R. v. Shoemaker (H.), (2011) 382 Sask.R. 316 (PC)

• Judge: Morgan, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: December 06, 2011
• Jurisdiction: Saskatchewan
• Citations: (2011), 382 Sask.R. 316 (PC);2011 SKPC 182

R. v. Shoemaker (H.) (2011), 382 Sask.R. 316 (PC)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. DE.047

Her Majesty the Queen on the Information of R.L. Carlson, a peace officer v. Harold Shoemaker

(7283602; 2011 SKPC 182)

Indexed As: R. v. Shoemaker (H.)

Saskatchewan Provincial Court

Morgan, P.C.J.

December 6, 2011.

Summary:

The accused was charged under s. 41 of the Wildlife Act with hunting, without the landowner's consent, on lands posted with "no hunting" or similar signs. The accused's defence was that there were no signs posted on the boundary where he entered, he had no intention of hunting and that there was some question as to where the boundary of the land was.

The Saskatchewan Provincial Court found the accused guilty of hunting on posted land without consent.

Fish and Game - Topic 2301

Hunting offences - General principles - What constitutes hunting - The day after elk season opened, the accused, who had an elk licence, was seen on his neighbour's land with his rifle - The accused's land bordered the neighbour's land on the north - The accused entered on the western boundary which, unlike other boundaries, was not posted with "no hunting" signs - The neighbour did mark the boundary with surveyor's tape tied to trees - The accused was charged under s. 41 of the Wildlife Act with hunting, without the landowner's consent, on lands posted with "no hunting" or similar signs - The Saskatchewan Provincial Court found the accused guilty - Although the west boundary was not posted with "no hunting" signs, the accused knew that his neighbour had posted "no hunting" signs on other boundaries and conceded that he did not have consent to hunt - The accused had actual knowledge that hunting was not permitted on the neighbour's land - The court rejected the accused's argument that he had no intention of hunting; that he was just surveying some fallen trees - The accused was "hunting", even if the court accepted that he had no intention of "shooting" an elk on the neighbour's land - The court rejected the accused's submission that he was unclear as to whether he had crossed onto the neighbour's land, as the boundary was not clearly marked - Even if the court accepted that argument, the accused was the adjacent landowner, knew he was in the area of the neighbour's land and, in spite of being put on notice by the surveyor's tape clearly visible in the trees, failed to take reasonable steps to ensure that he did not enter the neighbour's land - Accordingly, the defence of due diligence was not made out.

Fish and Game - Topic 2386

Hunting offences - Hunting on posted land - Defences - [See Fish and Game - Topic 2301 ].

Cases Noticed:

R. v. Rutley (L.) et al. (2004), 252 Sask.R. 53; 2004 SKPC 85, refd to. [para. 11].

R. v. Eckel (T.P.) et al. (2007), 298 Sask.R. 197; 2007 SKPC 78, refd to. [para. 21].

Counsel:

L. O'Connor, for the Crown;

I. Carson, for the accused.

This matter was heard at Tisdale, Sask., before Morgan, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on December 6, 2011.