QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 510 Date: 2012 12 07 Docket: Q.B.A. No. of 2011 Judicial Centre: Prince Albert BETWEEN: HER MAJESTY THE QUEEN and WAYNE GITZEL Counsel: Inez J. Cardinal, Q.C. for the appellant Peter V. Abrametz for the respondent JUDGMENT SCHERMAN J. December 7, 2012 Introduction [1] This case involves an appeal by the defendant from his conviction and by the Crown as regards the sentence imposed on Wayne Gitzel on a charge of unlawfully trafficking in forest products contrary to s. 79(1)(f) of The Forest Resources Management Act, S.S. 1996, c. F-19.1. [2] Mr. Gitzel’s position is there was no evidence that could support finding that the firewood he sold to an undercover officer was wood harvested from Crown lands. He says that since the trial judge acquitted him of related charges of unlawfully harvesting forest products from Crown lands and unlawfully possessing forest products from Crown lands, it logically follows that he should not have been convicted of unlawfully trafficking in such forest products. He asks, if there is no proof he unlawfully harvested wood or unlawfully possessed wood, how could he be found guilty of unlawfully trafficking in it? He says his conviction on the trafficking charge should be quashed. [3] For its part, the Crown has appealed the sentence imposed taking the position that a fine of $1,000 with a 40% surcharge was an unreasonably low penalty for the offence the evidence established. It needs to be noted that the acquittals on the charges of unlawfully harvesting and unlawfully possessing forest products have not been appealed. The Charges [4] The charges against Wayne Gitzel are that between November 27, 2007 and December 22, 2009, at or near the communities of Holbein and Shellbrook in the Province of Saskatchewan he:i) unlawfully harvested forest products contrary to s. 79(1)(a) of The Forest Resources Management Act;ii) unlawfully possessed forest products without a licence contrary to s. 79(1)(c) of The Forest Resources Management Act; andiii) unlawfully trafficked in forest products contrary to s. 79(1)(f) of The Forest Resources Management Act. The Evidence of the Crown Conservation Officer Rowland [5] Conservation Officer Daryl Rowland testified that his first contact with the defendant was on November 27, 2005 while on patrol in the Canwood block of the Nesbitt Provincial Forest where he encountered the defendant cutting mistletoe-diseased pine. The defendant said he was harvesting the wood for his personal heating use. Rowland told the defendant he was entitled to harvest dead wood for personal use but that he needed licence or permit and needed to pay the associated charges if he was going to harvest any wood for commercial purposes. [6] Rowland testified that subsequent to this encounter he received reports to the effect the defendant was harvesting wood from within the Nesbitt Provincial Forest and selling it. As consequence, he periodically conducted surveillance and observed the following, which he made notes of, at the time: November 2007 An individual, he took to be the defendant, chainsawing fire- killed trees in the Crutwell burn within the Nesbitt Provincial Forest. His assumption of identity was based on the fact that he recognized truck in the vicinity as being the defendant’s half-ton truck. December 11, 2007 Firewood stacked in the yard of the defendant’s residence and flat-deck trailer loaded with approximately two cords of firewood. January 11, 2008 The defendant’s truck and someone he therefore assumed to be the defendant cutting fire-killed trees within the Crutwell burn and loading the wood onto the defendant’s truck. November 27, 2008 The defendant’s truck and someone he assumed to be the defendant harvesting trees in the Crutwell burn with chainsaw. December 10, 2008 The defendant harvesting fire-killed trees in the Crutwell burn and loading the wood onto his half-ton truck. November 16, 2009 The defendant exiting the Crutwell burn in his half-ton truck loaded with close to cord of wood. Rowland followed the truck tracks back to where the wood had been harvested within the Crutwell burn. Then, he observed the defendant’s half-ton truck parked at the residence of his brother-in-law Steven Denton where someone, he believed to be the defendant, was off-loading wood from the same half-ton truck. [7] Conservation Officer Rowland confirmed under cross-examination that he was only able to positively identify the defendant on two occasions, being November 27, 2008 and December 10, 2008 when he saw the defendant driving out of the Nesbitt Forest with load of firewood. He further acknowledged that he could not say how much wood the defendant had harvested from Crown lands, other than as suggested by the defendant’s statements to the undercover officer Chris Clarke. [8] He testified that individuals were entitled to harvest dead trees on Crown lands, without permit or licence, if the wood being harvested was for their personal use. Section 17(4) of The Forest Resources Management Act provides, under the “subsistence gathering” exemption, that person may gather dead or down trees for fuelwood. Rowland testified that, in his opinion, person heating his home or outbuildings with firewood would consume maximum of 15 cords per year. [9] He testified that at certain point decision was made to involve an undercover operator in the investigation of whether the defendant was illegally harvesting wood from Crown lands without permit. Conservation Officer Clarke [10] Conservation Officer Chris Clarke testified that he had taken training to operate as an undercover conservation officer, starting in 2004. Since 2008, he has instructed course in undercover operations. He has worked for five years as an undercover operator and during that time has been involved in some 28 investigations. He became involved in this matter in January of 2009 when his assistance was requested. The target of his undercover operation was the defendant. [11] He testified as follows: September 11, 2009 He contacted the defendant by cell telephone indicating he was interested in purchasing at least two cords of pine firewood. In that conversation the defendant confirmed he was in the business of selling wood, but told Clarke he should call back in October, since he had not yet had chance to get out and collect any wood. October 27, 2009 He again contacted the defendant by cell telephone, who again informed him he had not yet collected wood. The defendant told him he should call back in two weeks when he would have wood available. November 16, 2009 He contacted the defendant by telephone and was told he could bring trailer up at any time, because the defendant was currently cutting firewood and if he worked hard enough, he could have it out of the bush for pick up. The defendant assured him the wood was cured and ready to be burnt. November 19, 2009 He contacted the defendant by cell phone and was told that the wood was ready to be picked up at his brother-in-law’s place near Holbein. November 20, 2009 At 1:08 p.m., Clarke contacted the defendant advising him he was in Prince Albert with trailer and was given directions to the defendant’s brother-in-law’s place east of Holbein, Saskatchewan. In the telephone call he was told his wood was in the most easterly of four piles of wood. He went to the location, identified himself to Steven Denton, the defendant’s brother-in-law, backed up to the pile of wood the defendant had identified as his and loaded three-quarters of cord of wood and travelled back to Prince Albert where he unloaded the wood. Once Clarke was done unloading this wood, he phoned the defendant and asked if he could pay him personally. They arranged to meet at restaurant in Shellbrook. Clarke arrived at the restaurant near 2:00 p.m. The defendant arrived around 3:00 p.m. and Clarke introduced himself. They had conversation in which Clarke asked the defendant how much wood he sold the last year. The defendant said, “I sold over 150 truckloads last year.” Then Clarke asked how many loads he sold so far this year and the defendant’s reply was, “I sold 58 truckloads this year.” Clarke asked, “Where do you get your wood from?”, and the defendant replied, “in burn south of Holbein.” Clarke asked him, “Is it on friend’s property?”, to which the defendant replied, “No, it’s on Crown land.” Clarke said he told the defendant “Steve told me that the wood that they are cutting that they should have permit for, and the wood that he’s selling is illegal.” And asked Mr. Gitzel why do you need permit for dead wood. Mr. Gitzel then told me quote, “Last year one of the wardens called me and asked if was selling wood. told him that it was for my own use.” Then he said, “I thought was going to stop, but then said I’m not chicken. I’ll just tell them that the wood is my brother-in-law’s.” Clarke says he then told the defendant he would return shortly to pick up the remaining cord or one and one-quarter cords and the defendant told him “he wanted the wood removed as quick as possible so he could stack other wood there in case the wardens asked him about the wood he could say that it was his brother-in-law’s wood.” November 24, 2009 Clarke travelled back to Steve Denton’s residence with trailer noting there were still four piles and his pile was still there. He loaded about three quarters of cord, left with this load, unloaded it and then returned to the Denton residence at approximately 2:30 p.m. and picked up of the remaining wood, except for about 50 to 75 pieces. He testified that the wood in all of the loads was fire-killed pine cut to lengths of 12 to 18 inches with diameters of 10 inches to foot. December 1, 2009 Clarke called the defendant to place another order for smaller diameter wood. December 2, 2009 The defendant telephoned Clarke to advise that this wood was ready for pickup at the same location as previously. December 4, 2009 Clarke travelled to the Steven Denton residence to pick up the load of wood and on the way telephoned the defendant and discussed possible deal that would involve approximately 100 cords of wood. He told the defendant he would like to see the area where the wood was coming from. After loading the wood, Clarke arranged to meet the defendant at the Superstore parking lot in Prince Albert. At 2:37 p.m. the defendant arrived and they had conversation about potential purchase of 100 cords of wood. Clarke testified that: “Mr. Gitzel suggested, remember it now, that we take the wood, and instead of picking it up out in the bush, that we take it back to the yard because he said, quote, “We want to avoid Forestry. They want $15 per cord right off the top, and so far we’ve been lucky enough to avoid that.” And then said to him, “Is this wood coming off of private land?” and he said, “No, it’s off Crown land.” And later: “That evening, around 7:36 p.m., Mr. Gitzel phoned me again, or contacted me via cell phone, and he wanted to talk about the 100 cord proposal or deal. He suggested that what we do is we run two-trailered system that would bring up trailer, unhook it in the yard. He would fill the trailer full of wood, and then call me. would come up with second trailer, drop that empty trailer off, hook onto the full trailer, and take it back.” December 8, 2009 Clarke received message, in message manager on his cell phone, from the defendant wherein the defendant was inquiring about the 100-cord deal. There was subsequent conversation between the defendant and Clarke where Clarke told the defendant he wanted to arrange meeting with him to have the defendant take him out to the area where the wood would be cut because he wanted to see the wood and he wanted to be sure it was the right kind of wood. Arrangements were made to meet on December 10. December 10, 2009 Clarke contacted the defendant at 1:19 p.m. and the defendant said he was not able to go out into the bush to show them the wood, but his brother-in-law Steve was able to take him out. Clarke attended at the Steve Denton residence with another conservation officer. With Clarke driving and Steve Denton in the passenger seat, Steve Denton instructed Clarke where to drive and thereby they drove to fire-burnt pine stand in the Nesbitt Forest where there were signs of cut stumps. GPS coordinates were taken of the location and marked on Exhibit P-4. Clarke testified that, from his observation, 100 cords of wood could be taken from that area. December 14, 2009 Clarke telephoned the defendant and advised him that he would not be proceeding with the 100 cords as he could not get enough interest. The defendant told him not to worry about it as he had picked up two 20-cord deals over the weekend. The Defence Evidence [12] Neither the defendant nor Steven Denton testified. Thus, the evidence of the conservation officers is uncontradicted. [13] The evidence presented on behalf of the defence was as follows: Lloyd Smart Testified he had fire-killed wood on his private land and from 2006 through 2009 the defendant had permission to harvest that wood. He testified this wood was spruce and some tamarack. Ken Danger Testified that he had given the defendant and another individual permission, between 2007 and 2009, to cut any poplar or pine on some three-quarter sections of his privately owned pastureland, approximately 11 miles south of Shellbrook. Lee Schmalz Testified that he owned nine quarters of land eight miles south of Shellbrook and that in 2008 the defendant was taking firewood out of his land with his permission. He stated this firewood would have been spruce left over from logging operation not fire-killed wood. In return the defendant provided him with about 15 cords of firewood in 2008. Ken Olson Testified that he heated his home with wood furnace and harvested fire-killed jack pine from the provincial forest near Holbein including from the Crutwell burn in 2007 and 2008. To do this he borrowed the defendant’s half-ton truck to cut the wood and bring it out to the defendant’s yard where it was off-loaded and then loaded onto another larger truck to transport to his residence. Bert Gitzel Testified he is the defendant’s brother and lives in Martensville, Saskatchewan, where he heats his house with wood fired central heat furnace. In 2007, 2008 and 2009, the wood to do this came from Crown lands in the Holbein area. He testified that in 2007, he himself was involved in cutting the wood using the defendant’s half-ton truck, but in 2008 and 2009, the defendant did the cutting for him. In 2008 or 2009, the wood was stacked at Steve Denton’s place before being loaded into larger trucks or trailers for transportation to his residence. The Trial Decision [14] The trial judge delivered brief oral decision on January 12, 2011, shortly following the conclusion of the evidence and argument by counsel. In his reasons he stated that the charges against the defendant are strict liability offences and that once the prosecution has proven beyond reasonable doubt that the prohibited act has been committed, the defendant has to establish, on the balance of probabilities, that he had been duly diligent and took all reasonable care to avoid offending. [15] He made express findings of fact that: The defendant harvested wood, both from private land and Crown lands, during the times outlined in the Information. The defendant used wood to heat his own home. The defendant’s property was used to store wood for others. The defendant sold wood to the undercover operator Chris Clarke on November 20, 2009. This wood did not come from private land and the defendant was unlawfully trafficking in this wood. The defendant did not exercise due diligence in ensuring the wood he was providing to the undercover operator and the wood from the previous sales came from private lands. [16] The trial judge held that, after considering all of the evidence, he was not satisfied that during the period in the indictment, the Crown had proven beyond a reasonable doubt the actus reus on Count No. 1 of unlawfully harvesting forest products, nor Count No. 2 of unlawfully possessing forest products without a licence. He found that the Crown had proven, beyond a reasonable doubt, the actus reus on Count No. 3 of unlawfully trafficking in forest products, but he held that given the defendant’s own words to the undercover operator, he was not satisfied, on the balance of probabilities, the defendant was duly diligent to ensure that the wood he sold to the undercover operator and the previous sales (presumably referring to the previous 150 truckloads and the 58 truckloads he told Clarke he sold in 2008 and 2009) was wood coming from private lands. Thus, he convicted the defendant of unlawfully trafficking in forest products. [17] In his sentencing decision the learned judge stated there was no doubt the defendant broke the law “cutting this firewood when he should have had permit”, but he also cuts firewood from private property and heats his own home with firewood. He observed he could not see any damage to the environment but breach of the regulatory scheme merited penalty. He imposed fine of $1,000 with 40% surcharge. The Positions on the Appeals The Defendant’s Position [18] The defendant argues that having been found not guilty of illegally harvesting forest products and not guilty of possessing forest products without licence, it is illogical and inconsistent for the trial judge to have convicted him of illegally trafficking in forest products. He points out that the Crown has not appealed the acquittals and says the Crown is therefore estopped from disputing the correctness of the findings made on these issues. [19] The defendant argues that it is significant that when Clarke spoke with the defendant, on November 20, 2009, the defendant’s statement that he got his wood from Crown lands was in response to the question, “Where do you get your wood from?” (emphasis added). He argues that it was entirely legal for the defendant to acquire his firewood from Crown land and that this question and the defendant’s answer cannot be taken as an admission that the firewood he sold to Clarke or anyone else came from Crown lands. The Crown’s Position [20] In their factum and oral argument the Crown relied on the evidence of the November 20, 2009 conversation between the defendant and Clarke as establishing that the firewood the defendant sold to Clarke and the 150 truckloads he said he sold in 2008 and the 58 truckloads he sold in 2009 came from Crown lands. The Crown views the evidence of the conversation between Clarke and the defendant relating to the proposed 100-cord deal and the defendant’s statement to Clarke that this wood was going to come from Crown lands as confirmatory that the wood in the above-noted sales came from Crown lands. [21] In its submissions on the appropriate sentence or penalty, the Crown takes the position that the penalty should have been assessed on the basis of the illegal sale of 211 cords of firewood consisting of the 150 2008 truckloads, the 58 2009 truckloads and the three cords sold to Clarke. [22] The issues to be decided are as follows: 1. Having been found not guilty on Count Nos. and of the Information, can the defendant be found guilty of illegally trafficking forest products in relation to 150 truckloads sold in 2008, 58 truckloads in 2009, or the three cords sold to Clarke? 2. Can conviction for unlawfully trafficking in forest products contrary to s. 79(1)(f) of The Forest Resources Management Act result from negotiations for sale? 3. Can the defendant be found guilty of illegally trafficking in forest products on the basis of his negotiations with Clarke relating to potential sale of 100 cords, when that basis for finding of guilt was not specifically argued before the trial judge? 4. Should the defendant be found guilty of illegally trafficking in forest products on the basis of the evidence relating to the potential sale of 100 cords? 5. If properly convicted, what is the appropriate sentence or penalty? The Standard of Review [23] Summary conviction appeals such as this are determined by the Court of Queen’s Bench in accordance with s. of The Summary Offences Procedure Act, 1990, S.S. 1990‑91, c. S‑63.1, and ss. 812(1)(a), 813 and 822 of the Criminal Code of Canada, R.S.C. 1985, c. C-46. The powers of this court on appeal, set out in s. 686 of the Criminal Code, are made applicable by s. 822(1) of the Criminal Code. [24] In R. v. Lumbala, 2012 SKQB 64 (CanLII), [2012] S.J. No. 55 (QL), Schwann J. outlined the jurisdiction of this court as an appellate court in such matters as follows: Section 813 of the Criminal Code, R.S.C. 1985, c. C‑46, confers on defendants right of appeal to the Court of Queen’s Bench from convictions made against person in summary conviction matter and against sentence passed upon him. On appeals against conviction, an appeal court may only allow the appeal where it can be shown by the appellant that: 1) the verdict is unreasonable or cannot be supported by the evidence, 2) there was an error of law by the lower court, or 3) there was miscarriage of justice. (See Criminal Code, R.S.C. 1985, c. C‑46, s. 686 and s. 822) An appeal from conviction under s. 822 is an appeal on the record, that is, it consists of review of the transcript to determine if the trial judge made legal error. Put another way, an appeal is not “re‑do” or new trial on the charges before different level of court. On appeals against sentence, which are governed by s. 687 of the Criminal Code, appellate courts must show great deference in reviewing the decisions of trial judges, interfering to vary sentence only if the sentence is clearly unreasonable or demonstrably unfit. 10 The standard of review applied by an appellate court hearing summary conviction appeal is narrow one. An appellate court ought not interfere with decision of trial judge in the absence of palpable and overriding error. The trial judge is to be given proper deference on matters of credibility since the trial judge has the opportunity to see and hear witnesses. (see R. v. Bobyn 2010 SKQB 240 (CanLII), (2010), 357 Sask.R. 211, and R. v. Tesar, 2010 SKQB 449 (CanLII), (2010), 373 Sask.R. 13). [25] In the 2009 Saskatchewan Court of Queen’s Bench decision of R. v. Wilton, 2009 SKQB 405 (CanLII), 345 Sask.R. 81, Mr. Justice Popescul (as he then was), took occasion to review the standard of review for summary conviction appeals. In Wilton, Mr. Justice Popescul opined at paras. 7-12 that: [7] Section 812(1)(d) of the Criminal Code directs that summary conviction appeals in Saskatchewan are to be heard and determined by the Court of Queen’s Bench. The appellant, if defendant, can appeal from conviction, sentence or both. The appellant, if the Crown, can appeal from an acquittal or sentence. See s. 813 of the Criminal Code. [8] The powers of an appellate court, as set out in s. 686 of the Criminal Code, are made applicable to summary conviction appeals by virtue of s. 822(1) of the Criminal Code. [9] Pursuant to s. 686(1) of the Criminal Code, court may allow defendant’s appeal where the verdict is unreasonable and cannot be supported by the evidence, was based on wrong decision on question of law, or on any ground if there was miscarriage of justice. However, the defendant’s appeal ought to be dismissed where, although not properly convicted on an [sic] particular count, he was properly convicted on another count or where there was legal error made but no substantial wrong or miscarriage of justice occurred. [10] Pursuant to s. 686(5), court may allow Crown appeal where defendant was found not guilty by the court below due to an error in law. [11] On the factual grounds, the standard of review is whether there is evidence upon which trier of fact, properly instructed, could reasonably reach the verdict. See R. v. Bigsky (J.S.), 2006 SKCA 145 (CanLII), [2007] W.W.R. 99; 289 Sask.R. 179; 382 W.A.C. 179; 2006 SKCA 145, at para. 74. The appellate court ought not substitute its own view of the evidence for that of the trial judge. However, the appellate court is entitled to review, re‑examine and reweigh the evidence, but only for the purpose of determining if the evidence was reasonably capable of supporting the learned trial judge’s conclusion. See R. v. Burns (R.H.), 1994 CanLII 127 (SCC), [1994] S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161; 89 C.C.C. (3d) 193. [12] On question of law, the standard is correctness, and the appellant court should intervene if the decision is not correct in law unless there has been no substantial wrong or miscarriage of justice that has occurred. See R. v. Henry (B.) (2006), 2006 SKQB 469 (CanLII), 286 Sask.R. 154; 2006 SKQB 469; R. v. Shepherd (C.), 2007 SKCA 29 (CanLII), [2007] W.W.R. 659; 289 Sask.R. 286; 382 W.A.C. 286; 2007 SKCA 29. i. Having been found not guilty on Count Nos. and of the Information, can the defendant be found guilty of illegally trafficking forest products in relation to 150 truckloads sold in 2008, 58 truckloads sold in 2009 or the three cords sold to Clarke? [26] Given that: i) the defendant was entitled to harvest dead wood from Crown lands for his personal heating; ii) there was no direct evidence establishing that the wood sold to Clarke or in the 150 and 58 truckloads contained any wood harvested from Crown lands; iii) there was no direct evidence that the defendant was in possession of illegally-harvested forest products; and iv) the finding that during the time period referenced by the Information, the defendant harvested and sold wood from private lands; jury could reasonably have found, as the trial judge found, that the charges of unlawfully harvesting or possessing were not proven. [27] The statement made by the defendant to Clarke that he obtained his wood from Crown land was sufficiently ambiguous that the court should not have taken this as an admission, proving beyond reasonable doubt, that the wood comprising the 150 or 58 truckloads or the Clarke sales came from Crown lands. In any event, as counsel for the defendant argues, the acquittals having been made and not appealed, the Crown is estopped from disputing the validity of the factual or legal issues made in respect of these acquittals. See R. v. Grant, 1991 CanLII 38 (SCC), [1991] S.C.R. 139, 67 C.C.C. (3d) 268, and Grdic v. The Queen, 1985 CanLII 34 (SCC), [1985] S.C.R. 810, 19 D.L.R. (4th) 385. [28] The learned trial judge then found the Crown had proven, beyond reasonable doubt, the actus reus of Count No. 3, unlawfully trafficking in forest products and said that given the defendant’s own words to the undercover operator he was not satisfied, on the balance of probabilities, that the defendant was duly diligent to ensure that the wood he sold to the undercover operator and the previous sales (presumably referring to the previous 150 truckloads and the 58 truckloads he told Clarke he sold in 2008 and 2009) was wood coming from private lands. With all due respect to the learned trial judge, I find this conclusion and reasoning to be in error. [29] am of the opinion that it was essential, for finding of unlawfully trafficking in forest products, in respect of those sales, that the Crown led evidence sufficient to permit the trial judge to conclude, beyond reasonable doubt, that either those sales were made intending that the wood comes from Crown lands or that among the firewood sold to Clarke or within the 150 or 58 truckloads, was wood that was harvested from Crown lands. There was no such evidence and thus, given the standard of review, this line of reasoning cannot support the conviction. The trial judge found the defendant harvested wood for firewood sales from private lands. The agreements for these sales would have had to contemplate the wood coming from Crown lands or the wood delivered would have had to include wood harvested from Crown lands for the offence of trafficking to be made out in respect of these sales. The evidence does not support such conclusion. [30] While in the circumstances one might speculate or even conclude as matter of probability that the sales in question included wood harvested from Crown lands, that is not good enough. There must be proof beyond reasonable doubt that illegally-harvested wood was in fact intended to be or was actually part of such sales for the offence of trafficking to be made out. There was no such evidence before the court. [31] The learned trial judge said that given the defendant’s own words to the undercover operator he was not satisfied, on the balance of probabilities, that the defendant was duly diligent to ensure that the wood he sold to the undercover operator and the previous sales (presumably referring to the previous 150 truckloads and the 58 truckloads he told Clarke he sold in 2008 and 2009) was wood coming from private lands. With all due respect, this was misapplication of the due diligence defence. It is only if the actus reus is proven beyond reasonable doubt, that considerations of whether due diligence has been proven arises. [32] Where an individual has been harvesting firewood from private lands for sale and firewood from Crown lands for personal consumption (being therefore wood lawfully harvested for that purpose but not lawfully available for sale) the strict liability aspect of the offence charged imposes duty on the vendor to ensure that he does not sell or permit to be included among firewood that he sells wood harvested from Crown land. If the Crown had proven that the wood in any of these sales included Crown land harvested wood, then the actus reus is made out and strict liability leads to the conclusion of such wood having been sold with the requisite mens rea unless the seller proves on the balance of probabilities that he exercised due diligence to ensure that the Crown forest products did not get mixed in. [33] Thus, conviction of the defendant of unlawfully trafficking in forest products on the basis of the sales to Clarke and the previous 150 and 58 truckloads referenced by the defendant cannot be maintained because the qualifying actus reus was not proven in respect of such sales.  However, there is another aspect to the evidence that was not expressly considered by the trial judge and which does sustain conviction. It is trite law that an appeal is from the decision or result and not from the reasons. Thus, if the evidence establishes trafficking via another modality, then the conviction must nonetheless stand. ii. Can conviction for unlawfully trafficking in forest products contrary to s. 79(1)(f) of The Forest Resources Management Act result from negotiations for such sale? [34] Section 2(dd) of the Act defines “traffic” to mean “to offer for sale, sell, buy, exchange, barter, deal, solicit or trade”. Under s. 79(1) it is an offence to traffic in forest products originating from Crown lands without licence. The offence of trafficking as defined by these sections is complete if such forest products are offered for sale without licence. It does not matter that at the time you offer the product for sale that you have not illegally harvested or possessed such product. The offence is complete by offering the product for sale without licence. iii. Can the defendant be found guilty of illegally trafficking in forest products on the basis of his negotiations with Clarke relating to potential sale of 100 cords, when that basis for finding of guilt was not specifically argued before the trial judge? [35] As noted above, it is trite law that an appeal is from the decision or result and not from the reasons. Thus, if the evidence establishes trafficking via another modality, then the conviction must nonetheless stand. iv. Should the defendant be found guilty of illegally trafficking in forest products on the basis of the evidence relating to the potential sale of 100 cords? [36] The offence charged was unlawfully trafficking in forest products. The uncontradicted evidence is that the defendant was negotiating with Clarke to and had offered to sell him 100 cords of wood that he intended to come from Crown land. The defendant was in those conversations offering for sale, selling or dealing in forest products. His actions in those conversations meet the definition of “traffic”. The evidence also clearly establishes that the defendant was doing this with no intention of obtaining permit to harvest the wood to fill the order or obtaining licence to deal in forest products. [37] Under s. 86 of the Act in any prosecution the onus is on the person charged to prove the validity or existence of licence. The defendant led no evidence to establish he had either the required permit to harvest forest products from Crown lands or a licence or any form of authorization to deal in forest products. Thus, the evidence establishes beyond a reasonable doubt that the defendant was guilty of trafficking in forest products contrary to s. 79(1)(f) of the Act as charged. [38] While find the reasoning by which the trial judge convicted the defendant of trafficking to be flawed, nonetheless the defendant was, on the evidence, properly convicted of the offence of trafficking as charged. Therefore, the conviction stands. v. If properly convicted, what is the appropriate sentence or penalty? [39] The evidence establishes the defendant was illegally trafficking in 100 cords of firewood. The fact that the transaction never was completed is irrelevant. The offence was complete by the making of the offer. The clear intention of the defendant was to avoid the $15.00 per cord levy the Province would have imposed. Thus, he would, had the transaction concluded, have avoided payment of some $1,500.00 in provincial levies quite apart from being guilty of trafficking without licence. [40] Of even greater significance in the sentencing process than the actual levies sought to be avoided is the need to deter not only the defendant but other offenders from flouting the law. Accordingly, a fine equivalent to a levy avoided would be inappropriately low since the fine could not in those circumstances act as a deterrent to either the defendant or other offenders. [41] Factoring in that the defendant was in the offence he committed intending to avoid a charge or levy of $1,500, recognizing the deal that he was making did not conclude and thus he did not actually generate revenue from the proposed transaction and considering the need for a significant deterrent to the defendant and other offenders who are committing this offence on a commercial scale, I have concluded that in the circumstances of this case an appropriate fine is $5,000. Accordingly, the defendant shall pay a fine of $5,000. The defendant shall also pay a victim fund surcharge of 40% as required by s. 3 of The Victims of Crime Regulations, 1997, R.R.S. c. V-6.011 Reg. 1. The defendant shall have 60 days to pay the fine and victim surcharge imposed, and in default of payment shall serve a term of imprisonment of 90 days.
The defendant was charged with unlawfully harvesting forest products contrary to s. 79(1)(a) of The Forest Resources Management Act, unlawfully possessing forest products without a licence contrary to s. 79(1)(c) and unlawfully trafficking in forest products contrary to s. 79(1)(f) of the Act. He was acquitted of the first two charges and convicted of the third. He appealed his conviction. He was fined $1,000 with a 40% surcharge. The Crown appealed the sentence. The appellant argued that since he was acquitted of the related charges, it followed that he should not have been convicted of trafficking. The charges had arisen as a result of a lengthy undercover investigation into the activities of the appellant. He was known to be harvesting fire kill in the Nesbitt Forest, which was Crown land. He stored wood on his property and on that of a relative. If the appellant was using it himself, he did not require a permit. The undercover conservation officer purchased fire wood from the appellant, who told the officer that the wood was from Crown land in an answer to officer's question whether it was cut on private land. The appellant did not testify at his trial nor did his relative and so the evidence of the conservation officer was uncontradicted. The evidence presented on his behalf was from individuals who had purchased wood from the defendant. The trial judge held that the charges against the appellant were strict liability offences and once the Crown had demonstrated beyond a reasonable doubt that the prohibited acts had been committed, the appellant had to establish on the balance of probabilities that he had been duly diligent and took all reasonable care to avoid offending. With respect to the first two charges, the trial judge held that he was not satisfied that during the period described in the indictment that the Crown had proven the actus reus of the offences but that it had on the third count, based on the appellant's own words to the officer. The appellant argued on appeal that his words could have been taken to mean that he was describing where he harvested wood for his own use and therefore his statement was not an admission that he sold wood to the officer or anyone else from Crown lands. HELD: The Court held that the trial judge erred in his reasoning and conclusion that appellant was guilty of trafficking because he had not been duly diligent. It is only if the actus reus was proven beyond a reasonable doubt that the considerations of whether due diligence had been proven would arise. The conviction could not be maintained because the qualifying actus reus was not proven. However, the other aspect of the evidence, which was not expressly considered by the trial judge and which would sustain a conviction, was if evidence established trafficking via another modality. Since s. 2(dd) of the Act defines 'traffic' to mean 'to offer for sale, barter, deal, solicit or tradeÃ ' and s. 79(1) states that it is an offence to traffic in forest products from Crown land without a licence, then the offence is complete by offering the product for sale without a licence. The appellant led no evidence to establish he had either the required permit to harvest forest products from Crown lands or a licence or any other form of authorization to deal in forest products. Thus, the evidence established beyond a reasonable doubt that the appellant was guilty of trafficking in forest products contrary to s. 79(1)(f) of the Act. The conviction was upheld. Regarding sentencing, the Court held that it was important to deter other offenders. The trial judge's sentence of a fine equivalent to the levy avoided (the provincial charge per cord of wood) was inappropriately low. The Court set the appropriate fine at $5,000 plus a victim fund surcharge of 40% as required by s. 3 of The Victims of Crime Regulations. If the fine was not paid within 60 days, the appellant would serve a term of imprisonment of 90 days.