R. v. Morton (W.N.), (2009) 483 A.R. 226 (PC)

• Judge: LeGrandeur, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: November 13, 2009
• Citations: (2009), 483 A.R. 226 (PC);2009 ABPC 343

R. v. Morton (W.N.) (2009), 483 A.R. 226 (PC)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. NO.133

Her Majesty the Queen v. William Nelson Morton (081434151P101001; 2009 ABPC 343)

Indexed As: R. v. Morton (W.N.)

Alberta Provincial Court

LeGrandeur, P.C.J.

November 13, 2009.

Summary:

The accused was charged with possession of wildlife (big horn sheep) contrary to s. 55(1) of the Wildlife Act (Alta.).

The Alberta Provincial Court dismissed the charges because the Crown failed to convince the court that the accused was in possession of big horn sheep.

Fish and Game - Topic 1662

Offences - General - Possession of wildlife - What constitutes - The Alberta Provincial Court discussed the elements which had to be proven by the Crown to establish the offence of possession under the Wildlife Act (Alta.) - See paragraphs 33 to 44.

Fish and Game - Topic 1662

Offences - General - Possession of wildlife - What constitutes - The accused (a non-aboriginal) was charged with possession of a big horn sheep (Wildlife Act, s. 55(1)) - The accused claimed that he was storing the sheep's horns and skull cap for Fox, a Treaty Indian, in return for which he hoped to obtain the cape for a head he already owned - Fox had taken the cape to a taxidermy shop - The accused only learned of the cape's whereabouts sometime later when the shop called him regarding the cape's legal status - The Alberta Provincial Court dismissed the charges because the Crown failed to prove that the accused was in actual or constructive possession of big horn sheep - He never had actual personal possession of the skull cap and horns or the cape - He never saw or touched the items when Fox put them in his freezer - Nor did he see or touch the cape until he was instructed by a wildlife officer to take it to his residence for pick up - As to constructive possession, the accused exercised no control or power over the skull cap or horns and had no intention of doing so - He was simply storing them - The only time the accused knew he had some power or authority over the cape was after the shop called him, however, his attendance at the shop to discuss the legal status was not an exercise of control.

Fish and Game - Topic 1668

Offences - General - Possession of wildlife - Transportation or possession by non-Indian of wildlife taken by an Indian - The accused (a non-aboriginal) was charged with possession of a big horn sheep (Wildlife Act, s. 55(1)) - The accused denied that he was in possession of the sheep, and alternatively, if he was in possession, he was not guilty because the sheep had been gifted to him by an aboriginal who had legal possession of the sheep as a Treaty Indian - The Alberta Provincial Court dismissed the charges because the Crown did not prove possession - The court opined that had it been necessary for the court to determine the issue of gifting, the court would have needed to hear further argument - The court stated however that "With respect to the issue if there was no right of an aboriginal to gift wildlife to a non-aboriginal which allowed the non-aboriginal to lawfully possess the gift, then in that circumstance, it would be my view the belief that the aboriginal could so transfer lawful possession by gift to a non-aboriginal, leaving him in lawful possession of the same would appear prima facie to be a mistake of law which would offer no defence in that context to the accused" - See paragraphs 59 and 60.

Fish and Game - Topic 1700

Offences - General - Intent or mens rea - Offences of strict liability - The Alberta Provincial Court stated that "the Wildlife Act is not criminal legislation. Rather it is regulatory in nature and is to be interpreted purposefully and liberally in order to fulfill the objects of the legislation. The focus of the Wildlife Act concerns the protection of the public and societal interest in the preservation and conservation of our wildlife through the regulation of wildlife acquisition and possession. It is not criminal legislation that focuses on punishment of the individual's moral faults ... It is, nonetheless, penal in nature ... In the absence of the use of words such as knowingly, wilfully or intentionally in the legislation, regulatory offences are presumed not to be mens rea offences, although that does not preclude the Court from considering other factors in the determination of whether the offence is a mens rea or strict liability offence. In R. v. Great West Holdings Ltd. ... the Alberta Court of Appeal concluded that the offence of unlawful possession of wildlife set out in s. 55(1), with possession being defined in s. 1(3), is an offence of strict liability. Therefore, the Crown need not prove that the accused had knowledge of the unlawful character of the contraband ..." - The Alberta Provincial Court held that it was bound by the conclusion of the Court of Appeal in Great West Holdings Ltd. - See paragraphs 28 and 29.

Cases Noticed:

Committee for Equal Treatment of Asbestos Minority Shareholders v. Ontario (Securities Commission) - see Asbestos Corp., Société Nationale de l'Amiante and Quebec (Province), Re.

Asbestos Corp., Société nationale de l'Amiante and Quebec (Province), Re, [2001] 2 S.C.R. 132; 269 N.R. 311; 146 O.A.C. 201; 199 D.L.R.(4th) 577, refd to. [para. 28].

R. v. Great White Holdings Ltd. (2006), 384 A.R. 114; 367 W.A.C. 114; 2006 ABCA 48, refd to. [para. 29].

R. v. Roan, Brown and Sande (1985), 57 A.R. 296; 17 C.C.C.(3d) 534 (C.A.), refd to. [para. 36].

R. v. Arason (R.H.) and Derosier (G.L.) (1992), 21 B.C.A.C. 20; 37 W.A.C. 20; 78 C.C.C.(3d) 1 (C.A.), refd to. [para. 36].

R. v. Terrence, [1983] 1 S.C.R. 357; 47 N.R. 8; 4 C.C.C.(3d) 193, refd to. [para. 37].

R. v. Caldwell (1972), 7 C.C.C.(2d) 285 (Alta. C.A.), refd to. [para. 38].

R. v. Christie (1978), 21 N.B.R.(2d) 261; 37 A.P.R. 261; 41 C.C.C.(2d) 282 (C.A.), refd to. [para. 39].

R. v. Manuel, [2003] N.J. No. 75 (Nfld. Prov. Ct.), refd to [para. 40].

R. v. York (J.A.) (2005), 208 B.C.A.C. 184; 344 W.A.C. 184 (C.A.), refd to. [para. 41].

R. v. Glushek (1978), 9 A.R. 539; 41 C.C.C.(2d) 380 (C.A.), refd to. [para. 42].

R. v. Spooner (1957), 109 C.C.C. 57 (B.C.C.A.), refd to. [para. 42].

R. v. Hall (1959), 124 C.C.C. 238 (B.C.C.A.), refd to. [para. 43].

R. v. Mohamad (H.) (2004), 181 O.A.C. 201; 182 C.C.C.(3d) 97 (C.A.), refd to. [para. 44].

R. v. Harrison and Alonso (1982), 38 A.R. 304; 67 C.C.C.(2d) 401 (C.A.), refd to. [para. 44].

R. v. Steinhauer (K.) (1996), 187 A.R. 12; 127 W.A.C. 12 (C.A.), refd to. [para. 46].

R. v. Rijavec (M.); R. v. Dodginghorse (L.L.) (1997), 196 A.R. 318; 141 W.A.C. 318 (C.A.), refd to. [para. 46].

R. v. Guiney (1961), 130 C.C.C. 407 (B.C.C.A.), refd to. [para. 47].

R. v. Laukos, [2006] O.J. No. 2045 (C.J.), refd to. [para. 48].

R. v. Muise (W.T.) (2000), 227 N.B.R.(2d) 95; 583 A.P.R. 95 (T.D.), refd to. [para. 60].

R. v. Hayward, [2000] S.J. No. 172, refd to. [para. 60].

Statutes Noticed:

Wildlife Act, R.S.A. 2000, c. W-10, sect. 1(3) [para. 27]; sect. 55(1) [para. 25]; sect. 55(2), sect. 55(3) [para. 26].

Counsel:

D. Labrenz, for the Crown;

K. Nowicki, for the accused.

This case was heard on May 27 to 29, 2009, before LeGrandeur, P.C.J., of the Alberta Provincial Court, who delivered the following decision on November 13, 2009.