R. v. Webb

R. v. Webb Court Provincial Court Date 2016-02-19 Citation 2016 NSPC 13 Docket 3805710 Judge/Registrar/Adjudicator Ross, A. Peter (Honourable Judge) Document Type Decision Decision Content PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Webb, 2016 NSPC 13 Date: 2016-02-19 Docket: 2805710 Registry: Sydney Her Majesty the Queen v. Larry Edward Webb Judge: The Honourable Judge A. Peter Ross Heard: October 15 and November 10, 2015 at Sydney, Nova Scotia Decision February 19, 2016 Charges: Sections 113, 79, 40(3), 26 of the Wildlife Act of Nova Scotia Counsel: Darcy MacPherson, for the Crown David Ianetti, for the Defendant Summary The Defendant and three friends went on a moose-hunting expedition to Cape Breton. Only one of them was legally entitled to hunt moose at that time, it being admitted for the purpose of the trial that he was a native person with an aboriginal right. They set up a camp. On the second day the native person shot a moose using the Defendant’s rifle. The Defendant provided certain other assistance. The meat was immediately taken to a butcher. Two days later the party left the highlands of Cape Breton to return to their homes on the mainland. They were in two vehicles. The moose antlers had been placed in a trailer hauled by the Defendant’s vehicle. His rifle was in the back seat. The police stopped the vehicle for a possible seatbelt violation, but then, on seeing the hunting paraphernalia, proceeded to investigate possible hunting violations. The Defendant made certain admissions. He was charged with illegal hunting (two counts under different sections of the Wildlife Act), unlawful possession of a rifle in wildlife habitat, and unlawful possession of a part of a carcass. The Defendant acknowledged, at roadside and at trial, that he had no licence to hunt moose. He testified to having the necessary permissions to hunt coyotes, but professed that he had not hunted at all. In the midst of the trial the Crown moved to amend the place of the offences from the place where the vehicle was stopped (Wagmatcook) to the place where it alleged the hunting actually occurred (the highlands of Cape Breton). It also moved to change the date of the offence from the day of the stop to the days previous in the week, when the group was actually in camp. Issues: Should the amendment be permitted to conform to the evidence, per s.601 of the Criminal Code? Is the offender guilty as a secondary party to the offences of illegal hunting, given that the principal had a defence of aboriginal right and could not have been convicted of the offence? Does the evidence suffice to prove the offender in possession of the carcass? Was the offender’s possession of the rifle proven to be unlawful, given that an element of that offence was possession in a wildlife habitat? Result: Unlike most offences in the Criminal Code or elsewhere, this particular offence of unlawful possession of the rifle, under the Wildlife Act, is place-dependent. Place is an essential element of the charge. Prejudice would result in a late amendment to have the charge conform to the evidence. The motion to amend was refused on this charge, but permitted on the hunting infraction. The actions of the Defendant, in all the circumstances, given the definition of hunting in the Wildlife Act, made him a party. The fact that the principal could not be convicted is of no avail to the Defendant, nor is any aboriginal right which the principal may have possessed. The two illegal hunting offences overlapped and so a conviction is entered on one only. The principal retained effective control of the antlers. Given that the party was acting in tandem, transporting their belongings in two vehicles travelling together, the Defendant was found not to have taken possession of them and is found not guilty. With the refusal to amend the charge of unlawfully possessing the rifle, with no proof that Wagmatcook was wildlife habitat, a finding of not guilty is entered. Additionally, there is scant evidence that the Defendant himself had actual possession of the item during the time he was in the highlands, an area proven to be wildlife habitat. By the Court: [1] The Defendant, Larry Edward Webb is charged with the following offences, at or near Wagmatcook, Nova Scotia, on or about October 10, 2014: 1. did unlawfully hunt moose without a valid Moose Hunting Licence or valid companion moose hunting stamp, contrary to s.4(5) of the Moose Hunting Regulations made under s.113 of the Wildlife Act 2. did unlawfully possess a firearm, contrary to s.79 of the Wildlife Act 3. did unlawfully possess parts of a member of the deer family contrary to s. 40(3) of the Wildlife Act 4. did unlawfully hunt wildlife without a valid hunting licence or permit contrary to s.26 of the Wildlife Act. At trial Crown moved to amend the time and place of the offences to “the highlands of Cape Breton”, “on or about October 7, 2014”. The motion was granted in part. the facts [2] On Sunday, October 5, 2014 a party of four left Mt. Uniacke, Nova Scotia, and headed for the Highlands of Cape Breton to hunt moose. They were Larry Webb (the Defendant), Randy Frederick, George McIsaac and Les Denny. They travelled in two vehicles, one being the Defendant’s. Each vehicle had a trailer. Between them they carried hunting apparatus, an all-terrain vehicle (ATV) and gear to make a camp. In Mr. Webb’s words they had “different stuff one uses if you’re lucky enough to get a moose.” [3] The Defendant packed his gun, a 30.06 Remington, and ammunition. For these he had a valid licence and registration. He testified that because of two artificial knees he cannot walk in the woods, and so was acting as “George’s chauffeur”, as he had for the previous 3 years. He said “I brought the gun because George was saying he was having trouble with the trigger on his.” [4] They entered the Highlands on the so-called “Highlands Road” on Hunter’s Mountain. They drove about 35 minutes in, and set up camp. [5] Les spent most of his time taking pictures from the ATV. He had no firearm, nor did Randy (the only one of the party who did not testify at trial). According to Les, “Larry mostly drove us around.” The defendant confirmed this, saying “I drove George around; I was the driver.” He said that Les sometimes “calls” moose. Randy was the cook. [6] George McIsaac was 72 years old. George, to the Defendant’s knowledge and belief, and to his own, possessed an aboriginal right to hunt moose. On Monday he spotted a moose in a bog, but his gun jammed. Upon hearing this, the Defendant offered his as a replacement. [7] Tuesday, using the Defendant’s rifle, George shot a bull moose. The Defendant did not “enter the woods” (as George put it) and did not carry a firearm. Les took some pictures. They hooked the carcass to the Defendant’s truck with ropes and pulleys and the Defendant hauled it out of the bog. They took it to their camp in the utility trailer, cleaned it, and put the meat in Randy’s truck. On Wednesday Randy and George transported it to a meat-cutter in Elmsdale, about a six hour drive, returning the same day. On Thursday they began to take down camp and on Friday they all departed for home. George went with Randy in the first vehicle. Les went with the Defendant in the second. This vehicle had the moose antlers on board because there was no room for them on the back of Randy’s truck. [8] Around noon, near the community of Wagmatcook on the Trans Canada Highway, Constable Kuchta stopped the second of the two vehicles, driven by the Defendant, because he was not wearing a seatbelt. He had a medical exemption for this, but the encounter did not end there. Constable Kuchta’s attention was also drawn to the antlers and other hunting paraphernalia. [9] On questioning the Defendant made the following statements to Const. Kuchta, as reported at trial by one or both of them: • they were coming from hunting in the highlands • he was hunting with Greg (now known to be George) • he was not hunting with George, was just ‘with him’ • they took the moose to the mainland a few days ago • they just went back to get their gear • the rifle in the back seat was his • he and no licence to hunt moose or bear • he only brought his rifle in case George’s jammed • they were at Hunter’s mountain • he was up helping George who is ahead of us • the antlers were George’s [10] George and Randy, seeing that the Defendant’s vehicle had been stopped, waited a short distance up the highway. Soon after they got a call from the Defendant to “come back and straighten this out”. [11] Constable Kuchta detained the party until a Conservation Officer arrived. Officer Toney, also an “aboriginal liaison officer”, then spoke to the Defendant and to George. Officer Toney knew that the moose-hunting season had started but ascertained that the Defendant did not have a moose-hunting licence. The Defendant failed to produce one, either at the scene or at trial. Toney seized the rifle, ammo, and antlers and charged the Defendant with the instant offences. [12] George was carrying a so-called “ATRA Passport identification card”. He testified that this card, issued by the Native Council of Nova Scotia, was recognized by the provincial and federal governments as conferring an aboriginal right to hunt. He said he was a “non-status native”, one who did not belong to a Band but who nevertheless possessed such rights. As such the usual requirements for licences, etc. in the Wildlife Act and Regulations would not (so he claimed) apply to him. He hunted only in accordance with “tags” issued to him by the Native Council. At trial he produced his A.T.R.A. Passport, issued February 9, 2012, bearing his photograph, the signature of the Chief and President of the Native Council, imprinted with the “seal of the Netukulimkewe’l Commission”, and stating that George B. McIsaac, d.o.b. July 25, 1941, was a “citizen of the Nationlmouw and entitled to all privileges and immunities thereto appertaining.” [13] For his part the Defendant produced, at trial, a hunting and fur-harvesting licence card bearing a “2014 wildlife habitat stamp” and card ID # 672043754, issued by Natural Resources, Nova Scotia, bearing date “03/10/14,15. This appears to mean October 3rd, and so it was in effect on the day in question. He testified that this stamp permitted him to hunt coyotes year-round, that Department officials told him that this was “a licence for coyotes” and that “you can shoot all the coyotes you want”. The document also bore a “general resident deer” stamp with date October 28, 2014. The Defendant said this deer licence “starts on that date.” Shown the document in court, Officer Toney confirmed that it would licence the Defendant to hunt deer, but only when the deer hunting season started on October 28th. He did not speak about the coyotes. [14] The Defendant is a seasoned hunter. He testified that he had a special exemption to fire a gun from a vehicle (though not from a public highway). In support he produced a “Wildlife Resources Card”, bearing a unique ID number, which on its face expired on December 31, 2010. He said that the Department had not renewed these cards, that “everyone’s had expired”, but that the card would nevertheless permit conservation officers to confirm the exemption. [15] Licences, stamps and exemptions aside, the Defendant said “I did not consider myself to be hunting anything . . . I took (the rifle) because of George’s problem with his gun.” [16] I find that all the witnesses were open and honest with good recall of the events. The Defendant believed he had done nothing wrong and therefore had nothing to hide. George and Les were likewise truthful in their evidence. [17] The regulatory maze for hunting might be compared to the bogs and thickets of the Cape Breton highlands. I have looked at various provisions in the Wildlife Act and Regulations. Without a guide one risks going off-track. However, with the evidence at trial, brief though it is, and the assistance of submissions from council, I will attempt to navigate my way to a decision. strict liability offence [18] Each of the offences charged is a strict liability offence. Such offences arise in the context of regulatory statutes such as the Wildlife Act. A number of cases in this province and elsewhere have considered the elements and defences for such. One may see, for instance, R. v. Boyd [2010] N.S.J. No. 585 (NSCA) at par.22 and 23; R. v. Ivy Fisheries 2009 NSCA 112 at par 78 et seq. the charges [19] The charges of unlawful hunting – counts 1 and 4 - require that I consider s.3(1)(ad) of the Wildlife Act wherein hunting is defined to mean: chasing, driving, flushing, attracting, pursuing, worrying, following after or on the trail of, searching for, trapping, attempting to trap, snaring or attempting to snare, shooting at, stalking or lying in wait for any wildlife whether or not the wildlife is then or subsequently captured, killed, taken or wounded, but does not include stalking, attracting, searching for or lying in wait for any wildlife by an unarmed person solely for the purpose of watching or taking pictures of it. [20] Hunting is thus a spectrum and potentially a continuum of actions. It extends far beyond pulling the trigger, and does not depend upon the success of the endeavor. [21] S.26 of the Act sets out the requirement for a licence or permit to hunt: “no person shall hunt or fish or pursue with the intent to hunt or fish any wildlife without a valid licence or permit issued pursuant to this Act or the regulations.” [22] S.4(5) of the Moose Hunting Regulations requires that no person shall hunt moose unless that person holds a valid moose hunting licence or companion stamp, is hunting in an approved zone and during the open season, and is certified under the hunter safety regulations made under the Wildlife Act. [23] Count 2, unlawful possession of a firearm, refers to possession in wildlife habitat. There are many requirements in the Criminal Code and elsewhere which a person must meet in order to lawfully possess, store and transport firearms and ammunition. The Defendant is not charged with any of these. Indeed the evidence shows that he had these requisite permissions. The Wildlife Act aside, there is no evidence that his possession of the firearm in the back seat of his vehicle at Wagmatcook offended any law or regulation. [24] S. 79 of the Wildlife Act provides: “Except as provided in this Act or the regulations, every person commits an offence who, not being the holder of a permit and not being a conservation officer exercising authority pursuant to this Act or any other enactment, takes, carries or possesses in and upon a wildlife habitat a firearm or bow.” [25] Count 3 speaks to possession of a part of a carcass. S.40(3) makes it an offence to have possession of any part of a carcass of a member of the deer family except in accordance with the Act or regulations. No argument was made that moose is not a member of the deer family. There was some grumbling about whether antlers were part of a carcass. It appears the Act does not provide a definition. In accordance with a plain dictionary meaning of the words, I find that they are. permits and licences [26] S.794 of the Criminal Code would appear to apply to this proceeding (see par. 42, below). It states that “the burden of proving that an exception, exemption, proviso, excuse or qualification prescribed by law operates in favour of the defendant is on the defendant . . .” The section was considered in R. v. H.(P.) 143 C.C.C. (3d) 223 wherein the Ontario Court of Appeal noted that this section usually applies to regulatory offences. It puts an onus on a Defendant to show that he or she had necessary permits and licences to hunt, possess the carcass and rifle, etc. [27] In Lee’s Poultry 17 CCC (3d) 539 (Ont. C.A.) there was an identical provision in play (s.48(3) of the Ontario Provincial Offences Act). The defendant was charged with operating a plant without a licence contrary to the Meat Inspection Act. The court decided that the section properly put the burden of proving that an authorization operates in favour of a defendant on the defendant. The case of Daniels (1990) 60 CCC (3d) 392 is to similar effect. [28] S. 35 of the Wildlife Act requires that “every person, while hunting or fishing or attempting to hunt or fish, shall carry the licence, permit or certificate issued to that person pursuant to this Act or the regulations and shall produce the same for inspection upon demand by a conservation officer.” [29] S. 1(aa) of the General Wildlife Regulations defines a “base licence” as a licence consisting of a licence card issued by the Department and a current wildlife habitat stamp. On the evidence before me it appears the Defendant had such a licence. S.3C(1) requires a resident to hold a wildlife resources card before being issued a base licence. It appears the Defendant had such a card, albeit dated, but sufficient, at least, to see the Department issue him the base licence. [30] Under s.3C(5) of the General Wildlife Regulations no person is to possess a firearm in a wildlife habitat unless the person is also carrying a wildlife resources card. Although clear on most points Officer Toney was vague as to what documentation he requested of the Defendant. On the evidence before me it appears the Defendant did have such a card. [31] S.3(5) says no person shall hunt “other harvestable wildlife” unless the person is the holder of a valid base licence. “Other harvestable wildlife” includes coyote under s.3(3). This accords with the Defendant’s assertion that he had the necessary permission to hunt coyote at any time of the year. [32] The Moose Hunting regulations provide for a “companion moose hunting stamp” which, according to s.2(ac) means “a stamp issued by the Department that, when affixed to a valid base licence, confers on the holder the privilege of assisting the holder of a valid moose hunting licence, who nominated him or her, in hunting moose in accordance with the Act and regulations.” The Defendant testified that in years past he’d had a moose-hunting licence on which other people were named as companions. [33] As the companion stamp is only provided as an adjunct to a licence, and as George did not possess a licence (because was asserting a right to hunt), it doesn’t seem that the Defendant could have obtained authorization in this fashion. However, he could have procured his own moose-hunting licence, as he had done in previous seasons. possession and location [34] The meaning of “possession” is relevant to the antlers and to the Defendant’s rifle, counts 2 and 3. The matter of location is pertinent to count 2. [35] S.79 of the Wildlife Act makes it an offence to “carry or possess” a firearm in “wildlife habitat”. “Wildlife” is, under the definition in s.3(ba), restricted to vertebrates, but otherwise very inclusive. “Wildlife habitat” is defined in s.3(bb) to mean “any water or land where wildlife may be found and the roads and highways thereon”, which is also quite an expansive definition. However, so far as I am aware it has not been interpreted to include all of Nova Scotia. It does not seem to be appropriate for a court to take judicial notice, without evidence. It is thus a matter for proof by the Crown whether the place where a s.79 offence allegedly occurs is in fact wildlife habitat. [36] In so far as possession of the antlers and rifle are concerned, under s.3(2) of the Wildlife Act, in words mirroring the Criminal Code, “a person is in possession of a thing when it is in that person's personal possession or when that person knowingly (i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by that person, for the use or benefit of that person or of another person; (b) when one of two or more persons, with the knowledge and consent of the rest has anything in that person’s custody or possession, it is in the possession of each of them”. This section was considered in R. v. Croft [1979] N.S.J. No. 810. [37] s.40 (3) of the Act states “Every person who at any time has in his possession the carcass or any part thereof of a member of the deer family, except in accordance with this Act or the regulations, is guilty of an offence.” [38] s.103(1) of the Act states “In a prosecution, where it is proved that the person possessed any part of a species in respect of which that person is charged at a time during which hunting that species is prohibited, the possession of such is prima facie evidence that the wildlife was taken, hunted, etc. contrary to the provisions of the Act or Regulations.” the status of George McIsaac [39] In Native Council of N.S. v. Attorney General of Canada 2007 FC 45 at par 7 et seq the Federal Court had this to say about the ATRA passport The applicant Native Counsel of Nova Scotia (NCNS) was organized and created in 1974 as an Aboriginal Peoples Representative Organization to assist and give a collective voice to Mi'kmaq and other Aboriginal persons living "off-reserve" in Nova Scotia. It is a registered society under the Societies Act, R.S.N.S. 1989, c. 435 and is a regional affiliate of the Congress of Aboriginal Peoples (CAP), a national organization. Both CAP and NCNS lobby various levels of government regarding services, benefits and programs for their members. Membership in NCNS is voluntary and open to any Mi'kmaq or Aboriginal person living off-reserve in Nova Scotia. There are different categories of membership. Approximately 3300 to 3500 persons are "full members". Full members include Mi'kmaq, Inuit, Métis, or others who claim Aboriginal ancestry. In 1987, NCNS formed the Netukulimkewe'l Commission (the Commission) as the "Natural Life Management Authority" for the community of Mi'kmaq/Aboriginal People residing off-reserve throughout Nova Scotia. Its stated purpose is to manage the hunting and fishing activities of the community. NCNS and the Commission require full members wishing to participate in the communal activities of hunting or fishing to apply for a community "harvester" permit. The permit issued to each individual harvester is known as an Aboriginal and Treaty Rights Access Passport (ATRA Passport). [40] Crown expressed some skepticism about whether the “passport” was sufficient in and of itself to prove the aboriginal hunting right which Mr. McIsaac claimed to possess. However, the Crown was prepared to cede the point for the purposes of this case only. It argues that even if George had a defence under s.35 of the Constitution Act to any charge which might be laid against him for illegal hunting, the Defendant is never the less guilty as a party. [41] I will adopt a similar position and assume - without deciding - for the purposes of this case only, that George had an aboriginal right to engage in the hunting described above and would thus possess a s.35 defence to charges such as those laid against the Defendant. To my knowledge George was not charged with any offence. parties [42] Via s.107 of the Wildlife Act and s.7 of the Summary Proceedings Act of Nova Scotia, “except where and to the extent that it is otherwise specially enacted, the provisions of the Criminal Code (Canada), except section 734.2, as amended or re-enacted from time to time, applicable to offences punishable on summary conviction, whether those provisions are procedural or substantive and including provisions which impose additional penalties and liabilities, apply, mutatis mutandis, to every proceeding under this Act.” As noted at par. 26, above,, s.794 of the Criminal Code thus applies. [43] However, the Wildlife Act contains its own definition of a “party to an offence” which thus displaces any such definition in the Criminal Code. S. 104 of the Act reads a person over the age of majority, who accompanies or assists another person at the time when the other person commits an offence contrary to this Act or the regulations, is a party to the offence and is liable to the penalty prescribed for the offence unless that person proves that the offence was committed without that person's knowledge and consent. [44] On the facts before me one would properly think of George as the principal and the Defendant as a secondary party. [45] The question of whether mere “accompanying” would attract liability and penal consequences is not before me for decision. The Crown’s case is based on active assistance. Likewise I may put aside any question about the application of the reverse onus, for the Defendant freely admits to knowing exactly what George did in hunting down the moose. However, given that George would have a defence to the charges, has the Defendant committed an offence at all? What must the Crown prove in respect to George as a foundation for seeking a conviction on the Defendant? [46] In many instances of strict liability offences an aboriginal Defendant has admitted to committing the actus reus of an offence but then pleaded a defence of aboriginal right. In such cases intent need not be proven. The offending activity is constituted by the actions alone, although the defence of “due diligence” is always available, as is a defence of aboriginal right. On this basis alone one might conclude that an offence, in a regulatory context, for the purposes of s.104 of the Wildlife Act, need be no more than the actus reus. Taking this view, potential defences would not enter into the meaning of “offence”. [47] A further basis for coming to such a conclusion is found in the line of argument made by the Crown. It has referred me to R. v. Shalaan [1997] N.S.J. No. 174 (NSCA) affirmed by the Supreme Court at [1998] S.C.J. No.8. In that case a young person had been acquitted of a murder, but Shalaan was convicted of being an accessory after the fact. The Court adopted the view that it is possible to convict an aider and abettor notwithstanding the acquittal of the principal offender. The Court was referred to s.23.1 of the Code where it states explicitly that s.21, the parties section, “applies in respect of an accused notwithstanding the fact that (the principal) cannot be convicted of the offence.” Crown argues that this section, s.23.1, applies to the present proceeding, there being nothing in the Wildlife Act to displace it or to indicate a contrary legislative intent. [48] In Shalaan, the Court at par. 23, cited this text with approval : The conviction of a secondary party does not require the conviction of the principal. The principal may, of course, have escaped or be dead. Even if available for trial she may . . . plead guilty to a charge other than that on which the secondary party is tried. Moreover, the evidence which convicts a secondary party (e.g. a confession) may not be admissible against the principal. Secondary liability does, of course, require that there be a principal. However a line of authority holds that in this context a principal need not always be someone who could have been convicted of the substantive offence. It will suffice to constitute a “principal” if the actus reus was committed. It is immaterial that the principal lacks the requisite culpability for the offence because secondary liability has its own standards of culpability. [49] R. v. Emond [2010] SJ No. 685 also holds that a principal’s lack of culpability is not a barrier to convicting a secondary party. [50] There is no question that George committed the actus reus of hunting within the definition of the Wildlife Act. That he has an aboriginal defence is of no avail to the Defendant. amendment of the charges [51] George was the second witness called by the Defence, after the Defendant himself. During cross-examination of George, Crown moved to amend the dates and location of the charges from August 10th to August 7th, and from “Wagmatcook” to “the Cape Breton highlands”. The motion is only relevant to Counts 1, 2 and 4 because count 3, as it stands, conforms with the evidence. The timing of the motion did not correspond to anything which George was testifying about at the time. Counsel said he had intended to make the motion and wanted to do so then lest he forgot later on. Defence objected. With concurrence of counsel I deferred on the motion until the end of the proceedings. [52] The effect of the amendments is to put the offences back to the time and place where the hunting actually occurred. The evidence giving rise to this “variance” came from the Defendant himself, primarily during his in-court testimony. However, I note that the variance also arises from evidence received during the Crown’s case in chief, during which certain statements made by the Defendant to Const. Kuchta were adduced. Considering where the vehicle stop occurred, the direction traveled, local geography and terminology, there is no doubt that those statements refer to the highlands of Cape Breton. As noted, the Defendant subsequently described and elaborated upon this in his own testimony. These statements alone supplied evidence that they were “hunting in the highlands”, and that they “took the moose to the mainland a few days ago”. The Defendant also claimed ownership of the rifle in the back seat of his vehicle. [53] Crown argument on this point has two prongs : (1) that the amendment can be made without undue prejudice to the defence in order to have the charges conform to the evidence (see s.601(2) of the Criminal Code, again applying by virtue of the Summary Proceedings Act) and (2) that a variance between the charges and evidence is not material with respect to time and place in any event (s.601(4.1)). [54] Defence says that the proposed amendments are material, and that it would be prejudiced by an amendment made at this stage of the proceeding. [55] S.601(4) sets out various things which a judge must consider. These include “whether the accused has been misled or prejudiced in his defence by any variance” and “whether, having regard to the merits of the case, the amendment can be made without injustice being done.” Cases have considered whether an amendment would change the essential nature or “gravamen” of the charge; if so, amendments are generally refused. [56] Depending on the timing of the motion, an adjournment may be an appropriate means to avoid prejudice to the Defence. Here that is clearly not an option, and was never suggested. [57] S.601(3) permits a court to make such an amendment “at any stage of the proceedings”. However there is case law to the effect that it is more likely that an amendment will result in irreparable prejudice, and thus not be permitted, the later in the trial the motion is made. If made at the end of the Crown’s case, before Defence is called upon, such a motion is unlikely to cause prejudice. (See, for instance, R. v. S.(C.A.) 114 C.C.C. (3d) 356 (BCCA)). Courts may ask whether a defence would have been conducted differently had the amendment been made before trial. [58] R. v. Whynott (1975) 27 C.C.C.(2d) 321 has been cited as authority for the proposition that the place of an offence is not an essential element so long as jurisdiction is established. [59] In R. v. Robinson [2005] N.S.J. No. 140 a Crown motion to amend as to date was granted just after Defence had made a motion for a directed verdict. The amendment was refused and the directed verdict motion granted, but this was overturned on appeal. The appeal court said, at par. 12 et.seq: In R. v. B.(G.) [1990] 2 S.C.R. 30, Justice Wilson for the Court indicated that s. 529(4.1), the predecessor of s. 601(4.1), was similar to the common law rule that the date of the offence need not be proven unless it is an essential element of the offence. At para. 38, she stated: From the foregoing, it is clear that it is of no consequence if the date specified in the information differs from that arising from the evidence unless the time of the offence is critical and the accused may be misled by the variance and therefore prejudiced in his or her defence. It is also clear from Dossi and other authorities that the date of the offence need not be proven in order for a conviction to result unless time is an essential element of the offence. Accordingly, while it is trite to say that the Crown must prove every element of the offence in order to obtain a conviction, it is, I believe, more accurate to say that the Crown must prove all the essential elements. The Crown need not prove elements which are, at most, incidental to the offence .... Justice Wilson provided several examples of cases where the time of the offence was an essential element, such as, on a charge of operating a plane or an automobile without a valid licence where the defence is that a valid licence had been in existence at the time. Obviously, the date of the offence has to be proven to fall outside the time when a licence was effective. As well, where an accused defends a charge by providing evidence of an alibi for the date or time period alleged, the date of the offence is an essential element. Given the circumstances in which the motion for directed verdict was made, including the argument advanced by defence counsel, it is fairly obvious that the trial judge granted the motion because the Crown had failed to prove that the date of possession of the weapons was May 30, 2003 as alleged in the Information. That was an error of law. The date of the offences was not an essential element. [60] The above case concerned the time (date) of the offence. It seems to me that the same principles pertain where the place of the offence is concerned. [61] It is possible (even if highly unlikely) that a person may engage in hunting in an area which is not wildlife habitat. Possession of a carcass (count 3) would not be place-dependent, so long as the place was within the jurisdiction of the court. However count 2 is place-dependent. The offence can only be committed in wildlife habitat. The nature of the place is an essential element of the offence which the Crown must prove. This adds to the potential prejudice which the Defendant may suffer if the motion is granted, because the Crown has led no evidence to show that Wagmatcook, where the Defendant was stopped by police, was wildlife habitat (see “possession and location”, above). While certain of the admissions made by the Defendant to Const Kuchta suggest that the Defendant retained possession of the subject rifle during the time they were in the highlands, they allow for the possibility that George or someone else in the party of four took possession of the item at the camp. There is, in contrast, ample evidence before me, that the highlands are “wildlife habitat.” [62] Crown has thus argued that Wagmatcook is “at or near” (using the wording of the charge) the highlands – in other words the location specified is “close enough”. For the reasons given above I do not think the essential element of place, where this offence is concerned, can be given such a vague interpretation, in effect easing the burden of proof. The “at or near” phraseology speaks to jurisdictional matters – whether the place is within the usual catchment area of a particular court location (or indeed within the province-wide jurisdiction of the court). An assault is an assault whether it happens here or there. With offences such as s.79 what is “here” and what is “there” may make a critical difference to whether the conduct is unlawful. [63] Given that highlands, the Trans Canada highway, Wagmatcook and other place-names and features are notorious in the local area the Defendant’s statements to Constable Kuchta are enough, on their own, to amend the place of the hunting offences. Doing so causes no undue prejudice. Defence is taken to know that such utterances were made and would form part of the Crown’s case in chief. [64] I was not called upon to apply s.103 of the Wildlife Act (noted above under “possession”) which purports to give an evidentiary boost to a Crown’s case. If applicable, the possession of the antlers would establish a prime facie case for illegal hunting. [65] The admissions made to the police officer were available to the Crown, and formed part of its case. These admissions, so far as activity in the highlands is concerned, are about hunting. The Defendant gave the police some detail about this, speaking to his role and to George’s. At that particular time George had possession of the Defendant’s rifle. Otherwise, and at other times, the officers were told next to nothing about the possession of the rifle whilst the party of four was in the highlands. [66] Given all the circumstances, the available evidence, the disclosure which would have been provided, and the way in which the proceeding unfolded, I do not think that the Defendant is misled or prejudiced by granting the amendment to “Cape Breton Highlands” on or about “October 7, 2014” in counts 1 and 4. [67] Given the foregoing factors, but mindful that the statements to police do not themselves constitute a clear admission to possessing the rifle at any time or place other than at Wagmatcook, I will not amend count 2. The effect is to require proof that Wagmatcook is “wildlife habitat”. As noted, there is no evidence before me on this essential element. This alone is sufficient to enter a finding of not guilty on count 2. An additional reason to dismiss this charge is discussed below. mistake of fact / mistake of law [68] The decision of the Supreme Court in Sault Ste. Marie [1978] S.C.J. No 70 has been interpreted to describe two defences – due diligence and mistake of fact (see R. v. Prest [2011] N.S.J. no. 333 at par 23, 24). The Crown has conceded, for the purposes of this case only, that George had a defence of aboriginal right available to him. I have done likewise for the purposes of this decision. By way of dicta, if it were shown that George does not have a valid s.35 defence, the Defendant might be forgiven for thinking that he did. In such a circumstance his belief would be reasonable, though mistaken. This, I think, would be a mistake of fact, even though the object of the belief is the legal status of another. It would be analogous to a person believing that someone in a police officer’s uniform was in fact a police officer, in a situation where s.31(1) of the Criminal Code was being considered. [69] In R. v. Gauchier 2014 ABCA 192 the Defendants were under an impression that they had a right to hunt in an area which was shown to be a wildlife sanctuary. This mistake, about the legal status of the area where they hunted and hence their own entitlement to hunt there, was deemed a mistake of law, not fact. [70] The Defendant had a bona fide belief that George was hunting as of right, and this could be construed as a mistake of fact. But any thought that he might somehow shelter under George’s status, that George’s aboriginal right would somehow shield him from potential liability for his own actions, would be a mistake of law, not fact. It would be confusing George’s legal position with his own. the Defendant as party to hunting [71] If the Defendant “assisted” George in any material aspect of George’s “hunting”, as defined, he is liable as a secondary party to the offence (given that he had no licence or permission to hunt on his own or as a companion to George). [72] One aspect of hunting is “searching for” wildlife. It would appear that given George’s age and need for assistance, the Defendant took George around on the roads in the highlands; his “chauffeur” as was said. While he may not have “entered the woods”, the roads in that area are part and parcel of the wildlife habitat (which by definition includes “roads thereon”). One notes that the Defendant himself had permission to shoot from his vehicle on just such a road. [73] Another aspect of hunting is “shooting at” wildlife. By giving George the use of his gun, having brought it from his home to the camp for that very reason, the Defendant provided material assistance to George in the hunting of the moose. unlawful possession of the rifle [74] I am satisfied on the evidence before me, looking particularly at the base licence and cards (referenced above in “licences and permits”), that the defendant could lawfully have hunted coyote at the time and place in question. In such a circumstance he would not run afoul of s.79 of the Act. unlawful possession of the antlers [75] The antlers were found in a trailer being hauled by the Defendant’s vehicle. The trailers hitched to both vehicles and the box of the truck were being used collectively to convey the material and equipment of the entire party of four. The antlers may just have easily been packed on the other vehicle except that there was “no room” by the time the rest of the stuff was aboard. I infer, from what Randy in fact carried on his truck and trailer, that the items could have been packed such that the antlers ended up with him. If this had been so, one might ask whether Randy had possession of them (rather than his passenger, George) in the sense intended by the Act. Does law require George to transport the antlers entirely on his own? I realize that a somewhat similar question arise with respect to the hunting, but I think different considerations apply here. [76] The two vehicles were travelling in tandem. Randy, with George as his passenger, knew immediately that the Defendant, who followed, had been stopped by the police. In these circumstances I would not conclude that the Defendant had “personal possession” of the antlers. He certainly knew the antlers were there but George retained effective control over them. The Defendant would not have dealt with the antlers in any fashion. I find the antlers were George’s in every sense. Keinapple [77] The “wildlife” in both counts 1 and 4 is the moose. As between them, and as between s.4(5) of the Moose Hunting Regulations and s.26 of the Act, it appears that the former is subsumed by the latter. To enter convictions on both would violate the principle of double jeopardy. Conclusion [78] The Defendant is found guilty on count 1. [79] The Defendant is found not guilty on counts 2 and 3. [80] A stay of proceedings is entered on count 4. Dated at Sydney, N.S. this 19th day of February, 2016 A. Peter Ross, JPC