E. J. GUNN IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2010 SKPC 153 Date: November 12, 2010 Information: 24164524 Location: La Ronge Between: Her Majesty the Queen and Jason Paulsen Appearing: Inez Cardinal For the Crown Peter A. Abrametz For the Accused INTERIM RULING F.M. DAUNT, [1] Jason Paulsen stands charged with seven counts on a single information, including the following: Count 1. Between the dates of September 20, 2009 AD and September 25, 2009 AD at/near Waterbury Lake in the Province of Saskatchewan didWithout lawful authority, angle in Saskatchewan waters without a licence to wit: angle on Waterbury Lake, contrary to section 11(1) of The Fisheries Regulations F-16.1 Reg 1. Count 2. On or about June 14, 2009 AD at/near Prince Albert in the Province of Saskatchewan didWithout lawful authority apply for or obtain a licence while disqualified or prohibited, contrary to section 9 of The Fisheries Regulations F-16.1 Reg 1 Count 3. On or about September 25, 2009 AD at/near La Ronge in the Province of Saskatchewan didWithout lawful authority, possess fish except in accordance with any licence or any provision of The Fisheries Act (Saskatchewan), 1994 or the Fisheries Act (Canada), contrary to section 13 of The Fisheries Act (Saskatchewan), 1994. [2] At the close of the Crown’s case, defence brought Charter application challenging the constitutionality of section 35 of The Fisheries Act, 1994, alleging it breaches sections and 11(d) of the Canadian Charter of Rights and Freedoms. [3] Section 35 of The Fisheries Act, 1994 states: In any prosecution pursuant to this Act in which the validity or existence of licence is in question, the onus is on the person charged to prove the validity or existence of the licence. [4] Defence argues that section 35 is unconstitutional in that it creates reverse onus, infringing the right of the accused to be presumed innocent until proven guilty, and is not saved by section of the Charter. The Crown argues that section 35 is constitutionally valid, citing numerous decisions upholding the constitutionality of reverse onus provisions in regulatory context. [5] There is side issue, fully argued by both sides, which is mostly irrelevant to the Charter argument. Mr. Paulsen did possess fishing licence, valid on its face. The issue is whether person named Kevin Callele had the authority under The Fisheries Act to prohibit Mr. Paulsen from applying for or obtaining an angling licence. To put it another way, the issue is this: was there a valid ministerial order revoking Mr. Paulsen’s licence and prohibiting him from applying for or obtaining a licence at the relevant times? FACTUAL BACKGROUND [6] On December 3, 2008, letter was prepared from Saskatchewan Environment, 3211 Albert Street, Regina, Canada S4S 5W6 in the name of Kevin Callele, Acting Executive Director, Fish and Wildlife Branch. It was addressed to Mr. Jason Paulsen, RR#3 Site Comp 19, Prince Albert SK S6V 5R1. The letter was signed by some unknown person, “for” Kevin Callele. Entered as Exhibit P1 on the trial was photocopy of photocopy of the original letter. The text of the letter is as follows: Dear Mr. Paulsen: This is in response to your conviction under subsection 13(4) of The Fisheries Regulations (Saskatchewan) for the offence of exceeding the angling limit which occurred on September 25, 2007. The Ministry of Environment is mandated to manage, enhance and protect Saskatchewan’s natural and environmental resources for conservation, social, economic and recreation purposes, and to ensure they are sustained for future generations. The public expect that people appreciate, respect and comply with the policy and legislation governing the management of the provincial fish resource. Blatant abuse of this precious resource is viewed as very serious matter. Accordingly, due to your conviction, your current angling licence is revoked and you are prohibited from applying for, or obtaining an angling licence for the Province of Saskatchewan for period of five years from the date of your conviction. You will be eligible to purchase an angling licence on October 15, 2013. Please contact Lyle Galloway, Compliance Manager, La Ronge Compliance Area at telephone number (306) 425-4244 if you have any questions regarding the suspension imposed. [7] On December 9, 2008, William Zimmer, Conservation Officer for the Ministry of Environment in Prince Albert, Saskatchewan, tried to serve Mr. Paulsen personally with the original letter. There was no indication in the evidence why he was not served by registered mail, as is allowed in The Fisheries Act. [8] In any event, Officer Zimmer drove to what he “firmly believed” was the residence of Mr. Paulsen. This was west of Prince Albert. Mr. Paulsen’s mailing address was Rural Route number and did not identify his specific residence. Officer Zimmer drove into the yard. There was diesel truck parked and running. Officer Zimmer knocked on the door to the residence. There was no answer. Officer Zimmer then did registered licence check through their enforcement centre dispatch in Prince Albert. Although Officer Zimmer recalled that the truck was registered to Jason Paulsen, in reality it was registered to his business, Paulsen Son Excavating Ltd. [9] Officer Zimmer then called the “Jason Paulsen residence” on his cell phone. He could not recall where he got the number that he called, whether from the phone book or from calling information. Although he could recognize Jason Paulsen to see him, he did not know him well enough to recognize his voice. He testified: received an answer. talked to, at that point, an unknown male person. was asking indicated that wanted to meet with Jason Paulsen. The conversation led to why am there. indicated why was there, who was with. indicated was with the Ministry of Environment and had to speak with him, and the conversation didn’t really go much beyond that…. Mostly that was there and needed to serve him letter. needed to speak with him regarding an angling suspension. Those kind of things. The conversation was short, fairly abrupt. [10] He says the unknown male was belligerent with him, and said the case was under appeal. The male person did not identify himself on the telephone. [11] Officer Zimmer then went back to the yard site. He walked up to the front porch and knocked on the door. He heard somebody talking, but there was no invitation to enter. He opened the door crack. As man inside yelled profanities at him, Officer Zimmer said he had an “angling fishing licence suspension.” He put his arm through the crack in the door and set that letter on small stand or table inside the house. He did not see any of the occupants of the house at any time. Officer Zimmer could not be sure that the occupant heard him when he said anything about the licence suspension. He also could not say whether anyone in the house saw him place the envelope on stand inside the door. Officer Zimmer then left the house and yard. [12] The original letter signed on behalf of Kevin Callele was placed inside this doorway. Officer Zimmer kept photocopy for his records. Tendered in Court was photocopy of that photocopy. [13] The next happening of interest was on September 20, 2009, when Jason Paulsen went on fishing trip to Waterbury Lake, along with his sister, Nicole, and three small children. Mr. Paulsen had fishing licence which was dated June 14, 2009, issued by Vendor 36640, the Prince Albert Co-op gas station. Nicole also had fishing licence. The children did not require licences, and had none. Through an elaborate covert operation, Mr. Paulsen was observed “actively angling” numerous times between September 20th and September 25th. [14] On September 25th, Mr. Paulsen and his companions packed up for the long drive back to Prince Albert. Mr. Paulsen was driving the same truck observed by Officer Zimmer in the yard west of Prince Albert. Just before midnight, the vehicle approached La Ronge from the north. The group still had two and half hours to go before they got home. Rather than continue on home to bed, however, the group was stopped by local conservation officers, who were in possession of search warrant. The three little boys, Nicole and Mr. Paulsen were redirected to the Sask. Environment maintenance compound. [15] The search warrant was executed over the course of about two hours. From the vehicle were seized (among numerous other items, including boat and motor) stainless steel cooler with the name and address of the accused scratched into it, blue cooler, and plastic food cooler, all of which contained fish. In total, there were 20 fish: lake trout, pike and arctic grayling. Assuming their licences were valid, there is no suggestion that these amounts were over limit for any of the anglers, or that the manner of transportation was against any regulations. [16] It took about another hour before the group could rearrange the non-seized items and put them into the truck. They resumed their long journey shortly before 3:00 a.m. 1. Was there valid revocation and prohibition? [17] As previously stated, this is side issue and irrelevant to the constitutional issue. However, if defence is correct and Mr. Callele had no authority to prohibit Mr. Paulsen from applying for fishing licence, counts 1, and must fail and the burden of proof issue under section 35 becomes irrelevant. If there was no valid prohibition, Mr. Paulsen possessed valid licence and did not fish or possess fish except in accordance with that valid licence. [18] Section 27 of The Fisheries Act (Saskatchewan), 1994 states as follows: (1) The minister may revoke person’s licence or revoke person’s licence and prohibit that person from applying for or obtaining licence for not more than five years where the minister is satisfied that the person has contravened: (a) any provision of this Act; (b) any provision of the Fisheries Act (Canada) or any regulations made pursuant to that Act; or (c) any terms or conditions specified in the person’s licence. (2) Where the minister revokes person’s licence or revokes person’s licence and prohibits that person from applying for or obtaining licence, the minister shall serve the person with written notice of the revocation or revocation and prohibition by personal service or registered mail. (3) revocation or revocation and prohibition takes effect on the later of: (a) ... (b) the day on which it is served in the case of personal service[.] [19] prerequisite to the prohibition is that the minister must be satisfied that person has contravened any provision of “this Act,” i.e. The Fisheries Act (Saskatchewan), 1994. Section 27 does not give the minister the power to revoke when a person contravenes The Fisheries Regulations. Paragraph (b) allows revocation upon contravention of Regulations made pursuant to the federal Act. Had the legislature intended that power to be extended to violations of the provincial Regulations, certainly they would have specified such, as they did in paragraph (b). Section 27(1) of The Interpretation Act, 1995 defines “Act” as “an Act of the legislature and includes an Ordinance of the Northwest Territories in force in Saskatchewan.” The definition of Act does not include its Regulations. The letter addressed to Mr. Paulsen states specifically that the prohibition is in response to his conviction under subsection 13(4) of The Fisheries Regulations (Saskatchewan). Section 27 of The Fisheries Act (Saskatchewan), 1994 does not give the minister that power. For that reason alone, the prohibition is not valid on its face, as being without authority. [20] “Minister” is defined in section 2(1)(j) of the Act as “the member of the Executive Council to whom for the time being the administration of this Act is assigned.” The Crown has conceded that Kevin Callele is not a member of the Executive Council. Defence argues that, therefore, he had no authority to prohibit Mr. Paulsen from applying for or obtaining fishing licence. The Crown, however, points to sections 23 and 23.1 of The Interpretation Act. They read as follows: 23(2)Where an enactment directs or empowers minister of the Crown to do an act or thing, that act or thing may be done on the minister’s behalf by any person appointed to serve in the department over which the minister presides if: (a) (b) that person is appointed to serve in capacity appropriate to the doing of the act or thing whether or not he or she, or any other person, was authorized by the minister to do the act or thing. 23.1(1) Unless an enactment expressly provides otherwise, section 23 applies to every act or thing that minister may do pursuant to an enactment, whether it is administrative, legislative, judicial or otherwise and whether or not it involves the holding of an opinion or the reaching of conclusion by minister. [21] Section 23 applies, even if the act is judicial one, to allow the minister to delegate to others to act “on the minister’s behalf.” However, because the minister had no power to revoke, that power could not be delegated to Mr. Callele pursuant to section 23(2) of The Interpretation Act. If remember my law school maxims correctly, nemo dat quod non habet: no one can give what he does not have. [22] Exhibit P1 is letter from Kevin Callele, “A/Executive Director, Fish and Wildlife Branch”, on Saskatchewan Environment letterhead. It is not signed by him. It is signed by an unknown person “for” Kevin Callele. It would seem that there is no other record of this ministerial decision separate from the letter that provides notice of the decision. That is, there is no independent document recording the decision or the process required to reach the decision. Because Mr. Callele did not sign the letter, do not know if he wrote it himself, had someone write it for him, dictated it to someone else or if he typed it himself. If he was the author of the document, do not know if he read it before it left his office, to make sure it was correct and that it accurately reflected the decision he made. [23] find that the unknown person who signed on behalf of Mr. Callele had no authority to act on behalf of the minister. signature confirms that the document is correct and reflects the intention of the author. For most letters prepared in the ordinary course of business, it is common practice to have secretary or colleague sign on one’s behalf. If there are mistakes, they can be corrected later or they are not that important. For letter of this nature, however, which serves as notice of ministerial decision, nothing in The Interpretation Act allows this further level of delegation. [24] Furthermore, even if Mr. Callele or his delegate had the power to issue the revocation and prohibition, Mr. Paulsen was neither served personally nor by registered mail with notice of that revocation and prohibition. It was never explained why he was not served by registered mail, which would have been the simplest, least confrontational way, and easy to prove. However, no matter who has the burden of proof, shoving letter through crack in the door is not “personal service” by any definition. No further attempts were made to serve Mr. Paulsen, either personally or by registered mail. According to The Fisheries Act, the prohibition takes effect on the day on which it is served, in the case of personal service. Here, Mr. Paulsen was never properly served. Nor was he served by registered mail, in which case it would take effect on the delivery date or on the date the signed post office receipt is returned to the sender. [25] Exhibit P1 is not document valid on its face. It purports to revoke Mr. Paulsen’s licence and prohibit him from applying for licence because of specific conviction. That conviction does not give the minister or anyone else the power to revoke and prohibit. It is signed by an unknown, unidentified person. This is not collateral attack on ministerial order, valid on its face. It is void ab initio, having been made without authority. It is invalid on its face. [26] In conclusion, I find that there was no prohibition order in effect within the meaning of section 27 of The Fisheries Act. Counts 1, and all depend on the fact that Mr. Paulsen was prohibited from obtaining fishing licence at the relevant times. As result, they all must fail. This is so, no matter who has the burden of proof of the validity of Mr. Paulsen’s licence. If the Crown bears the onus, whether on reasonable doubt standard or on balance of probabilities, they have failed to meet it. If the accused bears the burden, he has met it through the Crown’s evidence. Mr. Paulsen had licence, valid on its face. He acted in compliance with that licence. There was no valid section 27 revocation or prohibition in place so as to invalidate his licence. Counts 1, 2 and 3 are dismissed. [27] Therefore, do not have to decide the constitutional question, as it is moot, and decline to do so. F.M. Daunt,
The accused was charged with angling without a license, applying for a license when prohibited and possessing fish without a license contrary to various sections of The Fisheries Act and The Fisheries Regulations. The accused raised a Charter defence arguing that section 35 of The Fisheries Act was unconstitutional. The issue for the trial judge was whether there was a valid ministerial order revoking the accused's license and prohibiting him from applying for or obtaining a fishing license. A conservation officer had attempted to serve the accused with a copy of letter signed by an unknown person on behalf of the Acting Executive Director, Fish and Wildlife Branch. The letter purported to advise the accused that due to a previous conviction his current fishing license was revoked and he was prohibited from obtaining another one. The letter referenced a prohibition under s. 13(4) of The Fisheries Regulations. The conversation officer testified that he opened the door of a house that he thought belonged to the accused and left the letter on a stand near the door. The conservation officer was unable to say if the occupant heard him say anything about a license suspension or whether anyone in the house saw him place the envelope on the stand inside the door. HELD: Section 27 of The Fisheries Act (Saskatchewan) does not give the minister the power to revoke the a license when a person contravenes the The Fisheries Regulations. Further, the Acting Executive Director, Fish and Wildlife Branch is not a member of Executive Council as required by the definition of 'Minister' in the Act. The letter was signed by an unknown person who clearly did not meet the definition of 'Minister.' Finally, the letter was not served on the accused personally or via registered mail. There was no prohibition order in effect within the meaning of section 27 of The Fisheries Act. The accused was acquitted of all three counts. It was unnecessary to decide the constitutional issue.