrogate moose that had been set up by Fish and Wildlife Officers - The DMI Road was designated as a road corridor sanctuary - They were charged with hunting in a wildlife sanctuary contrary to s. 39 of the Wildlife Act - They asserted that there was a prima facie infringement of their right to hunt for food and that Alberta had not established a valid justification for that infringement - The trial judge held that the accused had not established a prima facie infringement - The regulation that created the sanctuary was not unreasonable - The regulation was a conservation measure which interfered only minimally with aboriginal hunting - The evidence did not support a finding of any undue hardship to any aboriginal community - Neither of the accused had previously hunted in the sanctuary and they did not testify that road hunting was their preferred means of exercising their right to hunt - Nor did the evidence support a finding of interference with the preferred means of hunting for any aboriginal community - The only concern expressed was with inability to take full advantage of the new hunting opportunities created by the DMI Road - The DMI Road, even with the road corridor sanctuary, provided greater access for hunting - The Alberta Court of Queen's Bench affirmed the decision - See paragraphs 59 to 68.

Fish and Game - Topic 843

Indian, Inuit and Métis rights - General principles - Right to hunt - Extent of right - [See both Fish and Game - Topic 805 ].

Fish and Game - Topic 849

Indian, Inuit and Métis rights - Right to hunt - Crown lands - Occupied - [See first Fish and Game - Topic 805 ].

Fish and Game - Topic 1700

Offences - General - Intention or mens rea - Offences of strict liability - Legrande, a member of the Whitefish Lake First Nation, was assisting in a First Nations children's camp - An elder requested that he get more moose for the camp - The elder advised him that although the "fish cops" tried to stop the hunting on the DMI Road, it was a good place to hunt and it was okay to do so - Legrande, joined by Gauchier, a member of the Peavine Metis Settlement, proceeded to the DMI Road - They did not see a four foot by eight foot sign at the Road's entrance which designated it as a road corridor sanctuary - There were 10 to 15 shorter signs at the same location - Gauchier had a map which indicated that he could lawfully hunt within 160 km of the Peavine Métis Settlement - The DMI Road fell within that range - Legrande and Gauchier both shot at a surrogate moose that had been set up by Fish and Wildlife Officers - They were charged with hunting in a wildlife sanctuary contrary to s. 39 of the Wildlife Act - They asserted that they had a reasonable belief that they could hunt in the area and that the belief was based on a reasonable mistake of fact which rendered the hunting innocent - The trial judge held that the accused's failure to appreciate that road corridor sanctuaries existed or that it was unlawful to hunt in them resulted exclusively from ignorance of the law which was not a defence - Even if the mistake could be characterized as one of fact, it would not absolve them from liability - This was a strict liability offence - It was not reasonable for Legrande to hunt on the DMI Road without making further inquiries of an official source once he was alerted to the fact that officers were attempting to prevent hunting there - As a hunter, Gauchier would have understood that there were legal limits to his hunting within 160 km of the Settlement - They had a duty to find out the legal limits on their right to hunt before they shot at what they believed to be a moose - Any action that they took to find out the limits was, at best, insufficient - Their mistake was not a reasonable one - The Alberta Court of Queen's Bench affirmed the trial judge's decision - See paragraphs 26 to 37.

Fish and Game - Topic 2473

Hunting offences - Hunting within game preserve - Hunting within road corridor game preserve - [See Fish and Game - Topic 1700 ].

Trials - Topic 1102

Summary convictions - Defences - Mistake of fact - [See Fish and Game - Topic 1700 ].

Trials - Topic 1102

Summary convictions - Defences - Mistake of fact - Legrande and Gauchier were charged with hunting in a wildlife sanctuary contrary to s. 39 of the Wildlife Act - The trial judge rejected the defence of mistake of fact - Legrande and Gauchier appealed - The Alberta Court of Queen's Bench stated that both mistakes of fact and mistakes of law necessarily involved facts concerning the prohibited conduct and the actions that offended, or might offend, that prohibition - The question was what was the nature of the person's misunderstanding - The court referred to case law that illustrated the difference between the two categories and stated that "Perhaps oversimplifying this test, I believe the distinction can be made in this manner. A person who engages in prohibited conduct because of their not knowing the factual limits of the prohibition has made a mistake of law and has no defence. A person who is aware of the factual limits of a legal prohibition and factually exceeds those limits has potentially made a mistake of fact." - See paragraphs 26 to 29.

Trials - Topic 1103

Summary convictions - Defences - Mistake or ignorance of law - [See Fish and Game - Topic 1700 and second Trials - Topic 1102 ].

Trials - Topic 1172

Summary convictions - Strict liability offences - Defence of due diligence or error of fact - [See Fish and Game - Topic 1700 and second Trials - Topic 1102 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 8].

Lévis (City) v. Tétreault, [2006] 1 S.C.R. 420; 346 N.R. 331; 2006 SCC 12, refd to. [para. 16].

R. v. Chapin, [1979] 2 S.C.R. 121; 26 N.R. 289; 45 C.C.C.(2d) 333; 7 C.R.(3d) 225; 95 D.L.R.(3d) 13, refd to. [para. 20].

R. v. Alphonse (W.) (1993), 29 B.C.A.C. 161; 48 W.A.C. 161; 80 B.C.L.R.(2d) 17 (C.A.), refd to. [para. 20].

R. v. Molis, [1980] 2 S.C.R. 356; 33 N.R. 411; 116 D.L.R.(3d) 291, refd to. [para. 22].

R. v. Pendrak (B.M.) (2000), 273 A.R. 92; 2000 ABQB 862, refd to. [para. 27].

R. v. Jones and Pamajewon, [1991] 3 S.C.R. 110; 137 N.R. 321, refd to. [para. 28].

R. v. MacDonald (1983), 42 A.R. 228; 24 Alta. L.R.(2d) 187 (C.A.), refd to. [para. 28].

R. v. Park (2003), 59 W.C.B.(2d) 389 (N.L. Prov. Ct.), refd to. [para. 28].

R. v. MacDougall, [1982] 2 S.C.R. 605; 44 N.R. 560; 54 N.S.R.(2d) 562; 112 A.P.R. 562; 142 D.L.R.(3d) 216, refd to. [para. 28].

R. v. Horseman, [1990] 1 S.C.R. 901; 108 N.R. 1; 108 A.R. 1, refd to. [para. 42].

R. v. Powley (S.) et al., [2003] 2 S.C.R. 207; 308 N.R. 201; 177 O.A.C. 201; 2003 SCC 43, refd to. [para. 43].

R. v. Smith, [1935] 3 D.L.R. 703; 64 C.C.C. 131 (Sask. C.A.), refd to. [para. 44].

R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 321; 133 D.L.R.(4th) 324, refd to. [para. 44].

R. v. Wolverine and Bernard, [1989] 3 C.N.L.R. 181; 74 Sask.R. 224 (C.A.), refd to. [para. 44].

R. v. Smith, [1970] 3 C.C.C. 83; 10 D.L.R.(3d) 759 (Yuk. Terr. Ct.), not folld. [para. 45].

R. v. Michel and Johnson (1983), 10 C.C.C.(3d) 314 (Yuk. C.A.), not folld. [para. 45].

R. v. Sundown (J.), [1999] 1 S.C.R. 393; 236 N.R. 251; 177 Sask.R. 1; 199 W.A.C. 1; 170 D.L.R.(4th) 385, refd to. [para. 49].

R. v. Catarat (H.) and Sylvestre (J.A.) (2001), 207 Sask.R. 57; 247 W.A.C. 57; 2001 SKCA 50, refd to. [para. 51].

R. v. Moosehunter, [1981] 1 S.C.R. 282; 36 N.R. 437; 9 Sask.R. 149; 123 D.L.R.(3d) 95, refd to. [para. 54].

R. v. Breaker (S.K.) (2000), 280 A.R. 201; 2000 ABPC 179, not folld. [para. 59].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241; 70 D.L.R.(4th) 385, refd to. [para. 60].

R. v. Eagle Child; R. v. Lefthand (2007), 77 Alta. L.R.(4th) 203; 2007 ABCA 206, leave to appeal denied (2008), 385 N.R. 392; 385 N.R. 393 (S.C.C.), refd to. [para. 60].

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) et al., [2005] 3 S.C.R. 388; 342 N.R. 82; 2005 SCC 69, refd to. [para. 61].

R. v. Lefthand (E.E.) (2004), 353 A.R. 52; 2004 ABPC 38, revd. (2005), 388 A.R. 231; 2005 ABQB 748, refd to. [para. 64].

R. v. Martin (D.R.) (2008), 436 A.R. 174; 2008 ABQB 29, refd to. [para. 64].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 66].

Counsel:

Thomas G. Rothwell (Alberta Justice), Aboriginal Law Services, for the respondent, Attorney General of Alberta;

Mark Mastel (Crown Prosecutor's Office);

Shawn Beaver (Beaver Leebody Frank & Simic), for the appellants.

These appeals were heard on September 7, 2012, by Thomas, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on January 14, 2013.