R. v. Nordstrom (C.D.), 2011 SKPC 166

• Jurisdiction: Saskatchewan
• Court: Provincial Court of Saskatchewan (Canada)
• Judge: Kaiser, P.C.J.
• Citation: 2011 SKPC 166,(2011), 379 Sask.R. 1 (PC)
• Date: 28 October 2011
• Subject Matter: CRIMINAL LAW,FISH AND GAME,TRIALS,ANIMALS

R. v. Nordstrom (C.D.) (2011), 379 Sask.R. 1 (PC)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. NO.062

Her Majesty the Queen v. Carlin Darcey Nordstrom

(Information Nos. 24163588; 24168333; 24164583; 2011 SKPC 166)

Indexed As: R. v. Nordstrom (C.D.)

Saskatchewan Provincial Court

Kaiser, P.C.J.

October 28, 2011.

Summary:

Nordstrom was a status Treaty 6 Indian and member of the Poundmaker First Nation. He owned Cree Nation Outfitters Ltd., which operated an enclosed area hunting business (elk and white-tailed deer) on Reserve land in Saskatchewan. The clientele were Americans. Nordstrom purported to operate under the authority of the First Nation's bylaws. He was charged with offences under Canada's Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, and under Saskatchewan's Wildlife Act. An obstruction charge was also laid (Criminal Code, s. 129). Almost all of the 24 charges alleged that Nordstrom did some act without the lawful authority to do it, e.g., exporting or importing wildlife without a permit or licence.

The Saskatchewan Provincial Court determined each of the charges.

Animals - Topic 605

Licenses - Game farms - [See Fish and Game - Topic 804 ].

Animals - Topic 7005

Offences - General - Regulatory offences - [See Fish and Game - Topic 804 ].

Animals - Topic 7006

Offences - General - Strict liability offences - [See Fish and Game - Topic 6148 ].

Animals - Topic 7015

Offences - General - Defences - Due diligence - [See first Fish and Game - Topic 1700 ].

Animals - Topic 7043

Offences - Particular offences - Unlawful transportation of animals - [See Fish and Game - Topic 804 ].

Criminal Law - Topic 212

General principles - Common law defences - Officially induced error of law - [See second Fish and Game - Topic 1700 ].

Fish and Game - Topic 3

General principles - Legislation - Interpretation and application - The Saskatchewan Provincial Court discussed the mutual purpose and regulatory nature of the Wildlife Act of Saskatchewan, and the Federal Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act - See paragraphs 74 to 76.

Fish and Game - Topic 3

General principles - Legislation - Interpretation and application - [See Fish and Game - Topic 5821 ].

Fish and Game - Topic 804

Indian, Inuit and Métis rights - General principles - Scope of rights - General - The accused, a Treaty 6 Indian, was charged with offences under Canada's Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, and under Saskatchewan's Wildlife Act - Almost all of the 24 charges alleged that the accused did some act without the lawful authority to do it, i.e., possessed, imported, exported and transported wildlife without a permit or licence - The Saskatchewan Provincial Court determined the regulatory issues surrounding the power or lack thereof of a First Nations person to possess, import into Saskatchewan, export from Saskatchewan or Canada, and transport elk or white-tailed deer or their parts where the animals were raised or kept in captive or domestic circumstances.

Fish and Game - Topic 806.1

Indian, Inuit and Métis rights - General principles - Limitations - Licensing - [See Fish and Game - Topic 804 ].

Fish and Game - Topic 806.1

Indian, Inuit and Métis rights - General principles - Limitations - Licensing - The accused, a member of the Poundmaker First Nation, did not hold a provincially issued domestic game farm license, but purported to operate under the authority of one or more bylaws made by the First Nation - The Saskatchewan Provincial Court found nothing in the bylaws that were in conflict with the importing and exporting provisions of Saskatchewan's Wildlife Act (s. 31) - The words "import" and "export" in the bylaws were references to crossing the boundaries of the First Nation, and did not refer to the boundaries of Saskatchewan or Canada - If that interpretation was incorrect, the bylaws' provisions were probably unconstitutional in that they purported to operate in an extra-territorial way - If they were constitutional, they still were not in conflict with provincial or federal law, in that they did not purport to supercede provincial or federal licencing requirements, but were merely additional requirements - See paragraphs 162 to 165.

Fish and Game - Topic 809

Indian, Inuit and Métis rights - General principles - Aboriginal or treaty rights - Proof of - The accused, a Treaty 6 Indian, submitted that he had a right to use Reserve land to carry on a hunt farm - That right was not expressed on the face of the Treaty - The Saskatchewan Provincial Court stated that "a person who asserts a Treaty right that is not readily apparent on the face of the Treaty, bears the burden of establishing that such a right exists. Such a right would have to be established by reference to the intentions of the signatories of the Treaty, with special emphasis on the understanding of the Indians. Generally such cases involve historical evidence as to the circumstances surrounding the signing of the Treaty ... [T]he obligation to present evidence falls to the party asserting that the non-evident Treaty right exists" - In the case at bar, there was no evidence before the court that assisted with the matter of intention - See paragraph 152.

Fish and Game - Topic 886

Indian, Inuit and Métis rights - Hunting by Indians on reserves - Treaty rights - Status of - The accused, a Treaty 6 Indian, argued that he had a Treaty right to use Reserve land to carry on a hunt farm operation and an incidental Treaty right to import and export wildlife for the purposes of carrying on the hunt farm - The Crown argued that the Treaty-based argument was an inappropriate collateral attack on the import and export provisions of the Wildlife Act (Sask.); i.e., that the accused should have challenged the provisions in civil proceedings rather than by committing alleged offences and then arguing that the activity was Treaty protected - The Saskatchewan Provincial Court rejected the argument in the circumstances - To deny the accused the opportunity to present such a defence might result in an unfair conviction - The accused had hoped to avoid conflict with the law altogether so that he could carry on his business - He did not deliberately break the law for the sole purpose of challenging the legislation - See paragraphs 136 to 140.

Fish and Game - Topic 886

Indian, Inuit and Métis rights - Hunting by Indians on reserves - Treaty rights - Status of -The accused carried on a hunt farm operation on lands covered by Treaty 6 - He submitted that, as a Treaty 6 Indian, he had the Treaty right to use the Reserve land in whatever way he saw fit, subject only to the limitation that such use could not be irreconcilable with the nature of the group's attachment to the land - The Saskatchewan Provincial Court examined the hunt farm operation, including that other Band members did not have any significant access to or use of the fenced land, and concluded that the activity was not hunting in the sense that the word was used in the Treaty - "In the Treaty sense, the animals taken are those that occur naturally on the land and are nourished by it, as opposed to those that are brought to the land so that they may be killed for sport" - The operation was also not farming - The purpose of the operation was to provide income to the accused by providing an experience resembling hunting to a non-Indian who was prepared to pay for it - See paragraphs 141 to 151.

Fish and Game - Topic 886

Indian, Inuit and Métis rights - Hunting by Indians on reserves - Treaty rights - Status of -The accused, a Treaty 6 Indian, argued that he had a Treaty right to use Reserve land to carry on a hunt farm operation and an incidental Treaty right to import and export wildlife for the purposes of carrying on the hunt farm - The Crown asserted that s. 12 of the Natural Resources Transfer Agreement (N.R.T.A.) extinguished commercial rights to hunt on Reserve - The Saskatchewan Provincial Court was satisfied that land use, so far as it involved hunting, was addressed by s. 12 of the N.R.T.A. and that commercial hunting on or off Reserve was not Treaty protected - The accused's activity was not hunting in the Treaty sense, and not in the sense that the word was used in s. 12 - The whole point of that provision was to secure a continuing supply of game for Indians - The animals that the non-Indians were taking on the accused's hunt farm would not have been available to Indians regardless of whether or not the hunt farm operated - Operation of the hunt farm was a commercial activity, but it was not hunting in the Treaty sense or in the sense of the N.R.T.A. - See paragraphs 153 to 157.

Fish and Game - Topic 886

Indian, Inuit and Métis rights - Hunting by Indians on reserves - Treaty rights - Status of -The accused, a Treaty 6 Indian, carried on a hunt farm operation on lands covered by Treaty 6 - He was charged with importing and exporting wildlife into and from Saskatchewan or Canada without a permit - The accused submitted that he had the Treaty right to use the Reserve land in whatever way he saw fit, subject only to the limitation that such use could not be irreconcilable with the nature of the group's attachment to the land - The Saskatchewan Provincial Court held that the accused had no defence to the charges based on a Treaty right - There was no Treaty right to use Reserve land for hunt farm activities of the kind described in this case - The outcome of the accused's argument was that Reserve land would be an enclave - An "enclave theory" had been consistently rejected by the courts on many occasions - The result was that the vast majority of provincial laws did apply on Reserve land - The alleged Treaty right could not co-exist with the rejection of the enclave theory - In any event, the court would not have found an incidental right to import and export domestic game farm animals or any other form of wildlife - There would still have to be historical evidence to support the asserted right and the incidental right - See paragraphs 157 to 161.

Fish and Game - Topic 1700

Offences - General - Intent or mens rea - Offences of strict liability - Almost all of the charges alleged that the accused did some act without the lawful authority to do it, e.g., exporting or importing wildlife without a permit or licence - At issue was whether the defence of due diligence applied to the strict liability charges - In the circumstances, this would require proof on a balance of probabilities that the accused believed that he had all required permits of importing, exporting or transporting as the case might be - The Saskatchewan Provincial Court held that the defence of due diligence did not apply - The accused knew he did not have the permits and he knew that the authorities were not about to grant them to him - The fact that he felt that the authorities were wrong or unfair, or that the law was unfair or wrong, did not afford him a defence - Also, the defence was based on a mistake of fact - A mistake of law did not fall within that concept - See paragraphs 77, 166 and 167.

Fish and Game - Topic 1700

Offences - General - Intent or mens rea - Offences of strict liability - Almost all of the charges alleged that the accused did some act without the lawful authority to do it, e.g., exporting or importing wildlife without a permit or licence - The Saskatchewan Provincial Court held that a defence based upon officially induced error was not available to the accused - The accused suffered from a number of serious mistakes of law, including the belief that an Indian Reserve was an enclave where provincial law did not apply, and perhaps the belief that satisfying the requirements for importing into the United States, meant that he did not have to comply with the requirements for exporting from Canada - Even with those various mistakes, the defence was not available to the accused, because, among other things, he had not established that he obtained the advice from an appropriate official - See paragraphs 168 and 169.

Fish and Game - Topic 2305

Hunting offences - General principles - Wildlife - What constitutes - The accused operated an enclosed area hunting business in Saskatchewan - He kept elk and white-tailed deer for the purpose of producing products such as meat, hide, and antlers - The animals were bred, born, raised, and ultimately killed in captivity - "Wildlife" was defined in the Wildlife Act as meaning "a vertebrate animal of any species, excluding fish, that is wild by nature in Saskatchewan and includes: ..." - The accused argued that domestic game farm animals were not "wildlife" because they were not wild by nature - The Saskatchewan Provincial Court did not agree - The adjective phrase "wild by nature" modified the word "species" and not the word "animal" - Therefore, "we look not to the circumstances of the individual animal, but rather to the circumstances of the species to which that animal pertains. If the species exists as a wild species in nature in Saskatchewan, the individual animal falls within the definition of wildlife" - In the end result, the court found that both elk and while-tailed deer were "wildlife", regardless of whether or not they were domestic game farm animals - See paragraphs 78 to 81.

Fish and Game - Topic 5821

Exportation and importation - Exportation - General - The accused was charged with exporting offences under s. 6(2) of Canada's Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act (WAPPRIITA) - The Saskatchewan Provincial Court discussed how s. 8(2) of the WAPPRIITA's Regulations affected s. 6(2) - On a plain reading of s. 8(2), a person was exempted from holding a provincial permit if that person was exporting an animal out of a province that had the two following characteristics - First, the province did not prohibit the transportation in question - Saskatchewan did not prohibit transportation out of Saskatchewan of either species at issue in this case (elk and white-tailed deer) - Section 31 of Saskatchewan's Wildlife Act regulated such transportation (a permit and paying royalties) - Second, the province had to be one to which either s. 8(2)(a) or (b) applied - Section 8(2)(a) applied to Saskatchewan, i.e., the province authorized such transportation - "[Section] 8(2) operates regardless of whether or not the exporting person actually obtains the provincial permit or certificate. ... In essence, WAPPRIITA leaves enforcement of provincial controls on export of these animals exclusively to the provincial legislation, unless the province has prohibited the subject export completely" - The court found support for that interpretation in other aspects of WAPPRIITA and its Regulations - In the end result, the court concluded that the exporting offence in s. 6(2) had no application to the exporting out of Canada of deer or elk from within Saskatchewan, and dismissed those charges - See paragraphs 128 to 135.

Fish and Game - Topic 5825

Exportation and importation - Exportation - Permits - Issue of - The accused, a member of the Poundmaker First Nation, operated a hunt farm located on First Nation land - The clientele were Americans - The accused was charged under s. 31 of the Wildlife Act (Sask.) of exporting wildlife without a domestic game farm licence - The Saskatchewan Provincial Court considered the provincial requirements that had to be met for the lawful export of domestic game farm animals or their products, and for the lawful export of free range big game animals or their products - See paragraphs 93 to 122.

Fish and Game - Topic 5825

Exportation and importation - Exportation - Permits - Issue of - The Saskatchewan Provincial Court held that a permit was required under provincial legislation and regulation for export of domestic game farm animals from Saskatchewan, within the meaning of that concept in s. 7(1) of Canada's Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act - First, they were "wildlife" - Hence, s. 31(1)(a) of the Wildlife Act (Sask.) required a licence unless the person was exempted by the phrase "Subject to the regulations" - The words "permit" and "licence" were interchangeable - Only s. 13 of the Captive Game Regulations exempted a person from obtaining a licence, and that was available only to a domestic game farmer who held a licence to operate the game farm - Game farms operated on a First Nation under approved bylaws might also export without obtaining any other licence - No evidence was led that any game farm in Saskatchewan was operating in that way - Further, pursuant to s. 11 of the Wild Animal and Plant Trade Regulations, if the export of the item required a provincial permit, and one was obtained, there was an exemption - See paragraphs 123 to 127.

Fish and Game - Topic 5845

Exportation and importation - Importation - Licence - Issue of - The accused, a member of the Poundmaker First Nation, operated a hunt farm on Reserve land - During the relevant period, the accused had imported two live white-tailed deer into Saskatchewan from Alberta - He took the position that he was not required to obtain an import licence (Wildlife Act, s. 31(1)(b)) because he was importing the deer to the First Nation, under a federally authorized transport permit - The Saskatchewan Provincial Court held that the accused's position could not be sustained - First, one could not get to the First Nation without going through other parts of Saskatchewan - Second, the First Nation was a part of Saskatchewan - The requirement of a transport permit was separate from the requirement for a licence - Further, the accused could have become provincially licenced to operate his hunt farm - If he had, and if he complied with the Domestic Game Farm Animals Regulations, he could have obtained a licence for import - Alternatively, if the First Nation had enacted an appropriate bylaw, and had the accused complied with it, he could have obtained an import licence - See paragraphs 87 to 92.

Fish and Game - Topic 6148

Offences - Practice - Evidence and proof - Burden of proof on accused - Charges against the accused were brought under Canada's Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, and under Saskatchewan's Wildlife Act - The Crown proceeded summarily - Almost all of the charges alleged that the accused did some act without the lawful authority to do it, e.g., exporting or importing wildlife without a permit or licence - The Saskatchewan Provincial Court held that s. 794(2) of the Criminal Code applied to the charges, i.e., the burden of proving that an exception, exemption, proviso, excuse or qualification prescribed by law operated in favour of the accused was on the accused - Section 68(2) of the Wildlife Act also applied to the charges under that Act - "Once the Crown proves the exporting of wildlife beyond a reasonable doubt, it will fall to the accused to establish, on a balance of probabilities that he did have a licence or that he falls within one of the exceptions, exemptions or provisos that may be found in the regulations" - See paragraphs 82 to 86.

Indians, Inuit and Métis - Topic 4409.1

Treaties and proclamations - General - Limitations on - [See fourth Fish and Game - Topic 886 ].

Indians, Inuit and Métis - Topic 4418

Treaties and proclamations - General - Incompatibility with provincial legislation - [See fourth Fish and Game - Topic 886 ].

Indians, Inuit and Métis - Topic 6005

Aboriginal rights - Nature and scope of - [See Fish and Game - Topic 804 ].

Indians, Inuit and Métis - Topic 6012

Aboriginal rights - Evidence and proof - [See Fish and Game - Topic 809 ].

Trials - Topic 1110

Summary convictions - Defences - Burden of proof - [See Fish and Game - Topic 6148 ].

Trials - Topic 1172

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

Words and Phrases

Wildlife - The Saskatchewan Provincial Court determined that both elk and white-tailed deer were "wildlife" within the meaning of the Wildlife Act, S.S. 1998, c. W.13.12, regardless of whether or not they were domestic game farm animals - See paragraphs 78 to 81.

Cases Noticed:

R. v. Marsland (J.C.) (2008), 326 Sask.R. 147; 2008 SKPC 148; revd. (2011), 374 Sask.R. 255; 2011 SKQB 207, consd. [paras. 65, 89].

R. v. Hayworth (K.W.) et al. (2003), 231 Sask.R. 204; 2003 SKPC 52, consd. [para. 76].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 77].

Berg et al. v. Saskatchewan (Minister of Environment and Resource Management) (2003), 243 Sask.R. 29; 2003 SKQB 456; (2004), 254 Sask.R. 177; 336 W.A.C. 177; 2004 SKCA 136, consd. [para. 79].

R. v. Shawaga (W.B.) (2008), 313 Sask.R. 107; 2008 SKPC 35, refd to. [para. 84].

R. v. Ukrainetz (K.) (2011), 373 Sask.R. 185l 2011 SKQB 154, refd to. [para. 85].

R. v. Kelley (K.) (2007), 413 A.R. 269; 71 Alta. L.R.(4th) 233; 2007 ABQB 41, refd to. [para. 107].

R. v. Lefthand - see R. v. Eaglechild; R. v. Lefthand.

R. v. Eaglechild; R. v. Lefthand (2007), 77 Alta. L.R.(4th) 203; 2007 CarswellAlta 850; 2007 ABCA 206, leave to appeal denied (2008), 385 N.R. 392; 454 A.R. 176; 455 W.A.C. 176 (S.C.C.), consd. [para. 137].

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 70 D.L.R. (4th) 427, refd to. [para. 152].

Cardinal v. Alberta (Attorney General), [1974] S.C.R. 695, refd to. [para. 153].

R. v. Charles (M.A.), [1998] 1 W.W.R. 515; 159 Sask.R. 126, refd to. [para. 154].

R. v. Keepness (D.), [2001] 2 C.N.L.R. 240; 204 Sask.R. 200; 2001 SKQB 115, refd to. [para. 154].

R. v. Sundown (J.), [1999] 1 S.C.R. 393; 236 N.R. 251; 177 Sask.R. 1; 199 W.A.C. 1, refd to. [para. 160].

Lévis (City) v. Tétreault, [2006] 1 S.C.R. 420; 346 N.R. 331; 2006 SCC 12, refd to. [para. 168].

Statutes Noticed:

Animal Products Act, R.S.S. 1978, c. A-20.2 (Supp.), generally [paras. 14, 70, 122].

Animal Products Act Regulations (Sask.) - see Domestic Game Farm Animals Regulations.

Captive Wildlife Regulations, sect. 13 [paras. 69,101].

Criminal Code, R.S.C. 1985, c. C-46, sect. 794(2) [para. 82]; sect. 129 [para. 186].

Domestic Game Farm Animals Regulations, generally [paras. 14]; sect. 2(e)(I), sect. 2(j), sect. 2(p), sect. 9, sect. 15(1), sect. 17(1), sect. 18(2), sect. 20 [para. 70].

Natural Resources Transfer Agreement, 1930, art. 12 [para. 153].

Treaty No. 6, 1876, generally [para. 141].

Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, R.S.C. 1992, c. 52, sect. 7(1) [para. 123].

Wild Animal and Plant Trade Regulations, sect. 8 [para. 129]; sect. 11 [para. 124].

Wildlife Act, S.S. 1998, c. W-13.12, sect. 9, sect. 31, sect. 33 [para. 67].

Wildlife Act Regulations (Sask.) - see Captive Wildlife Regulations (Sask.); Wildlife Regulations (1981) (Sask.).

Wildlife Regulations (1981) (Sask.), sect. 3, sect. 31(6), sect. 46, sect. 51 [para. 68].

Counsel:

Inez Cardinal, Q.C., for the Crown;

R. James Fyfe, for the Attorney General of Saskatchewan;

G. Rangi Jeerakathil, for the accused.

This case was heard at North Battleford, Saskatchewan, before Kaiser, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment, dated October 28, 2011.