Michael Ford (post until Oct. 31/19)
Criminal

Alberta wildlife officers exceed powers of search and seizure: Dunn

Calgary criminal lawyer Greg Dunn says the recent withdrawal of hunting charges against his client illustrates the prevalence of unconstitutional stops and seizures by wildlife officials in Alberta.

“I had a client who was hunting deer. He was stopped by a fish and wildlife officer simply on the basis that he was in an area frequented by hunters at that time of the year,” he tells AdvocateDaily.com.

The man was asked if he’d been hunting and to produce his hunting licence, and his vehicle was searched, says Dunn, principal of Dunn & Associates.

“Ultimately they found he had a deer that was improperly tagged and processed,” he says.

Dunn’s client had “hiked into the mountains, shot the deer and skinned it in the field because it was lighter to carry back that way. He then backpacked many kilometres to his vehicle. What you’re supposed to do is tag the deer and bring it back whole. He was in the wrong,” he says.

The trouble is, the stop should not have happened in the first place, Dunn says.

“The concern we had is that he was essentially stopped completely at random and searched, and an investigation was instigated on virtually no grounds at all,” he says.

The reason the fish and wildlife officers thought they could do that, Dunn says, is that s. 67.1 of the province’s Wildlife Act allows for random spot checks of vehicles.

“Many people don’t realize that much provincial legislation, regulatory and quasi-criminal in nature, provides peace officers with extraordinary powers. And the Wildlife Act is one of them,” he says.

However, a Supreme Court of Canada case established that random spot checks are unconstitutional, Dunn says. In the case he litigated in September, the Crown appeals branch acknowledged this and advised the provincial Crown that in order to maintain constitution validity, s. 67.1 of the Wildlife Act requires that all wildlife stops have at a minimum a reasonable suspicion. The provincial Crown ultimately decided to withdraw the charges, he says.

“The Supreme Court ruled that random spot checks are only allowed in very specific circumstances — for example, to check the sobriety of the driver, the mechanical fitness of the motor vehicle or the licensing and registration,” he says. “Outside of that, peace officers need reasonable suspicion to pull a vehicle over — they have to have enough objective grounds to believe the individual is somewhat involved in illegal activity.”

Dunn says Alberta fish and wildlife officers have taken advantage of s. 67.1 to conduct completely random stops of citizens and check them for hunting and fishing infractions, which contravenes the Supreme Court’s direction.

“What many citizens don’t recognize, and what many fish and wildlife officers, in fact, don’t realize, is that that particular section enforced in the manner in which it currently reads is unconstitutional. We mounted a constitutional defence against that section of the Wildlife Act, and the appeals branch of the Crown in Alberta resiled and conceded our position,” he says.

Every province’s laws and regulations on hunting are a bit different, but in Alberta, they are extremely tough, Dunn says.

“In Alberta, wildlife officials are sometimes given greater powers of search and seizure — and greater resources — than police officers,” he says. “There was one guy who shot an elk. Wildlife officers spent 500 man-hours investigating. They got DNA results for that animal faster than a detective can get them for a murder. They got satellite images.”

Even so, wildlife infractions rarely come to court, Dunn says.

“Maybe it’s because it’s not a criminal conviction — it’s a fine. You don’t get a criminal record, so many people don’t hire counsel to defend themselves against charges. There’s no pushback.”

The Crown recognized in the case brought by Dunn that stopping and searching a person must only be done if officers have reasonable suspicion. What would that entail in the context of a wildlife investigation?

“Well, maybe if you have a hoof sticking out of your trunk, or you’re dressed in camo gear and there’s blood running down your truck,” Dunn says. “There must be some indication you’ve hunted, and you’re not just driving in the area.”

In urban terms, that’s in line with Charter protections against being stopped for drug investigation just because you’re driving in an area known for drugs, he says.

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