R. v. Chapin, [1979] 2 SCR 121

Supreme Court of Canada

R. v. Chapin, [1979] 2 S.C.R. 121

Date: 1979-03-20

Her Majesty The Queen (Plaintiff) Appellant;

and

Loise Chapin (Defendant) Respondent.

1979: February 7, 8; 1979: March 20.

Present: Laskin C.J. and Martland, Ritchie, Pigeon, Dickson, Beetz, Estey, Pratte and McIntyre JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Public welfare offence—Hunting for migratory birds in baited area—Migratory Birds Convention Act, R.S.C. 1970, c. M-12—The Game and Fish Act, R.S.O. 1970, c. 186, s. 88(2)—Migratory Birds Regulations, SOR/71-376, s. 14.

Mrs. Chapin went duck-hunting on the Balmoral marsh, on property belonging to the Balmoral Hunt Club of which her husband was part-owner. She was accompanied by a friend and they were talking a lot as they walked through the marsh. They walked along a dyke road and then along some “duck-boards”, five or six inches in width, placed over the water and leading to the blind from which the respondent intended to shoot. Some time, and two ducks, later, Mrs. Chapin was arrested by a conservation officer. The officer had been in the area, had heard shots and had investigated. On his way through the marsh, he came upon “a small pile of soy beans, weed seeds and wheat”, in the middle of the dyke road and at the edge of the pond, some fifty yards from the respondent’s blind. It was generally accepted that Mrs. Chapin did not know the grain was there until it had been pointed out to her. Section 14(1) of the Migratory Birds Regulations makes it unlawful to hunt for migratory birds within one-quarter mile of a place where bait has been laid.

The charge was dismissed by the justice of the peace, who concluded that the offence was one which permitted a defence of reasonable mistake of fact. He found that Mrs. Chapin believed, on reasonable grounds, in a state of facts (that no bait was there), which if true made her act (hunting), an innocent one. The county court judge allowed the crown appeal on the basis that the offence was one of absolute liability. The Court of Appeal for Ontario reversed, on the ground that mens rea is an ingredient of the offence charged.

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Held: The appeal should be dismissed.

The offence created by s. 14(1) of the Regulations cannot be characterized as a “crime in the true sense”. The Migratory Birds Convention Act is a regulatory statute enacted for the general welfare of the Canadian public and its wildlife. Section 14(1) creates a “public welfare offence” and it is not subject to the presumption of full mens rea.

Following the Sault Ste. Marie case, [1978] 2 S.C.R. 1299, public welfare offences would prima facie fall in the category of strict liability. Hunting of migratory birds is not prohibited, but controlled. While the offence is summary conviction in nature, serious consequences follow from conviction, including loss of hunting privileges, forfeiture of guns and equipment and fines and potential imprisonment. The public interest, as expressed in the Convention, does not require that s. 14 of the Regulations be interpreted so that an innocent person should be convicted without fault. Hunting being a permitted sport, it would be a practical impossibility for a hunter to search a circular area having a diameter of half a mile for the presence of illegally deposited bait, before hunting. This view of subs. (1) of s. 14 is reinforced by a consideration of subs. (4), which provides for legal baiting and posting of notices of legal baiting. Parliament could not have intended to afford a person hunting within a quarter mile of an illegally baited area any less protection than that afforded in relation to a legally baited area. The offence is therefore not one of absolute liability.

The offence created by s. 14(1) is one of strict liability, a classic example of the second category delineated in the Sault Ste. Marie case. An accused may absolve himself on proof that he took all the care which a reasonable man might have been expected to take in all the circumstances or, in other words, that he was in no way negligent.

On all of the evidence, it would have been unreasonable to convict the respondent and therefore a new trial ought not be directed.

R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, 3 C.R. (3d) 30; Thibodeau v. R., [1955] S.C.R. 646 followed; R. v. Hickey (1976), 12 O.R. (2d) 578 rev’d 13 O.R. (2d) 228; R. v. Pierce Fisheries Ltd., [1971] S.C.R. 5 distinguished; Sherras v. De Rutzen, [1895] 1 Q.B. 918 referred to.

APPEAL from a judgment of the Court of Appeal for Ontario allowing an appeal from a

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judgment of Beardall Co. Ct. J. on a trial de novo of a charge under s. 14(1) of the Migratory Birds Regulations, SOR/71-376. Appeal dismissed, solicitor and client costs pursuant to terms under which leave was granted.

J. Douglas Ewart, for the appellant.

John Brown, Q.C., for the respondent.

The judgment of the Court was delivered by

The Facts

DICKSON J.—Mrs. Loise Chapin went duck hunting in the Balmoral marsh, near Chatham, one windy afternoon in mid-October, 1976. She was accompanied by a friend whom she had not seen for some time. As they walked through the marsh they were, she testified, talking a lot, and not paying attention to anything but the beautiful day. They reached a dyke road, walked along it a short distance, then along some “duck boards”, five or six inches in width, placed over water and leading to a duck blind from which Mrs. Chapin intended to shoot.

Some time, and two ducks, later, Mrs. Chapin was arrested by a conservation officer of the Ontario Ministry of Natural Resources. He had been in the area and heard shots. Leaving his car he proceeded on foot through two gates, down through a small canal gully, over scrub land, across a corn field, and finally arrived at a road leading to a small pond. The road, over which Mrs. Chapin and her friend has passed earlier, was approximately 12 feet in width, and composed of a mixture of mud and gravel. As the conservation officer approached the pond he observed, in the centre of the road, and about ten feet from the water’s edge, a small pile of soy beans, weed seeds and wheat, like the gleanings from a harvesting operation on a farm. The officer said that he was practically on top of the pile before he noticed it. It was a small pile, about a foot to a foot and a half in length, three inches wide and approximately two inches in depth. The blind from which Mrs. Chapin had been shooting was located some distance out from the edge of the pond and about 50

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yards from the pile. The officer also noted grain in the water on either side of the board walk.

Mrs. Chapin testified that she was unaware of the presence of the grain. It was a very windy day and many things were flying around the marsh. When she walked along the duck boards, in hip waders and carrying a gun, her sole concern was to avoid falling into the water. It seems to be generally accepted that Mrs. Chapin did not know that the grain was there until it was pointed out to her by the conservation officer. Even then she did not know what it was. She was shooting on private property belonging to the Balmoral Hunt Club, of which her husband was part owner. During the trial there was vague reference by defence counsel to “spite baiting” but no evidence adduced to indicate by whom or in what circumstances the grain had been deposited.

The Migratory Birds Regulations

Now, it is unlawful to hunt for migratory birds within one-quarter mile of a place where bait has been deposited. Section 14 of the Migratory Birds Regulations, SOR/71-376, as amended, reads:

14. (1) Subject to subsection (2), no person shall hunt for migratory game birds within one-quarter mile of any place where bait has been deposited.

(2) Subsection (1) does not apply to a place where bait has been deposited, if

(a) a game officer inspects that place and declares that it is clear of bait, and

(b) seven days have elapsed since the inspection referred to in paragraph (a).

(3) Where bait is deposited in a place after an inspection referred to in subsection (2), that subsection ceases to apply to that place for the remainder of the open season.

(4) No person shall deposit bait in any place during the period commencing seven days before the open season applicable in that place and ending on the day immediately following the last day of the open season in that place unless that person, at least thirty days prior to placing the bait,

(a) obtains the consent in writing of

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(i) every landowner and every lessee or tenant whose land is located within one-quarter mile of that place, and

(ii) the Director and the Chief Game officer of a province, and

(b) posts in that place signs of a type and wording satisfactory to, and in a location designated by, the Director.

(5) A consent obtained pursuant to paragraph (4)(a) is valid in respect of the open season in respect of which it was obtained.

(6) Subsection (4) does not apply to the holder of a permit referred to in section 19 or 20 who places bait

(a) in a confined area specified in his permit, or

(b) at a distance of not less than one-quarter mile from an area where the hunting of migratory birds is permitted

for the sole purpose of feeding migratory birds lawfully in his possession.

(7) For the purpose of subsection (I), any area

(a) of standing crops, whether flooded or not,

(b) of harvested crop land that is flooded,

(c) where crops are properly shocked in the field where they grow, or

(d) where grain is scattered solely as a result of normal agricultural or harvesting operations

shall not be regarded as a place where bait has been deposited.

Section 12(1) of the Migratory Birds Convention Act R.S.C. 1970, c. M-12 provides:

12. (1) Every person who violates this Act or any regulation is, for each offence, liable upon summary conviction to a fine of not more than three hundred dollars and not less than ten dollars, or to imprisonment for a term not exceeding six months, or to both fine and imprisonment.

The Judicial History of the Case

Mrs. Chapin was charged with contravening s. 14(1) of the Regulations and appeared before Justice of the Peace Robert Walker, who dismissed the charge. After considering the penalty, possible damage to the public, and type of offence, he held that s. 14(1) of the Migratory Birds Regulations was not a mens rea offence. On the authority of the Ontario Divisional Court judgment in R. v.

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Hickey[1] the justice concluded that a s. 14(1) offence is an offence leaving open the defence of reasonable mistake of fact. After reviewing all the evidence, he found that Mrs. Chapin believed, on reasonable grounds, in a state of facts (that no bait was there), which if true made her act (hunting), an innocent one.

The Crown appealed. Judge Beardall of the Country Court of the County of Kent allowed the appeal. He held that s. 14(1) of the Migratory Birds Regulations created an offence of absolute liability and hence no mens rea need be proven. He also concluded that R. v. Hickey, supra, was not applicable. He was of the view that the defence of honest mistake was not available to Mrs. Chapin. After referring to Hickey, and the evidence in that case of a faulty speedometer on a charge of speeding, he said:

In this case there is no such evidence, and, no corroborative evidence of any kind, to establish that Mrs. Chapin was led astray by anything, said or observed, into believing that the pond was not baited. She might have been careless in not asking to find out, but nobody told her—or there is no evidence that anyone told her—that the pond was not baited; that she had a right to rely on some other express evidence merely from the fact that she didn’t observe and didn’t know.

With respect this passage contains two errors in law (i) in the assumption that corroborative evidence is necessary and (ii) in placing upon Mrs. Chapin the onus of establishing that she had been misled into believing that the pond was not baited. The judge imposed a standard based upon the premise that other people would act illegally.

Mrs. Chapin appealed, and the Court of Appeal for Ontario allowed her appeal, Houlden J.A. dissenting. Mr. Justice Weatherston, with whom Mr. Justice Brooke concurred, dealt first with the argument that the accused was entitled to be acquitted if she honestly and reasonably believed in a mistaken set of facts which, if true, would render her act an innocent one. He said:

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Whether or not it is the law of this country, it requires an affirmative finding of fact by the trial judge that the accused was honestly mistaken on reasonable grounds.

He then quoted the passage from the judgment of Judge Beardall which I have set out above, and said:

Since he made no affirmative finding of fact in favour of the accused, we are unable to dispose of this appeal on the basis of this defence, assuming it was available to her.

Mr. Justice Weatherston disposed of the case in favour of Mrs. Chapin. He held that mens rea was an ingredient of the offence charged. As the trial judge had not rejected Mrs. Chapin’s evidence that she did not know of the presence of the bait, the majority concluded that she was entitled to be acquitted. Mr. Justice Houlden did not think that the offence was one requiring mens rea, nor did he consider the mistake of Mrs. Chapin to have been a reasonable one.

The case has now, by leave, reached this Court. There are two preliminary observations. First, the judicial history of the case, all before the judgment of this Court in R. v. Sault Ste. Marie[2], provides an interesting example of the courts attempting to come to grips with the classic sort of regulatory offence. The three courts which have dealt with the matter to date have characterized the offence in three different ways. Justice of the Peace Walker treated it as an offence of strict liability to which the accused could plead that she committed the offence under an honest and reasonable mistake of fact. Judge Beardall considered it to be one of absolute liability. The Court of Appeal majority regarded it as a mens rea offence, while Mr. Justice Houlden regarded it as one of absolute liability.

In Sault Ste. Marie at pp. 1325-1326 this Court recognized three categories of offences, according to the mental element requisite for conviction, rather than the traditional two:

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1. Mens rea offences in which some positive state of mind such as intent, knowledge, or recklessness must be proved by the prosecution either as an inference from the nature of the act committed or by additional evidence.

2. Strict liability offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event.

3. Absolute liability offences where it is not open to the accused to exculpate himself by showing that he was free of fault.

In further explanation the following passage appears in the judgment at p. 1326.

Offences which are criminal in the true sense fall in the first category. Public welfare offences would prima facie be in the second category. They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if such words as “wilfully”, “with intent”, “knowingly” or “intentionally” are contained in the statutory provision creating the offence. On the other hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act. The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty and the precision of the language used will be primary considerations in determining whether the offence falls into the third category.

The Crown argues that the offence is one of absolute liability or in the alternative, strict liability. The respondent contends that it is one requiring full mens rea or, if not, a strict liability offence.

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Not a “mens rea” Offence

One would be hard pressed to characterize the offence created by s. 14(1) of the Migratory Birds Regulations as a “crime in the true sense”. Violation is punishable upon summary conviction and not indictment. One must note the absence of the usual signals connoting mens rea such as “wilfully” or “with intent”. In contrast, to take an example, s. 10 of the Migratory Birds Convention Act commences “Any person who wilfully refuses to furnish information or wilfully furnishes false information to a game officer…”.

The Migratory Birds Convention Act is a regulatory statute enacted by the Parliament of Canada for the general welfare of the Canadian public, not to mention the welfare of the ducks. The purpose of the legislation is expressed in the preamble to the Migratory Birds Convention, which has been sanctioned, ratified and confirmed by s. 2 of the Act, and which reads in part as follows:

Whereas many species of birds in the course of their annual migrations traverse certain parts of the Dominion of Canada and the United States; and

Whereas many of these species are of great value as a source of food or in destroying insects which are injurious to forests and forage plants on the public domain, as well as to agricultural crops, in both Canada and the United States, but are nevertheless in danger of extermination through lack of adequate protection during the nesting season or while on their way to and from their breeding grounds;

His Majesty the King of the United Kingdom of Great Britain and Ireland and of the British dominions beyond the seas, Emperor of India, and the United States of America, being desirous of saving from indiscriminate slaughter and of insuring the preservation of such migratory birds as are either useful to man or are harmless, have resolved to adopt some uniform system of protection which shall effectively accomplish such objects.

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Article I of the Convention, attached as a Schedule to the Act, describes the migratory game birds included in the terms of the Convention. Article II provides for close seasons “during which no hunting shall be done except for scientific or propagating purposes under permits issued by proper authorities”. Article III provides for a continuous close season on certain migratory game birds. Article IV provides for special protection to be given the wood duck and the eider duck. Article V provides for the prohibition of the taking of nests or eggs, and Article VI for the prohibition of the shipment or export of migratory birds or their eggs during the continuance of the close season. Finally, Article VII provides for the issuance of permits to kill migratory birds which, under extraordinary conditions, may become seriously injurious to the agricultural or other interests in any particular community.

The Migratory Birds Convention Act authorizes the making of Migratory Birds Regulations for the purpose of effecting the public welfare goals of the Migratory Birds Convention. Section 4 of the Act provides in part:

4. (1) The Governor in Council may make such regulations as are deemed expedient to protect the migratory game, migratory insectivorous and migratory nongame birds that inhabit Canada during the whole or any part of the year.

(2) Subject to the provisions of the Convention, the regulations may provide,

(b) for limiting the number of migratory game birds that may be taken by a person in any specified time during the season when the taking of such birds is legal, and providing the manner in which such birds may then be taken and the appliances that may be used therefor;

It seems clear that the offence of hunting for migratory game birds within one quarter mile of any place where bait has been deposited contrary to s. 14(1) of the Migratory Birds Regulations and s. 12(1) of the Migratory Birds Convention Act, is legislation designed to protect migratory birds from indiscriminate slaughter for the general welfare of the public. It seems equally clear that s.

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14(1) of the Migratory Birds Regulations creates a public welfare offence which is not criminal in the true sense and it is therefore not subject to the presumption of full mens rea. Section 14(1) is thus not creating a new crime, but in the public interest is prohibiting an act under a penalty: Sherras v. De Rutzen.[3]

Not an Absolute Liability Offence

The language of the offence is straightforward, “No person shall…”. Yet there is not a strict prohibition on hunting, rather a hunt controlled within certain limits as to season, methods, and types and numbers of species taken. Nor can one ignore the controls on shipment and export of game, nor the stricter controls in certain prescribed geographic areas “for the control and management of such area”.

Accepting that this is a public welfare or regulatory offence, neither party mentions the approach taken by this Court in Sault Ste. Marie that “public welfare offences would prima facie be in the second category” of strict liability. The Crown merely lists the factors suggested as relevant in Sault Ste. Marie, viz. the overall regulatory pattern, the subject matter of the legislation, the importance of the penalty, the precision of the language, in order to move the offence out of the second category and into the third.

The Crown suggests that “the summary conviction nature of the penalty” should carry some weight. Summary conviction it may be, but one could hardly term the penalties minimal. Rather than a “small monetary fine” alone, we find a number of serious consequences upon conviction. Section 12(1) of the Act lays down a minimum fine of $10 and a maximum fine of $300, or up to

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six months’ imprisonment, or both. (The County Court Judge imposed a fine of $100 in this case.) Other serious consequences ensue. Section 22(1) provides for a mandatory prohibition upon conviction of either holding or applying for a migratory game bird hunting permit for a period of one year from date of conviction. Further, as the respondent points out, the Court may under s. 88(2) of The Game and Fish Act, R.S.O. 1970, c. 186, cancel “any licence to hunt”—not just a game bird licence—and may further order no obtaining of, or application for, a hunting licence “during the period stated in the order”. Nor is that all. The most serious potential consequence comes in s. 7 of the Migratory Birds Act itself, permitting the Justice of the Peace to make an order of forfeiture of the gun and any other equipment used in violation of the Act or Regulations. While the respondent employs these penalties in support of her full mens rea position, they certainly support the prima facie classification of strict liability.

The best the Crown can do to shift this offence into the category of absolute liability is to suggest that the availability of a defence of reasonable care would considerably weaken the enforcement of the legislation. This may be true, but as Weatherston J.A. observed, the problems that may be encountered in the administration of a statute or regulation are a very unsure guide to its proper interpretation. Difficulty of enforcement is hardly enough to dislodge the offence from the category of strict liability, particularly when regard is had to the penalties that may ensue from conviction. I do not think that the public interest, as expressed in the Convention, requires that s. 14 of the Regulations be interpreted so that an innocent person should be convicted and fined and also suffer the mandatory loss of his hunting permit and the possible forfeiture of his hunting equipment, merely in order to facilitate prosecution.

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The Crown contends that a person found hunting within one-quarter mile of a place where bait is deposited is guilty of an offence, to which no defence is available. On the Crown’s submission, proof of making all reasonable efforts to ascertain the presence of the bait would be unavailing, as would proof of all possible efforts. This, in my view, is an untenable position. Hunting being a permitted sport, it would be a practical impossibility for a hunter to search a circular area having a diameter of half a mile for the presence of illegally deposited bait, before hunting. One must bear in mind the nature of the terrain over which hunting is done, as the evidence in this case discloses, and the fact that many hunters hope to get into position before first light. Is one first expected to search through swamp, bog, creeks, corn fields, over land and in water in search of illegal bait?

The case of R. v. Pierce Fisheries Ltd.[4], was cited, but I do not believe that it assists the Crown. In that case care had not been taken to acquire knowledge of the facts constituting the offence. Ritchie J. said that it would not have been a difficult matter for some officer or responsible person of the accused company to acquire knowledge of the undersize lobsters and failure to acquire that knowledge did not afford a defence. Nor does the decision of the Ontario Court of Appeal in R. v. Hickey[5] assist, having regard to the many differences between the Ontario Highway Traffic Act and the legislation here under consideration.

In my view, sub. (1) and (4) of s. 14 of the Regulations must be read together. Together they speak of legal baiting, the obtaining of written consents and the posting of signs to give notice of the presence of bait. Anyone who hunts within such a posted area may be more readily taken to be knowingly or recklessly in breach of the Regulations. The Regulations do not seek to impose an absolute obligation upon a hunter who innocently hunts in an unposted area within one quarter mile

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of bait which has been placed illegally by a person unknown. Parliament could not have intended to afford a person hunting within a quarter mile of an illegally baited area any less protection than that afforded a person hunting within a quarter mile of a legally baited area. Otherwise, as counsel for Mrs. Chapin argued, an activity which is legal is rendered illegal by the illegal act of someone over whom the accused has no control. We should not assume that punishment is to be imposed without fault.

These considerations incline me to the view that the offence here under study is not one of absolute liability.

Strict Liability Offence

In my view the offence created by s. 14(1) is one of strict liability. It is a classic example of an offence in the second category delineated in the Sault Ste. Marie case. An accused may absolve himself on proof that he took all the care which a reasonable man might have been expected to take in all the circumstances or, in other words, that he was in no way negligent.

Conclusion

It remains to consider whether to dispose of the case in this Court or send it back for a new trial. The respondent has to date been subjected to two trials and two appeals. She lost her hunting privileges from April to November, 1977. Her gun was seized and held under seizure for some time.

The following evidence is undisputed. The hunting was done at a private club, of which the husband of the respondent was part owner and to which she had been going for some eight years. The club had a permit from the Canadian Wildlife Service to bait at the proper season, but the club had never baited ponds. The respondent played no part in the management of the marsh. The day was windy with matter of all kinds flying about. The pile of grain was not large. It looked like a gleaning after harvesting. It lay on a mud and gravel road. Mrs. Chapin had no reason to be looking

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down. The conservation officer did not notice the grain until he was practically on top of it. The other grain was in the water on either side of a narrow duck walk which Mrs. Chapin had to navigate to get to the blind. There were no signs indicating that this was a baited area.

After careful reading of all the evidence, I have arrived at the conclusion reached by this Court in Thibodeau v. R.[6], namely, that on the evidence in the record it would have been unreasonable to convict the respondent and that we ought not to direct a new trial.

I would accordingly dismiss the appeal. Pursuant to the terms under which leave to appeal was granted, the respondent is entitled to costs on a solicitor and client basis.

Appeal dismissed, costs on a solicitor and client basis pursuant to the terms of leave.

Solicitor for the appellant: The Attorney General for Ontario, Toronto.

Solicitors for the respondent: Blake, Cassels & Graydon, Toronto.