J. IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2009 SKPC 71 Date: June 17, 2009 Information: 5927697 Location: Nipawin Between: Her Majesty the Queen and Percy Andrew Kenny Appearing: Mr. T. Healey For the Crown Mr. D. Loewen For the Defendant JUDGMENT B. MORGAN, INTRODUCTION: [1] Mr. Kenny is charged under The Wildlife Act Regulations, 1981 with use of a searchlight when hunting. Specifically, the section reads: 11.1(2) For the purpose of ensuring the safety of hunters and the public, searchlight shall not be used for the purposes of hunting wildlife. [2] The trial proceeded on the basis of an Agreed Statement of Facts, filed as Exhibit P-1, and the production of five other exhibits. Upon that occurring, the Crown closed its case, and the sole defence witness was Mr. Kenny. At the outset, thank both counsel, and in particular Mr. Loewen and his client, for proceeding in this manner. The net result is that there was significant saving of Court time, and the case was able to be decided on simplified and expeditious basis. [3] On September 14, 2007, officers of Saskatchewan Environment and Resources Management (“SERM”) were in surveillance aircraft flying above the Fort `a la Corne Provincial Forest near Choiceland, Saskatchewan. At approximately 11:45 p.m., the officers first saw vehicle which they observed to travel approximately 14 kilometres in an easterly direction on the Division Road, and then turn north for short distance on the Torch Trail road. The SERM officers in the aircraft were in communication with SERM officers who were on patrol in vehicles on the ground, and those vehicles were guided towards the subject vehicle and pulled it over at 12:15 a.m. Overall, then, this vehicle was under surveillance on continuous and ongoing basis for approximately 30 minutes or so. [4] In that vehicle were three individuals. The driver and owner was the defendant Percy Kenny. Sitting next to Mr. Kenny in the front seat of the truck was his nephew Tyrone Hryniuk. In the back seat of the four door extended cab truck was Mr. Kenny’s son Morgan Kenny. Each of Tyrone Hryniuk and Morgan Kenny were seated next to 30-30 rifles. The rifle that was in the back seat next to Morgan Kenny had one live round in the chamber, and four live rounds in the magazine. The rifle that was next to Tyrone Hryniuk was also loaded. Each of Tyrone Hryniuk and Morgan Kenny acknowledged that they knew the rifles were loaded. [5] Also located in the vehicle and entered as exhibits were one million candle power spotlight, which was mounted on cord that plugged into the cigarette lighter, as well as bird and animal caller that had included in it cassette tape of bull and cow mating sounds. This bird and animal caller consists of small box, approximately half the size of lunch pail, with bull horn type speaker on top. When the tape is played, the device is capable of calling or attracting moose from up to one-half mile to one mile away. Both the spotlight and bird and animal caller were located on the rear seat of the vehicle. Additionally, there were 14 rounds of ammunition located in the vehicle, which were compatible with the two rifles that were seized. [6] All three occupants of the vehicle were very polite and cooperative with the SERM officers who had pulled them over, and readily provided an explanation of their activities during the previous day and evening, that is, this being just past midnight, the immediately preceding time frame of the day and evening before. [7] Mr. Kenny’s evidence was that he had dropped his son Morgan and nephew Tyrone off in the Fort `a La Corne Provincial Forest earlier that morning, had then gone shopping in Prince Albert with his wife, and had returned to pick up his son and nephew after they had spent the day hunting. As it turns out, their hunt was unsuccessful. Mr. Kenny says that they got into the vehicle and fell asleep within five minutes. His evidence was that he was driving through the area, and admittedly using the searchlight to cast beam around, as he was looking for an acquaintance of his because the acquaintance’s wife had told him earlier that day that her husband was in the Fort `a La Corne area hunting. He adamantly denies that he or in fact any of the three of them were hunting at the time they were observed and stopped. [8] In assessing credibility, am guided by the well-known principles in R. v. McKenzie (P.N.) (1996), 1996 CanLII 4931 (SK CA), 141 Sask. R. 21 (C.A.) as follows: First, if believe the accused, must acquit. Secondly, if am unable to decide whom to believe, must acquit. Third, if do not believe the evidence of the accused but am left in reasonable doubt by it, must acquit. Fourth, even if am not left in doubt by the evidence of the accused, must ask myself whether, on the basis of the evidence which do accept, am convinced beyond reasonable doubt by that evidence of the guilt of the accused. [9] The time honoured rule is that the burden is on the Crown to prove the constituent elements of the offence beyond reasonable doubt with credible evidence, and the defendant is presumed to be innocent unless and until he is proven guilty. am not to treat this as contest in which must accept one version of events over the other; trial is not an either/or proposition. The Crown bears the burden throughout the case; there is no onus on the defendant to prove anything. In total, must be satisfied on the evidence that do accept of the guilt of the defendant beyond reasonable doubt in order to convict. [10] Having gone through that analysis, and for the reasons that follow, I do not believe the evidence of the defendant, and I am not left in doubt by it. On all of the evidence, am convinced of his guilt beyond reasonable doubt. [11] First, do not believe that Mr. Kenny was, as he says, looking for Mr. Russell Black. It is not credible to believe he happened to run into Mr. Black’s wife in Prince Albert (Mr. Black also being resident of English River First Nation, as is Mr. Kenny), that he would mention to her that he was going into the forest to pick up his son, and that this woman would then ask him to look for her husband, who happened to also be in the same forest hunting. question why he would think he would have any prospect of finding Mr. Black, when he had no idea in what part of the forest he may have been in. Further, of course, by the time he started to look, it was dark. It simply isn’t credible to believe that he thought he could find someone in vast area such as provincial forest in the first place, let alone at night. [12] Further, note that Mr. Kenny stated that it took him 45 minutes to an hour driving through the Fort `a La Corne Forest to arrive at the location where he dropped his son and nephew off, and his evidence was that he picked them up at the same spot, albeit, of course, hours later. He had to be aware, when he was traversing distances of that nature, that the chances of locating Mr. Black were infinitesimal. He acknowledged in cross-examination as much, when he agreed with the Crown’s suggestion that finding Mr. Black would have been like looking for needle in haystack. He had stated, on more than one occasion, that he didn’t have clue where he (i.e., Mr. Kenny) was. He obviously had some idea, because he returned to the same area that he dropped his son and nephew off, to pick them up, so also question his professed ignorance of his surroundings. The point remains, however, that he would have the Court believe that he was in vast tract of land, in the dark, hoping to locate someone else who was there, hunting. As it was dark, the first thought that should have crossed his mind, if not that the task he was setting for himself was virtually impossible, was that Mr. Black had probably ceased hunting due to darkness. [13] As well, it lacks any degree of probability that the first thought that would come to his mind, when he picked up his son and nephew, was that Mr. Black may have been hurt by moose. Mr. Kenny’s evidence was that there had been gentleman from his home area who had been attacked by moose in the Fort `a La Corne area, and was seriously hurt. That was his justification, apparently, for feeling that the same fate might have befallen Mr. Black. As he put it, after picking up his son and nephew, “...right away my mind started going crazy...what if Russell got hurt?”. There is simply no logical reason why one would assume that Mr. Black might have had the same fate that someone else from his home community might have suffered. That is such remote possibility, given all the potential reasons why Mr. Black might not be able to be located in huge area such as the provincial forest. All it establishes, in my mind, is that, if in fact Mr. Kenny was concerned about moose attacking Mr. Black, Mr. Kenny was of the view there were significant numbers of moose in the area. That would give him reason to be using searchlight to hunt at night. It wouldn’t give him reason to suspect “a moose stomped on his head”, referring to Mr. Black. [14] As well, although there was no evidence as to the precise time that it became dark on September 29, 2007, the first sighting of Mr. Kenny’s vehicle by the surveillance aircraft was approximately 11:45 p.m. If when he picked up the hunting party it was, in his words, “getting dark”, at the very least, at the time he was first observed, he had to have been looking for Mr. Black for two hours. He was then followed for another 30 minutes from the time he was initially observed. If finding Mr. Black was, in his words, akin to finding needle in haystack, it defies belief to accept that he would have been trying to do this for two and one-half hours, in the dark, when he had no idea where Mr. Black possibly could have been. His evidence was that he was just getting ready to leave the forest when he was stopped by the SERM officers. He then testified that he told one of the SERM officers that he intended to continue his search for Mr. Black. find this to be one more example of an unreliable story, one that was made up after the fact to fit what is, by all accounts, very suspicious set of circumstances. have little confidence that in fact Mr. Kenny was seriously concerned that Mr. Black might have been injured by wayward moose. [15] On the other hand, as the Crown argues, all of the indicia of hunting at night with the use of searchlight are present in this case. It cannot escape notice that there were two loaded firearms in the vehicle; cannot accept that they were loaded simply because there was mere oversight by Mr. Kenny’s companions, and him, in ensuring they were unloaded at the time he picked them up. Mr. Kenny had one million candle spotlight in his vehicle, and he acknowledges he was using it. He was driving slowly, by his own admission, on roads that were in prime hunting area. All of these factors point heavily in the direction of hunting at night with the aid of searchlight. [16] certainly accept defence counsel’s observation that there is no evidence that the moose caller was being used. However, there was no evidence from anyone that any efforts whatsoever were being made to locate Mr. Black, other than shining the spotlight. If one were truly looking for an injured individual in large forest, certainly one would assume that the searching parties would have been yelling and making noise to try to attract the subject’s attention. Yet from Mr. Kenny’s evidence, his two companions had fallen asleep within five minutes of getting into the truck, as they were tired from their day of hunting. [17] At the end of the day, simply cannot accept the explanation offered by Mr. Kenny. What am left with are some uncontroverted facts, all of which are consistent only with an inescapable inference that Mr. Kenny was employing the searchlight for the purposes of hunting wildlife. [18] The terms “searchlight”, “hunting”, and “wildlife”, are all defined in the Act or the Regulations. Exhibit P-3, the million candle power searchlight, clearly casts “a beam of light” amply demonstrated by the Agreed Statement of Facts and the observations of both the SERM personnel in the surveillance aircraft and the SERM employees that pulled Mr. Kenny over. [19] “Hunting” in the Act includes the act of “searching for” wildlife, “wildlife” being defined as vertebrate animal of any species that is wild by nature in Saskatchewan; wildlife would include the very animals the cassette tape was designed to attract. Indeed, the area in which Mr. Kenny was located is, according to the Agreed Statement of Facts, an excellent locale for moose, and they were at the time that he was apprehended in the “peak of the moose rut”. [20] On all the evidence, I am satisfied beyond a reasonable doubt that Mr. Kenny was using the searchlight for the purposes of hunting wildlife, and I find him guilty. [21] The Crown had indicated that, in the event conviction was entered, forfeiture of the exhibited items would be sought. Section 79(4) of the Act reads as follows: When person is convicted of contravention of any provision of this Act or the Regulations other than an offence mentioned in subsection 2, the Court may order that any article or vehicle seized in connection with the offence is forfeited to the Crown and is to be disposed of in manner approved by the Minister. [22] invite counsel to make their submissions respecting potential forfeiture at this time as to any items that were “seized in connection with the offence”. [23] Section 76 speaks to prohibition period during which convicted individual cannot apply for or obtain any big game licence, game bird licence, or fur licence, and section 74 of the Act speaks to the monetary penalty for contraventions of the Act or Regulations. Counsel can speak to those matters as well at this time.
Mr. Kenny is charged under The Wildlife Act Regulations, 1981 with use of a searchlight when hunting. Specifically, the section reads: 11.1(2) For the purpose of ensuring the safety of hunters and the public, a searchlight shall not be used for the purposes of hunting wildlife. The case was decided on the basis of credibility. The Court reviewed the requirements for assessing credibility and found it did not believe the accused. The Court stated that, on all the evidence, it was convinced beyond a reasonable doubt that the accused was using a searchlight for the purpose of hunting wildlife. HELD: The accused is guilty as charged.