QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 274 Date: 2006 06 09 Docket: Q.B.A. No. 04/05 Judicial Centre: Battleford BETWEEN: IDANALL KORNER RANCH LTD. ERICK RODNEY ALSAGER and 587214 SASKATCHEWAN LTD. and HER MAJESTY THE QUEEN Counsel: R. A. Robertson for the appellants F. G. Impey for the respondent JUDGMENT ROTHERY J. June 9, 2006 [1] The appellants were convicted by Young P.C.J. of several offences pursuant to the Health of Animals Act, S.C. 1990, c. 21 (the “Act”) and the Health of Animals Regulations, [SOR/91-525, s.1] (the “Regulations”) resulting from their handling of elk and from obstructing inspectors. Erick Rodney Alsager (“Alsager”) was convicted of all eight offences, and the corporations under his control were convicted of five offences and two offences respectively. The total sentence imposed by the learned trial judge was a fine of $69,000, allocated amongst the fifteen counts. [2] Counsel for the appellants appealed this sentence on the basis that the fines were too harsh and the consecutive sentences exceed the overall capability of the offender to pay. When counsel for the appellants first argued this case on appeal on September 9, 2005, accepted counsel’s submissions that the learned trial judge erred in law in imposing fines without regard to the offenders’ ability to pay, as required by s. 734(2) of the Criminal Code, R.S.C. 1985, c.C-46. ordered that the matter be remitted to Young P.C.J. for such enquiry to be made and suspended the time for payment pending his enquiry. [3] At that appeal, both counsel for the appellants and for the Crown agreed that the appropriate calculation for imprisonment in default of payment is prescribed by s. 734(8) of the Criminal Code. That is, the statutory default calculations provided by s. 734(4)and (5) apply to these offences. Thus, the default provisions in the sentences shall be varied accordingly. [4] On December 13, 2005, Young P.C.J. made the requisite enquiries of the appellants’ abilities to pay the fines and concluded that they indeed had the ability to pay. Young P.C.J. allowed the appellants until September 1, 2006 to pay the fines. [5] On May16, 2006, counsel for the appellants continued this appeal. Crown objected to my jurisdiction to hear the appeal, claiming that was functus officio when sent the matter back to Young P.C.J. for his enquiries about the appellants’ ability to pay. However, Crown had no objection to proceeding with the appeal as new appeal, and Crown agrees to an order regularizing the notice of appeal, if necessary. Both counsel further agree that the only ground of appeal is whether the fines are excessive. They further agree that the statutory default days for Alsager’s imprisonment under the learned trial judge’s sentence is 724 days, as the sentences are consecutive. [6] conclude that have jurisdiction to continue this appeal on the basis that referred the matter back to the learned provincial court judge to make the necessary enquiry of the appellants’ ability to pay their fines. In doing so, was acting in accordance with s. 683(1)(b)(ii) of the Criminal Code. Because this is an appeal taken under s. 813 of the Criminal Code, ss. 683 to 689 apply. Counsel for the appellants referred me to the British Columbia Court of Appeal decision of R. v. Debaat (1992), 1992 CanLII 459 (BC CA), 15 C.R. (4th) 226 wherein this provision was used to refer the matter back to the trial judge to enquire into the offender’s ability to pay, and to report back to the appellate court once that enquiry has been made. That is exactly what directed the learned provincial court judge to do in this case, and full enquiry has been completed. The matter is now before me to continue the appeal solely on the basis that the learned provincial court judge erred in setting the fines at such high amount. [7] These convictions result from actions taken by Alsager and the two corporate appellants in handling certain elk following the outbreak of chronic wasting disease (“CWD”) in 2000 2001. Alsager was major elk farmer and continues to be so. Because CWD was found in his and the corporations’ herds, the Canadian Food Inspection Agency (the “CFIA”) ordered the destruction of about 750 elk on the ranch. The appellants were compensated under federal programme for their losses. Alsager was allowed to keep separate herd of older bull elk for sport hunting, where each elk shot would then be tested for CWD at later date. [8] Alsager purchased another 36 elk and brought them onto his property while it was under quarantine. That was done so without receiving the necessary permits from CFIA. After bringing the 36 elk onto the quarantined property, Alsager later moved them to the separate land during the rutting season where the hunt bull elk were located. When the inspectors attempted to investigate breaches of the Regulations, Alsager and one of the corporate appellants obstructed the inspectors in their duties. [9] All this led to the fifteen counts against the appellants. The summary of the convictions and resulting fines are as follows: Count 1: moving 36 elk without permit, contrary to s. 76(1) of the Regulations, committing an offence contrary to s. 65(1) of the Act Alsager fined $6000, Idanall Korner Ranch Ltd. (“Idanall”) fined $4000, and 587214 Saskatchewan Ltd. fined $4000. Count 2: taking 36 elk into an infected place without licence issued by an inspector, contrary to s. 25 of the Act, committing an offence contrary to s. 66 of the Act Alsager fined $6000, Idanall fined $4000, and 587214 Saskatchewan Ltd. fined $4000. Count 3: unlawfully removing 36 elk from place of quarantine without the inspector’s authorization, contrary to s. 91.4(2)(a) of the Regulations, committing an offence contrary to s. 65(1) of the Act Alsager fined $6000 and Idanall fined $4000. Count 4: unlawfully allowing 36 elk to come into contact with an animal not under the same quarantine order, contrary to s. 91.4(2)(b) of the Regulations, committing an offence contrary to s. 65(1) of the Act Alsager fined $6000 and Idanall fined $4000. Count 5: on September 16, 2002, Alsager obstructed or hindered an inspector performing his duties under s. 38(1) of the Act by withholding information of the location of the 36 elk, by failing to present the elk for inspection, and by failing to provide reasonable assistance in locating and inspecting the elk, contrary to s. 35 of the Act, and committing an offence contrary to s. 65(1) of the Act, and was fined $4000. Count 6: on September 26, 2002, Alsager obstructed an inspector, and was fined $4000. Count 7: on October 3, 2002, Alsager obstructed an inspector, and was fined $4000. Count 8: between October and December 9, 2002, Alsager and Idanall obstructed an inspector, and Alsager was fined $4000 and Idanall was fined $3000. [10] Counsel for the appellants submits that these fines, for total of $69,000, with consecutive default penalties for Alsager, offends the totality principle articulated in R. v. M. C.A.) 1996 CanLII 230 (SCC), [1996] S.C.R. 500. As stated in para. 42 of M. C.A.), the sentencing judge must ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. In this case, by making the fines consecutive, Alsager could be imprisoned for just under two years for non-payment of the fines. [11] Counsel for the appellants submits that the total amount of fines is excessive for the offences committed. Counsel submits this is not in keeping with the sentencing principles articulated in s. 718 of the Criminal Code. More particularly, the large fine does not meet the objective of assisting in the rehabilitation of the offender. [12] The starting point for the appellate court in considering the sentence imposed by the trial judge is carefully summarized in R. v. [K.J.P.], R. v. Gaveronski 2002 SKCA (CanLII) at para. 16 where Jackson J.A. states: 16 Appellate courts are urged by series of Supreme Court of Canada decisions to take light hand with respect to assessing the fitness of sentences imposed. In R. v. Proulx, 2000 SCC (CanLII), [2000] S.C.R. 61, the following references with respect to deference appear: In para. 123 the Court states that it has "repeatedly stated that the sentence imposed by trial court is entitled to considerable deference from appellate courts", and cites R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] S.C.R. 227 at paras. 46‑50; .v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] S.C.R. 500, at paras. 89‑94; R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] S.C.R. 948 at paras. 15‑17; R. v. W. (G.), 1999 CanLII 668 (SCC), [1999] S.C.R. 597, at paras. 18‑19; At para. 125, Lamer C.J.C., writes as follows: [125] Although an appellate court might entertain different opinion as to what objectives should be pursued and the best way to do so, that difference will generally not constitute an error of law justifying interference. Further, minor errors in the sequence of application of s. 742.1 may not warrant intervention by appellate courts. Again, stress that appellate courts should not second‑guess sentencing judges unless the sentence imposed is demonstrably unfit. At this point in the judgment, Lamer C.J.C., quotes from M. (C.A.) at para. 91 where the Supreme Court confirms that: [91] [M]ost importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender's crime. As such, the sentencing judge will have strong sense of the particular blend of sentencing goals that will be "just and appropriate" for the protection of that community. In para. 127, at point 13, Lamer C.J.C., reiterates "[s]entencing judges have wide discretion in the choice of the appropriate sentence. They are entitled to considerable deference from appellate courts." He then reaffirms the most often quoted assessment of the standard of appellate review taken from para. 90 in M. (C.A.): [90] Put simply, absent an error in principle, failure to consider relevant factor, or an overemphasis of the appropriate factors, court of appeal should only intervene to vary sentence imposed at trial if the sentence is demonstrably unfit. [13] This Act is public welfare statute. Thus, the principle of deterrence is critical in sentencing. As stated in R. v. Cotton Felts Ltd. (1982), 1982 CanLII 3695 (ON CA), C.C.C. (3d) 287 (Ont. C.A.) at p. 294-295: Examples of this type of statute [public welfare statutes] are legion and cover all facets of life ranging from safety and consumer protection to ecological conservation. In our complex interdependent modern society such regulatory statutes are accepted as essential in the public interest. They ensure standards of conduct, performance and reliability by various economic groups and make life tolerable for all. To very large extent the enforcement of such statutes is achieved by fines imposed on offending corporations. The amount of the fine will be determined by complex of considerations, including the size of the company involved, the scope of the economic activity in issue, the extent of actual and potential harm to the public, and the maximum penalty prescribed by statute. Above all, the amount of the fine will be determined by the need to enforce regulatory standards by deterrence: see R. v. Ford Motor Co. of Canada Ltd. (1979), 1979 CanLII 2838 (ON CA), 49 C.C.C. (2d) at p. 26, M.V.R. 237, per MacKinnon A.C.J.O., Nadin‑Davis, Sentencing in Canada (1982), p. 368 and cases therein cited. The paramount importance of deterrence in this type of case has been recognized by this court in number of recent decisions. An example is provided by R. v. Hoffmann‑LaRoche Ltd. (No. 2) (1980), 1980 CanLII 2695 (ON SC), 56 C.C.C. (2d) 563, 119 D.L.R. (3d) 279, 30 O.R. (2d) 461. ... Another example is provided by this court's decision in R. v. K‑Mart Canada Ltd. (1982), 1982 CanLII 3811 (ON CA), 66 C.C.C. (2d) 329, 28 C.R. (3d) 271. In that case the court increased fine of $25,000 to $100,000 for company convicted of conspiring to interfere with the formation and operation of trade union, contrary to the Labour Relations Act, R.S.O. 1970, c. 232, now R.S.O. 1980, c. 228. In so doing Chief Justice Howland had this to say at p. 332: In our opinion, the fine imposed did not adequately reflect the gravity of the offence and was an error in principle. The fine must not be tantamount to licence fee to commit illegal activity, but must be sufficiently substantial to warn others that such illegal activity will not be tolerated. The main factors in the computation of fine expressed in these decisions are the same as those expressed by Judge Dnieper. Without being harsh, the fine must be substantial enough to warn others that the offence will not be tolerated. It must not appear to be mere licence fee for illegal activity. With reference to these offences, deterrence is not to be taken only in its usual negative connotation of achieving compliance by threat of punishment. Recently my brother Zuber in R. v. Ramdass, judgment pronounced on November 17, 1982 [since reported 1982 CanLII 3694 (ON CA), C.C.C. (3d) 247] referred to deterrence in more positive aspect. There he was dealing with driving offence and he quoted an earlier unreported decision of this court in R. v. Roussy, [1977] O.J. No. 1208, unreported, released December 15, 1977 [summarized W.C.B. 72] where the court stated: But in crime of this type the deterrent quality of the sentence must be given paramount consideration, and here am using the term deterrent in its widest sense. sentence by emphasizing community disapproval of an act, and branding it as reprehensible has moral or educative effect, and thereby affects the attitude of the public. One then hopes that person with an attitude thus conditioned to regard conduct as reprehensible will not likely commit such an act. This aspect of deterrence is particularly applicable to public welfare offences where it is essential for the proper functioning of our society for citizens at large to expect that basic rules are established and enforced to protect the physical, economic and social welfare of the public. [14] It is clear from the judgment of Young P.C.J. that Alsager’s sentence reflects that basic rules be enforced to ensure the welfare of the public, and specifically, the safety and welfare of the elk ranching industry. The sentencing judge found Alsager arrogant and unrepentant. At pages 5-6 of his decision, Young P.C.J. states: Having his herd destroyed and receiving the compensation checks, Alsager just couldn’t get back into elk fast enough. His herd was destroyed in August of 2001. Instead of getting to work on compliance with the cleanup and disinfectant protocol he is out buying more elk just couple of months later. His extensive knowledge of elk is likely the basis of his challenge to the cleanup protocol. He thought he should be able to design his own protocol, insist on an inspection and have his quarantine and designation lifted. If Parliament had wanted every farmer to design their own cleanup protocol they would have said so in the Health of Animals Act. For some reason Parliament has left both the imposing of quarantines and designations of infected premises in the hands of federally appointed inspectors many of whom appear to be veterinarians. Parliament has also left the lifting of these orders in the hands of those same inspectors. What it takes to get these inspectors to lift these orders is not set by statute. From the evidence the inspectors or others have set some policies to guide their decision making and obviously to give some uniformity and consistency in the imposing and lifting of these orders. Dr. McLane testified that this was new disease and the policy was evolving with the science. The purpose of the legislation and any concept of the greater public good seems to have been lost on Mr. Alsager. He is apparently content to live in, raise his children in, and eat the food in country where every individual producer can determine for himself protocol for dealing with infectious disease and food safety. [15] The sentencing judge was advised that Alsager had been previously convicted in 1990 of transporting wildlife without prescribed documents and was fined $700. The sentencing judge concluded that Alsager intentionally put the elk industry at risk. He decided that the fines must be sufficient to deter Alsager and the public in general. The sentencing judge was also aware that Alsager was a leader in the elk industry. That is a factor that would require a sufficient fine to set an example for others in the industry and within Alsager’s own community. [16] There was only one other conviction under the Act that Crown was able to refer the sentencing judge to. The headnote of R. v. Pouliot states that the Quebec Superior Court sentenced the offender to fine of $4000. Pouliot had three white-tailed deer in his possession that had been moved without the permit required under s.160 of the Regulations, thus contravening s. 76(2) of the Act. These deer were not exposed to any infectious disease such as CWD. [17] In this case of fifteen convictions, the maximum fines prescribed by the Act are $750,000. The total fine of $69,000 for placing elk in danger and for obstructing inspectors cannot be considered disproportionately high. Given the need for the sentencing judge to address deterrence in a public welfare statute, I cannot find that the sentence was “demonstrably unfit.” Oppositely, it is both appropriate and fit. [18] Counsel for the appellants argues that the sentencing judge did not take Alsager’s rehabilitation into consideration. Given these types of offences, that is not an error of law. Counsel also suggests that the consecutive offences for Alsager’s handling of the 36 elk ought to have been concurrent offences. Because find the overall sentence to be appropriate, cannot interfere with the sentence on this basis, even if agreed with counsel’s submissions. [19] In summary, other than varying the default provisions to the statutory default times outlined in s. 734(8) of the Criminal Code, this appeal is dismissed. J. A. R. Rothery
DIGEST The appellants were convicted of several offences pursuant to the Health of Animals Act and Regulations resulting from their handling of elk and from obstructing inspectors. The total sentence imposed by the trial judge was $69,000. HELD: 1) The sentencing judge was aware that the appellants had been previously convicted in 1990 of transporting wildlife without the prescribed documents. The sentencing judge determined that the fines must be sufficient to deter the appellants and the general public. The sentencing judge was also aware that the appellants are leaders in the elk industry. This is a factor that would require a sufficient fine to set an example for others in the industry and within the appellants' community.  2) In this case of fifteen convictions, the maximum fines prescribed are $750,000. The total fine of $69,000 for placing elk in danger and for obstructing inspectors cannot be considered disproportionately high. Given the need for the sentencing judge to address deterrence in a public welfare statute, the court could not find the sentence was 'demonstrably unfit'. Oppositely, it is both appropriate and fit. 3) Other than varying the default provisions to the statutory default times outlined in s. 734(8) of the Criminal Code, this appeal is dismissed.