R. v. Legrande (R.H.) et al., (2014) 575 A.R. 355

• Judge: Paperny, Slatter and Brown, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: Friday May 30, 2014
• Citations: (2014), 575 A.R. 355;2014 ABCA 192

R. v. Legrande (R.H.) (2014), 575 A.R. 355; 612 W.A.C. 355 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. JN.027

Her Majesty the Queen (respondent) v. Randy Harold Legrande (appellant)

(1303-0035-A)

Her Majesty the Queen (respondent) v. Melvin Lorman Gauchier (appellant)

(1303-0036-A)

(2014 ABCA 192)

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

Alberta Court of Appeal

Paperny, Slatter and Brown, JJ.A.

June 6, 2014.

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, in a decision reported at 549 A.R. 354, dismissed the appeals. The accused appealed. At issue was the availability of a "mistake of fact" defence.

The Alberta court of Appeal held that the accused did not have a mistake of fact defence available to them and dismissed the appeal.

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 what those limits were 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 Appeal affirmed the decision - The accused were mistaken as to the legal characterization of the land on which they were hunting - They did not realize that, legally, the land was designated as a wildlife sanctuary and that any authorization that they had to hunt did not extend to that land - Their mistake was one of law, not fact - Further, the finding that any mistake was not reasonable demonstrated no reviewable error - See paragraphs 8 to 15.

Fish and Game - Topic 1700

Offences - General - Intention or mens rea - Offences of strict liability - 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 - 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 even if the mistake could be characterized as one of fact, it would not absolve the accused from liability - This was a strict liability offence - It was not reasonable for Legrande to hunt on the road in question 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 Metis Settlement - They had a duty to find out what those legal limits were 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 accused appealed, asserting that the trial judge conflated the defences of mistake of fact and due diligence - The Alberta Court of Appeal rejected the assertion, stating that "The due diligence defence relates 'to the fulfilment of a duty imposed by law and not in relation to the ascertainment of the existence of a prohibition or its interpretation' ... The alleged error here was in relation to the interpretation or scope of the prohibition on hunting in a wildlife sanctuary. Further, the trial judge's finding ... that the [accused] did not act reasonably is a mixed question of fact and law, which is entitled to deference. That conclusion is supportable on this record, and no reviewable error is disclosed." - See paragraph 16.

Fish and Game - Topic 2473

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

Trials - Topic 1102

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

Trials - Topic 1103

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

Trials - Topic 1172

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

Cases Noticed:

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 7].

R. v. Araujo (A.), [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 7].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 7].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 8].

Lévis (City) v. Tétreault, [2006] 1 S.C.R. 420; 346 N.R. 331; 2006 SCC 12, refd to. [para. 9].

La Souveraine, Compagnie d'assurance générale v. Autorité de marché financiers, [2013] 3 S.C.R. 756; 451 N.R. 113; 2013 SCC 63, refd to. [para. 9].

R. v. MacDonald (E.) (2014), 453 N.R. 1; 201 SCC 3, refd to. [para. 11].

R. v. Pendrak (B.M.) (2000), 273 A.R. 92; 2000 ABQB 862, refd to. [para. 11].

R. v. Chapin, [1979] 2 S.C.R. 121; 26 N.R. 289, dist. [para. 13].

R. v. Alphonse (W.) (1993), 29 B.C.A.C. 161; 48 W.A.C. 161; 80 B.C.L.R.(2d) 17; 83 C.C.C.(3d) 417 (C.A.), dist. [para. 13].

R. v. Molis, [1980] 2 S.C.R. 356; 33 N.R. 411, refd to. [para. 16].

Counsel:

T.L. Couillard, for the respondent;

S.A. Beaver, for the appellant.

This appeal was heard on May 30, 2014, by Paperny, Slatter and Brown, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment was delivered by the court at Edmonton, Alberta, on June 6, 2014.