R. v. Muise (W.T.), (2000) 227 N.B.R.(2d) 95 (TD)

• Judge: Glennie, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: February 24, 2000
• Jurisdiction: New Brunswick
• Citations: (2000), 227 N.B.R.(2d) 95 (TD)

R. v. Muise (W.T.) (2000), 227 N.B.R.(2d) 95 (TD);

    227 R.N.-B.(2e) 95; 583 A.P.R. 95

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2000] N.B.R.(2d) TBEd. MY.072

William T. Muise (appellant) v. Her Majesty The Queen (respondent)

(S/A/18/99)

Indexed As: R. v. Muise (W.T.)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Glennie, J.

May 19, 2000.

Summary:

Muise was convicted of unlawfully pos­sess­ing a moose carcass contrary to s. 58 of the Fish and Wildlife Act. He appealed his conviction.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the appeal.

Fish and Game - Topic 804

Indian, Inuit and Métis rights - General principles - Scope of rights - Game war­dens recovered 40 pounds of moose meat from Muise's freezer - Muise received the meat from a status Indian in return for his assistance in retrieving the moose and arranging for it to be butchered - Muise was charged with unlawfully possessing a moose carcass - The New Brunswick Court of Queen's Bench, Trial Division, stated that an aboriginal person's treaty right to trade the product of her hunt did not con­vey to a non-aboriginal purchaser or donee immunity from the law - That person had to comply with the Fish and Wildlife Act - See paragraphs 18 to 32.

Fish and Game - Topic 2431

Hunting offences - Possession of carcasses - Section 58 of the Fish and Wildlife Act provided that "[e]very person who at any­time has in his possession the carcass of a bear, moose or deer or any part there­of, except in accordance with this Act and the regulations, commits an offence." - The New Brunswick Court of Queen's Bench, Trial Division, held that s. 58 created a strict liability offence - See paragraph 68.

Fish and Game - Topic 2431

Hunting offences - Possession of carcasses - [See Fish and Game - Topic 804 ].

Fish and Game - Topic 2437

Hunting offences - Possession of carcasses - Defences - Game wardens recovered 40 pounds of moose meat from Muise's freez­er - Muise received the meat from a status Indian in return for his assistance in re­trieving the moose and arranging for it to be butchered - Muise was charged with unlawfully possessing a moose carcass - Muise thought he was exempt from the application of the Fish and Wildlife Act and did not have to do anything because he obtained the meat from an aboriginal person who showed him her status Indian card - The New Brunswick Court of Queen's Bench, Trial Division, held that Muise made a mistake at law - Further, the defence of officially induced error of law was not available because there was no evidence that Muise relied on the opin­ion or advice of an official who was re­spon­sible for the administration of the Act - See paragraphs 33 to 65.

Fish and Game - Topic 2437

Hunting offences - Possession of carcasses - Defences - Game wardens recovered 40 pounds of moose meat from Muise's freez­er - Muise received the meat from a status Indian in return for his assistance in re­trieving the moose and arranging for it to be butchered - The aboriginal person showed Muise her status Indian card - The New Brunswick Court of Queen's Bench, Trial Division, held that Muise failed to exercise due diligence - Due diligence would consist of Muise taking steps to obtain a transfer permit under s. 91(2) of the Fish and Wildlife Act or at the mini­mum calling the game warden's office or a branch of Natural Resources and making an inquiry - See paragraphs 48 to 75.

Fish and Game - Topic 2437

Hunting offences - Possession of carcasses - Defences - Game wardens recovered 40 pounds of moose meat from Muise's freez­er - Muise received the meat from a status Indian in return for his assistance in re­trieving the moose and arranging for it to be butchered - The trial judge convicted Muise for unlawfully possessing a moose carcass, holding that Muise was not in possession of a permit - Muise appealed, arguing that he could not have obtained a transfer permit to obtain meat from an aboriginal because no such permit existed at the time of the offence - The New Brunswick Court of Queen's Bench, Trial Division, held that Muise could not rely on the unavailability of the permit where he failed to inquire into what was necessary to take possession of moose meat from an aboriginal person - See paragraphs 76 to 83.

Fish and Game - Topic 2437

Hunting offences - Possession of carcasses - Defences - [See Fish and Game - Topic 804 ].

Trials - Topic 1107

Summary convictions - Defences - Offi­cially induced error of law - [See first Fish and Game - Topic 2437 ].

Trials - Topic 1166

Summary convictions - Strict liability offences - Elements of - The New Bruns­wick Court of Queen's Bench, Trial Divi­sion, stated that "[a]n offence of strict liability requires the minimal mental ele­ment of negligence in order to result in a conviction. Negligence consists in an un­reasonable failure to know the facts which constitute the offence or the failure to be duly diligent to take steps, which a reason­able person would take. Since ig­norance of the law is not an excuse for breaking the law, due diligence consists of taking steps to fulfill a duty imposed by law and not in the ascertainment of the existence of a statutory prohibition or its interpretation." - See paragraph 64.

Trials - Topic 1172

Summary convictions - Strict liability offences - Defence of due diligence or error of fact - [See second Fish and Game - Topic 2437 and Trials - Topic 1166 ].

Cases Noticed:

R. v. Marshall (D.J.) (1999), 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201 (S.C.C.), refd to. [para. 2].

R. v. Marshall (D.J.) (1999), 247 N.R. 306; 179 N.S.R.(2d) 1; 553 A.P.R. 1 (S.C.C.), refd to. [para. 4].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295; 40 C.C.C.(2d) 353; 85 D.L.R.(3d) 161; 3 C.R.(3d) 30; 7 C.E.L.R. 53, refd to. [para. 18].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241; 56 C.C.C.(3d) 263, refd to. [para. 21].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81; 109 C.C.C.(3d) 1, refd to. [para. 22].

R. v. Nikal (J.B.), [1996] 1 S.C.R. 1013; 196 N.R. 1; 74 B.C.A.C. 161; 121 W.A.C. 161; 105 C.C.C.(3d) 481, refd to. [para. 23].

Hay River (Town) v. Canada (1979), 101 D.L.R.(3d) 184 (F.C.T.D.), refd to. [para. 25].

Pas Merchants Ltd. v. Canada, [1974] 2 F.C. 376 (T.D.), refd to. [para. 25].

R. v. Molis, [1980] 2 S.C.R. 356; 33 N.R. 411; 55 C.C.C.(2d) 558, refd to. [para. 33].

R. v. Jones and Pamajewon, [1991] 3 S.C.R. 110; 137 N.R. 321; 66 C.C.C.(3d) 512, refd to. [para. 35].

R. v. Cancoil Thermal Corp. and Parkinson (1986), 14 O.A.C. 225; 52 C.R.(3d) 188; 27 C.C.C.(3d) 295 (C.A.), refd to. [para. 39].

R. v. Wholesale Travel Group Inc. and Chedore, [1991] 3 S.C.R. 154; 130 N.R. 1; 49 O.A.C. 161; 67 C.C.C.(3d) 193; 8 C.R.(4th) 145, refd to. [para. 42].

Woodworth v. New Brunswick (1993), 140 N.B.R.(2d) 103; 358 A.P.R. 103 (T.D.), refd to. [para. 43].

R. v. Campbell (1989), 96 N.B.R.(2d) 234; 243 A.P.R. 234 (T.D.), refd to. [para. 50].

R. v. Chapin, [1979] 2 S.C.R. 121; 26 N.R. 289, refd to. [para. 50].

R. v. Pontes (P.), [1995] 3 S.C.R. 44; 186 N.R. 81; 62 B.C.A.C. 241; 103 W.A.C. 241, refd to. [para. 52].

R. v. Andsten (1960), 128 C.C.C. 311 (B.C.C.A.), refd to. [para. 59].

Libbey Canada Inc. v. Ontario (Minister of Labour) and Hoy (1995), 86 O.A.C. 289; 26 O.R.(3d) 125 (Div. Ct.), refd to. [para. 62].

R. v. Forster, [1992] 1 S.C.R. 339; 133 N.R. 333, refd to. [para. 63].

R. v. Paget (F.A.), [1998] N.B.R.(2d) Uned. 70 (Prov. Ct.), refd to. [para. 69].

R. v. Courtaulds Fibres Canada (1992), 76 C.C.C.(3d) 68 (Ont.C.J. Prov. Div.), refd to. [para. 70].

R. v. Wilson (R.) (1997), 191 N.B.R.(2d) 307; 488 A.P.R. 307 (C.A.), refd to. [para. 72].

Statutes Noticed:

Fish and Wildlife Act, S.N.B. 1980, c. F- 14.1, sect. 58 [para. 19]; sect. 91(2) [para. 3]; sect. 111 [para. 66].

Counsel:

Michael L. McCluskey, for the appellant;

J.T. Keith McCormick, for the respondent.

This appeal was heard on February 24, 2000, by Glennie, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following judgment on May 19, 2000.