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Causa DM-112-412

FFGC had an orchard in the town of Les Bons (Encamp), with a house where chickens and rabbits were housed. In January 2012, FFGC found that a wild animal had made a hole under the fence and killed 7 chickens. She decided to place a trap to capture the wild animal.
Later that month, FFGc observed that an animal had been trapped, she took a hoe and hit the animal in the head killing it.
The animal in question was a badger, a protected specie.
FFGC was charged with misdemeanor hunting of protected species.
The court of first Instance, tribunal de Batlles, sentenced FFGC to 1 month of home detention by night-time and a fine of 500 € for hunting protected species.
The defendant appealed against the sentence, but the court of appeal did not find grounds to reverse it, so it was upheld to the full extent. (Provided by: UNODC SHERLOC)

R v Moore 2001 QCA 431

2001

A company and two of its directors were charged with offences under the Environmental Protection Act in relation to the disposal of abrasive blasting product from a ship cleaning business in Brisbane. This case study concerns an application for leave to appeal by Moore, one of the directors.
Part of the company’s business involved the collection, stockpiling, and cleaning of spent sandblasting material from shipyards. The hulls of ships are commonly painted with a paint containing Tributyltin which is extremely effective at killing marine organisms. Ships are dry docked to have the old paint removed by sandblasting and fresh paint applied. The blasting material contained quantities of Tributyltin and other chemicals ((lead, zinc, copper, arsenic, chromium, cadmium and selenium) which would be extremely harmful if released into the environment.
In September 1998, it was discovered that the company had been releasing liquid waste of heavy metals (lead, zinc, copper, arsenic, chromium, cadmium, selenium and biocide tributyltin) into a storm water drain connected to the Brisbane River from its premises in Bulimba. The company had also stored abrasive blasting material adjacent to the stormwater drain in a manner contravening its licence conditions. Shortly thereafter the company lost the lease on the premises at Bulimba and its commercial activities were transferred to a site at Thornlands near Eprapah Creek. Stockpiles of contaminated material were dumped on the Thornlands property and some of the contaminated material was buried. The property at Thornlands was adjacent to Eprapah Creek, an area of high environmental value. EPA investigations identified excessively high concentrations of tributyltin, zinc, copper, lead and arsenic in water and sediment samples relating to both sites. In some samples, heavy metals concentrations were more than one million times the standard.
When discovered, orders were issued requiring the proper removal of the materials. There was a failure to comply with these orders. The company and its two directors were charged with willfully and unlawfully causing material and serious environmental harm, and willfully contravening conditions of authorities, licenses and environmental protection orders.
The applicant, Moore, applied for leave to appeal against these sentences.

Schwarzenberg v Commonwealth of Australia

2009

William Schwarzenberg, the plaintiff, has been a collector of exotic birds for most of his life. For many years, the Commonwealth Government has sought to prevent the illegal trade in such birds as part of its responsibility to protect exotic species pursuant to Australia’'s international treaty obligations, namely being a signatory to the Convention on International Trade in Endangered Species (CITES). The birds in question were species listed under this convention. The Department of the Environment, Water, Heritage and the Arts began investigating the involvement of the plaintiff in relation to bird smuggling back in November 2006. A number of search warrants at premises throughout Victoria in 2007 led to the discovery of numerous exotic birds, which were seized in August 2007 under national environment law.
The plaintiff applied to the courts to have his birds returned. His barrister, Denis Connell, argued their seizure was unlawful. Mr. Schwarzenberg said he built his collection by trading, swapping and breeding birds in Australia and from overseas and ''at no stage have I […] engaged in any illegal activity relating to my birds''. He said a former mandatory scheme to register possession of such birds was a failure and he had not participated in it.
The Judge found there was little basis for concluding Mr. Schwarzenberg had a ''reasonable excuse'' for possession of the birds. The Judge found that for most of the 173 birds, Mr. Schwarzenberg had produced no credible evidence that the birds he bred from were lawfully imported. ''I find that each of the birds seized was used or otherwise involved in the commission of the offence of being in possession of imported specimens,'' he said. The County Court of Victoria concluded the birds were illegally imported and Mr. Schwarzenberg was denied the return of the birds. (Provided by: UNODC SHERLOC)

R v Charles and others

1997

In 1995 a wildlife officer received information that the appellants have been engaged in illegally trafficking in white-tailed deer, deer and elk antlers, and moose. As a result of the resulting investigation the appellants were charged with a variety of offences contrary to The Wildlife Act, S.S. 1979, c.W-13.1 (hereinafter referred to as "the Act").
The appellants have submitted, however, that the provisions of the Act do not apply to them as members of Indian Bands pursuant to the Indian Act, R.S.C. 1985, c.I-5. Furthermore, they argued that the wildlife officers who conducted the investigation and gathering of evidence as part of an undercover operation have entered the Little Red Indian Reserve illegally and have also been guilty of entrapment.
The appellants also submitted that in the event that the convictions against them should not be set aside, that the minimum penalties specified in the Act constitute cruel and unusual punishment.
Throughout 1995 and 1996, the appellants have been engaged in illegally trafficking in the above-mentioned objects. An investigation officer involved in the undercover operation managed to ingratiate himself with the appellants as a buyer of the above-mentioned objects. The appellants went out throughout the two years making such offers and deliveries and selling them successfully to the investigation officer.
Mathew Charles was charged with illegal hunting, illegal possession of elk, and trafficking in elk (on two separate occasions); David Charles was convicted of trafficking in white-tailed deer antlers; Edwin Naytowhow was charged with one count of illegal possession of, and one count of trafficking in, elk meat; and Anthony Naytowhow was charged with one count of illegal possession of, and one count of trafficking in, elk meat.
Judgement:
To argue that provincial game laws do not apply to Indians on Indian reservations is, admittedly, substantially the same as the assertion that Indian reservations constitute "enclaves". This proposition was rejected by the Supreme Court of Canada in Cardinal v Attorney General of Alberta, 1974 S.C.R. 695. If a provincial legislation within the limits of the Constitution Act is not construed as being legislation in relation to "Indians and Indian reservations". it is applicable anywhere in the province, including Indian reservations, even though Indians or Indian reservations might be affected by it.
Furthermore, the facts do not reveal any "search or seizure" by the wildlife officer in the ordinary sense of those words. Nor do they reveal that the wildlife officer intruded, in any manner, upon any reasonable privacy interest or any of the appellants. It is important to note, that the appellants willingly catered to the wildlife officer's expressed interests, which also trumps the entrapment claim.
The purpose of the Wildlife Act is the conservation and management of wildlife. Thus, when individuals engage in trafficking of wildlife for personal profit, whatever the amount thereof, the legislature has deemed it appropriate that they be severely penalized. To conclude that a minimum fine of $1000 (Canadian Dollars), in those circumstances, is cruel and unusual punishment, would be totally unjustified.
As a result, the appeals are dismissed. (Provided by: UNODC SHERLOC)

R v McLeod

1997

This case is an appeal of convictions and sentences on several charges of trafficking in, and possession of, white tailed deer, elk meat, white-tailed deer antlers, elk antlers, and hunting white-tailed deer without a licence, all contrary to the Wildlife Act.
Judgement:
1) The charge of trafficking in deer antlers was dismissed. Contrary to the conclusion of the trial judge the appellant did not identify the American to whom he had sold the antlers. The definition of 'traffic' in s.2(y) of the Wildlife Act does not encompass 'giving'. There was no evidence that any sale took place on the date alleged. The date was critical in view of the six month limitation period for prosecutions of summary conviction offences. Admissions by the accused may prove decisive in linking an accused to illegal activity but there was no other evidence that the illegal transaction took place.
2) One conviction of hunting without a valid licence was dismissed while the other was upheld. The time period was critical because of the six month limitation period and the appellant still possessed a valid licence if the deer was shot before the date in question.
3) The appeal of the conviction for possession of elk antlers was dismissed. The appellant had argued that it was incumbent on the Crown to prove the manner in which the elk was shot was contrary to some specific prohibition such as out-of season, with a spotlight or in a prohibited area since the word 'poach' is not mentioned in the Act. It is generally accepted that 'poaching' means the illegal taking of birds or animals. Section 54 provides that the onus is on the person charged to prove the time and locality.
4) The conviction was set aside and the charge of trafficking in elk meat dismissed as there was no evidence to corroborate the statement made by the accused.
5) The appeals of the convictions for trafficking in deer antlers were dismissed. The photographs revealed that the antlers had portions of the deer skulls and were not naturally shed.
6) The sentence imposed on Count 3 was set aside and a fine of $750 was imposed with a forfeiture order. The $1,250 fine for trafficking in deer antlers was upheld as the appellant had a significant number of antlers in his possession. The time for payment was extended. (Provided by: UNODC SHERLOC)

R v Lamouche

1998

The accused has plead guilty to one count of selling walleye contrary to the Alberta Fishery Regulations thereby contravening section 78 of the Canada Fisheries Act. Undercover operations had established Mr. Lamouche as part of a group of mainly family members who poached and trafficked in fish and wildlife.The undercover operator wanted to identify the accused's clients and bought a large amount of walleye from associates of the accused. He then asked the accused to assist him in selling the walleye as his usual buyers "backed out".
The undercover operator provided evidence of the accused's general involvement in this trade. The pattern of illegal trafficking in both fish and wildlife was evident, as well as the accused claiming his treaty rights as a justification for his actions.
During the hearing, a walleye expert was invited - Mr. Sullivan - who informed the Court about the nature and dynamics of resources of walleye and their depletion. Almost 80% of the walleye fisheries in Alberta collapsed by poor management, monitoring, and jurisprudence. This factor was important in considering an appropriate punishment for the accused, as actions such as these gravely contribute to the situation of walleye resources, which are under protection of relevant legislation.
Judgement:
The judge concluded that the offence must be viewed as serious. The commercial nature of the accused's conduct, the precarious position of walleye in Alberta, the accused's lack of insight and remorse and his abuse of the special status that he enjoys to the detriment of other native people and persons not enjoying that status, all are factors which could justify a significant prison term.
However, the Crown was not seeking a prison term on an offence, which would not in the usual case attract a prison term. Furthermore, taking into account the failure of the government to put in place regulations to properly manage this and other species of fish and wildlife, the Court decided not to impose a prison term. Rather, the Court asked for a $7,500 (Canadian Dollar) fine. This amount however, is beyond the accused's reasonable ability to pay, and considering those circumstances a fine of $3,000 (Canadian Dollar) was imposed, in default statutory manner. (Provided by: UNODC SHERLOC)

R v Sawicki

2002

Mr. Sawicki plead guilty under The Wildlife Act, 1998, for trafficking in wildlife and possession of wildlife for the purpose of trafficking, contrary to s.44(a) and s.44(b). He was sentenced to 15 months to be served in the community (a conditional sentence). The Crown appeals this sentence arguing there is no jurisdiction to impose a conditional sentence for breaches of The Wildlife Act, 1998.
Mr. Sawicki arranged for another individual to obtain a license under The Wildlife Act. He then used that license to sell his furs. He has 15 prior convictions under The Wildlife Act. Fines ranging from $110 to $1,150 (Canadian Dollars) were imposed as a result, of which only three were paid.
The conditional sentence imposed on Mr. Sawicki included conditions that he keep the peace and be of good behaviour, appear before the court whenever required to do so, report to a supervisor, remain within the jurisdiction and remain in his residence between 9pm and 7am daily for the first ten months of the sentence, that he only be out of his residence for purposes determined by his supervisor and that he perform 80 hours of community service. At the time of appeal, Mr. Sawicki has served approximately eight and one-half months of this sentence.
Judgement:
The Summary Offences Procedure Act, 1990, S.S. 1990-91, c. S-63.1 does not incorporate the provisions relating to conditional sentences. The Provincial Court thus did not have jurisdiction to render a conditional sentence. It therefore fell to the current Court to determine what would have been an appropriate sentence.
The Crown argued that Mr. Sawicki should now be incarcerated and serve the balance of 15 months in prison. Mr. Sawicki argues that it is rare for individuals to be incarcerated for offences under The Wildlife Act and that the sentence imposed was excessive.
The Court concluded it was appropriate to send a message to Mr. Sawicki that he cannot continue breaking the law with impunity. The sentence of 60 days in a provincial correctional institute in addition to the time already served was imposed. (Provided by: UNODC SHERLOC)

R v General

2007

The defendant plead guilty to charges pertaining to unlawful trafficking and possession of wildlife, or parts thereof, violating regulations of the Wildlife Act of British Columbia, in particular with reference to the wings and feathers of bald eagles. Among these charges, is a specific case of being in possession of wildlife or wildlife parts without an authorized permit issued under the Wildlife Act near a border crossing with the United States at Surrey, British Columbia with the intention of crossing that border.
There has been a long undercover investigation into illegal poaching and trafficking of bald eagle parts for commercial purposes due to the known fact that a market for such exists, including those who participate in the international pow-wow circuit (a pow-wow is a traditional gathering among North American indigenous peoples).
The defendant has attended multiple pow-wows, where he also came into contact with the undercover officer. The defendant was intending to attend further pow-wows, also in the United States. At the Chilliwack pow-wow the undercover officers observed how the defendant purchased two pairs of bald eagle wings from another associate. These were stored and hidden in the defendant's vehicle. When the defendant was asked by the undercover operator how he was planning to transport these materials into the United States without a permit, the defendant said that he would be able to hide them.
A search of the defendant's belongings upon arrest at the Canadian-US border crossing, produced 25 tail feathers, 81 wing feathers, and a bag of plume feathers, all associated to bald eagles.
Judgement:
The Court reasoned that although the defendant is an active member of the wider indigenous Indian community and did not act with criminal intent and commercial interest, but rather for personal use based on tradition, a sentence to deter others must be imposed. The Court pointed out that the defendant's remorse, early plea, and determination to reflect his community's reverence for the natural world and its abhorrence for this kind of conduct to younger generation in the community, have been taken into account in the judgement.

R v Scalplock

2007

The defendant has pleaded guilty to a charge that he did unlawfully traffic in dead wildlife or a part thereof contrary to the Wildlife Act. A conservation officer was introduced to a person who would sell the officer bald eagle parts. They formed a business relationship and on several occasions the person said that he would attend the Chilliwack pow-wow (a traditional gathering among North American indigenous peoples) to traffic in eagle parts to possible buyers. They agreed that they would attend together and that the person would introduce the officer, who was working undercover, to people to whom to sell parts.
At the Chilliwack pow-wow, the officer came to be acquainted with the defendant, who was introduced as potential buyer of eagle parts. He was wearing a bustle of eagle feathers and holding a fan of eagle feathers. The officer opened one bag and showed the defendant bald eagle wings in good shape, in which the defendant became interested. They negotiated a price and sealed the deal, handing over to the defendant a duffel bag with feathers and wings.
Judgement:
The Court concluded a penalty of 5,000 Canadian Dollars, which was agreed to be general deterrence. The need to send a message to traffickers and prospective traffickers was underlined. The fact that the defendant is 53 years of age, is divorced and has five children, as well as having no prior convictions, an early plea, and immediate subsequent remorse, were taken into account when defining an appropriate penalty.