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Blagdon v HMTQ

2010

William Blagdon appealed a conviction and the sentence he received in the Provincial Court for breaching section 91(3)(a) of the Atlantic Fishery Regulations, contrary to section 78(a) of the Fisheries Act. He claimed that thetrial judge erred by finding he was engaged in a “common enterprise” with another fisher, ignored “irregularities” in the evidence and did not apply the “due diligence defense” or the “burden of proof” correctly. Mr. Blagdon claimed the sentence hereceived was “extreme”.
Mr. Blagdon came to visit his sister in Burin, NL on October 2, 2007. His brother-in-law arranged for Mr. Blagdon to accompany Keith Adams, also of Burin, in Mr. Adams’ boat for the recreational groundfish fishery which was openat the time. Mr. Blagdon said that he and Mr. Adams left Burin around 5:00 am on October 3, 2007 and steamed to an area of shallow water on Mortier Bank, in Placentia Bay. He said that Mr. Adams had handlines on his boat and they used thegear to direct for cod fish, the most coveted of the groundfish.
Afterwards, at the harbor, Fishery Officers inquired how the fishing was that morning and the occupants of the boat told them it was “good”. The officers then asked how many fish they hadon board and Mr. Adams answered that they had “20 or so”. The officers knew the daily limit for two fishers to be ten fish so they immediately believed that Mr.Adams and Mr. Blagdon had exceeded their quota and concluded that “[t]here wasobviously a violation…”. The number reported by Mr. Adams was also consistent with the observations the fishery officers made of the plastic pan whichwas in plain view at that time: “…there was a pan that was three parts full of codand, just at a quick glance, Your Honour, you could determine that there was more than 10 fish in that pan”. Officer Drover acted immediately by reading the police caution to both fishers and advised them of the right to counsel. Officer Batemanboarded Mr. Adams’ boat and began his inspection.
Officers Bateman and Drover seized the boat and motor, all the contents ofthe boat, including the pan of cod fish, the plastic pail and mackerel, and all fishing gear. They charged Mr. Adams and Mr. Blagdon with exceeding the daily quota ofgroundfish allowed during the recreational fishery. Mr. Adams pleaded guilty andreceived the same sentence as Mr. Blagdon.
Judgement:
The court dismissed the appeal, both as to conviction and sentence.The trial judge understood the law which applied to the offence and applied it properly. He believed the Crown evidence. He did not believe Mr. Blagdon’s evidence and after considering all the evidence he was satisfied that the Crown had proved the charge beyond a reasonable doubt. He also exercised his discretion appropriately when he sentenced Mr. Blagdon for the offence. (Provided by: UNODC SHERLOC)

R v Potts

2010

Mr. Potts was convicted of 11 counts under the Wildlife Act, R.S.A. 200, c.W-10. The issue for consideration is what is a fit and appropriate sentence given all the proper considerations.
Mr. Potts was the subject of an undercover operation - Operation Chinook, aimed at illegally trafficking in wildlife. The 11 counts that Mr. Potts was convicted of included unlawfully hunting wildlife, unlawful trafficking in wildlife, unlawful guiding, unlawfully discharging a firearm from a vehicle and contravening an order of the Court made under the Wildlife Act.
He was aware his actions were illegal and in defense attempted to hide behind his aboriginal rights. These rights have been well defined over an extended period of time and there should have been no uncertainty in mind of Mr. Potts as to his righs and obligations in this regard.
Judgement:
Counts 1, 2, 3, 4:
For the most part these activities involved Mr. Potts travelling around with an undercoverofficer culminating in the shooting and sale of deer. An appropriate fine for these offences is $4,000.00 plus surcharges as follows:
Count 1 - $1,000.00 plus surcharge of $150.00 in default 16 days
Count 2 - $1,000.00 plus surcharge of $150.00 in default 16 days
Count 3 - $1,000.00 plus surcharge of $150.00 in default 16 days
Count 4 - $1,000.00 plus surcharge of $150.00 in default 16 days
Counts 7, 8 and 9:
These charges involve the hunting for and sale of elk meat previously shot.On each of these charges, Mr. Potts will be fined the sum of $1,000.00 plus a surchargeof $150.00 in default 16 days, concurrent to each other, but consecutive to Counts 1, 2, 3, and 4.
Counts 10 and 12:
These counts involve Mr. Potts guiding without a license. It occurred over an extended period of time and Mr. Potts earned money and received other benefits. On each of count Mr. Potts will be fined the sum of $2,000.00, together with a surcharge of $300.00 each, with a default time of 33 days on each, concurrent to each other,but consecutive to the other sentences.
Count 11:
This involves the hunting of a bird of prey which is a protected animal. Mr. Potts did not shoot at any animal on the day in question, but he was hunting within the meaning of the Wildlife Act and this behaviour must be deterred. Mr. Potts will be fined the sum of $1,000.00. A surcharge of $150.00 will apply, in default 16 days consecutive.
Count 5:
This involves the flagrant breach of a Court order under the Wildlife Act. The Crown is correct in submitting that this would often require a period of incarceration. I am satisfied however that the ends of justice and in particular the principles of deterrence can be met byimposing a fine, particularly in light of the other convictions and sentences imposed herein.Accordingly, Mr. Potts will be fined the sum of $2,000.00 plus a surcharge of $300.00, in default33 days consecutive. (Provided by: UNODC SHERLOC)

R v Thornhill

2010

The accused was charged with two breaches of the Fisheries Act, namely, possession of several undersized lobster, and possession of a v-notched lobster (see Commentary and Significant Features).
The accused and two other men, sailed into harbor after a day of fishing for lobster. They stopped to offload lobster pots at the pier, which were inspected and found to pass muster: none were v-notched, nor spawning, nor undersized.
At the dock, one of the three men carried a bundle of oil skins out of the boat to a green pickup truck. The bundle of oil skins was opened by Fisheries Officer Osepchook, and it contained approximately ten pounds of lobster. Some were under the legal size, and one was a v-notched lobster. There was no doubt about the lobster being illegal, however the real question was, who was in possession of the lobster.
This case turns on the validity of eyewitness identification. While a different Fisheries Officer Walsh swore he saw the accused put the bundle of oilskins in the back of the truck, the accused and one of the other - second - man swore that it had been the third man who accompanied them. He was charges separately and convicted, and did not testify at this trial.
The Crown must now prove the accused committed the actus reus of the offence, which it has failed to do, and so, the accused was acquitted. (Provided by: UNODC SHERLOC)

R v Marsland

2011

This is a case of appeal. The respondent was accused on three charges listed above. The question was, whether the permits the respondent (at that time: the accused) carried were technically valid for the actions he committed.
The accused was transporting five white-tailed deer from his ranch in Alberta to an outfitting and game farm operation in Saskatchewan. The animals the accused was transporting were deer born and raised on the accused's game farm. The accused was in possession of an export permit from Alberta, issued by the Canadian Food Inspection Agency (CFIA). Separately, in the Saskatchewan Environment Resource Management Department, a meeting of senior members was held, where it was decided to have a policy change and begin laying charges against individuals importing game farm deer without a Saskatchewan import permit.
When the accused was stopped and charged, he was in possession of the above-mentioned CFIA Export Permit and a Poundmaker Cree Nation Import Permit, which is the goal farm in Saskatchewan where the accused was planning to bring the white-tailed deer to, as was previous practice.
The summary offence ticket given to the accused by the relevant authorities, was for the provincial offence of importing white-tail deer without an import permit contrary to s. 31(1)(b) of the Wildlife Act. To operate a hunt farm, the specifications require a license by the Province of Saskatchewan, which the owner of the goal farm could not obtain as his hunt farm was located on a First Nation reserve (native peoples' reserve) and came under federal jurisdiction. This is also the reason why it was impossible for the accused to receive a Saskatchewan Import Permit.
A duty was imposed on the accused under s.15 of the Domestic Game Farm Animal Regulations to obtain an important licence pursuant to s.31(1). A failure to meet this duty may have given rise to a charge under the DGFAR, s.15, and not under DGFAR s.31(1) of The Wildlife Act. However, the accused was not charged under the DGFAR s.15, so was possibly charged under the wrong legislation. From this the learned trial judge concludes that no culpability can be found in not having obtained a license which was not obtainable.
Further, it was noted that the accused had shown due diligence in attempting to meet any obligations under the law, as well as followed past practice of federal officials allowing the importation practices.
The Crown, (represented by the Attorney General of Saskatchewan) argued however, that there was very little evidence that the accused made efforts to obtain information as regards his legal responsibilities for importation of the deer in question. Further, the fact that the authorities in this matter "allowed" the accused to import deer on previous occasions without charge, cannot be said to be officially induced error. In R. v. Shiner 2007, the court set aside a judicial stay and entered a conviction against a seal hunter from unlawfully selling blue back seal pellets. In that case, the accused has argued that the Department of Fisheries' failure to act to curtail the illegal harvest of blue back seals led him to believe he could continue to do so. This was rejected by the court. The court held that the accused "inferred" that his actions were legal. In the matter before me, the accused "inferred" that his actions were legal when he was not previously stopped. However, it does not establish officially induced error.
Judgement:
For the reasons set out above, the decision of the learned trial judge must be overturned, and the appeal allowed. The Attorney General requested that a conviction be entered and a sentence be imposed (see above, under "Sentence"). (Provided by: UNODC SHERLOC)

AG v Yeung Sun-Shun Lee Ming-Sun Hong Kong

1987

As a result of an earlier ruling, namely reversing the verdict of acquittal of the District Judge and recording a conviction against both respondents, it is now the task of the Court of Appeal ("the Court") to impose such sentence as is proper in the circumstances.
The trial judge found that the two respondents and another man, who gave evidence for the prosecution, conspired together to import into Hong Kong 619 ivory tusks. The two charges the respondents faced were: 1. Conspiracy to import unmanifested cargo, contrary to common law and Section 18(1)(a) of the Import and Export Ordinance, Cap. 60; and 2. conspiracy to import scheduled species without licence, contrary to common law and section 4(1) of the Animals and Plants Protection of Endangered Species Ordinance (Cap. 187).
The first respondent, an ivory carver, was expected to receive ivory of a value of about USD 500,000, it being accepted that this ivory could not have come into his possession by legitimate methods. The second respondent, although a supplier and not a user of the ivory, was involved in the illegal importation into Hong Kong, worth approximately USD 1M. The Court found that this was a serious conspiracy to import schedule species into Hong Kong.
Judgement:
The Court found that the nature of the offences are serious in nature and require a proper sentence on the first charge of an immediate nine months of imprisonment on each of the respondents. It is worth noting, that the maximum punishment of offences against Section 18(1)(a) of Cap. 60 has been lifted to USD 50,000 and two years imprisonment in 1984. With regard to the second charge, the offence against Section 4(1) of Cap. 187, the maximum sentence for a first offender (which both respondents are in this case) is a fine of USD 5,000. Here, the Court noted that this amount, in the view of the importance of the protection of species, seems to be a derisory maximum. The Court therefore suggested here that the Legislature should re-examine the penalty which can be imposed under that Section. A maximum fine of USD 5,000 was imposed on each of the respondents.
Finally, the Court also reasoned the following:
"It is our custom, on an application for review, to allow a discount to respondents from the sentence that we think should have been imposed by the trial judge. We shall follow that practice in this case, and accordingly reduce the sentence of nine months imprisonment on the first charge to one of six months. We do not propose to allow any discount of the fine of USD 5,000 imposed on each respondent on the second charge." (Provided by: UNODC SHERLOC)

The Peoples Procuratorate of Guangzhou City Guangdong Province v. Chen Yonglin and Chen Zupei

1987

On November 3 1987, the People's Procuratorate of Guangzhou City, Guangdong Province instituted a public prosecution in the Intermediate People's Court of Guangzhou City against the defendants, Chen Yonglin and Chen Zupei, on charges of smuggling of giant panda pelt. On November 11 of the same year, the Intermediate People's Court of Guangzhou City legally formed a collegiate bench, and conducted an open trial. In this trial it was found that:
In December 1986, the defendants, Chen Yonglin and Chen Zupei, jointly bought a powerboat called “Baoan 54013.” On January 12 1987, Chen Yonglin went to Shenzhen to meet Chen Yaofu (at large), a smuggler from Hong Kong. Chen Yaofu wanted Chen Yonglin to smuggle a pelt of rare animal to Hong Kong. Chen Yonglin agreed. On that day, Chen Yonglin told what was required of him by Chen Yaofu to Chen Zupei, who agreed to help. At about 9 o'clock that night, Chen Yonglin and Chen Zupei went to the Shenzhen Bay Hotel to meet Chen Yaofu. After plotting, they agreed on the time and place for handing over the contraband.
At noon on January 13, Chen Yaofu put a panda pelt into a nylon bag at Shekou, Shenzhen, and gave it to Chen Yonglin and Chen Zupei. Chen Yonglin instructed Chen Zupei to hide the nylon bag in the hidden cabinet between the decks of the powerboat to evade the customs inspections. The two persons drove the boat out of the country, away from the Pearl River Estuary. When the boat reached the sea area near Dachan Island, they and the contraband were captured and seized by the Guangzhou Customs.
The aforesaid facts were ascertained by witness testimonies, as well as through evidence of the captured illicit goods. In addition to this, both defendant, Chen Yonglin and Chen Zupei, confessed to their acts. (Provided by: UNODC SHERLOC)

The Second Peoples Procuratorate of Beijing v. Zhang Yi

2001

On October 19, 2000, at 10:40 pm, the defendant Zhang Yi (a united Arab emirates passport holder) was contacted by Customs and Border Protection officers in the passenger inspection area of Beijing Capital International Airport. The inspectors asked him to open his bag, but the defendant refused to cooperate initially. Then the bag was searched , and 8 saker falcons were found inside (4 died). The Saker Falcon is a strictly protected species in China, which is not allowed to be exported without the necessary licence.

The Peoples Procuratorate of Shanghai City v. Li Wenjian and Liang Zhiqiang

2003

In December 2001, two Chinese businessmen planned to smuggle a large amount of ivory out of Africa by containers. They contacted defendants Li Wenjian and Liang Zhiqiang and asked them to arrange import declaration documents and to rent a warehouse in Guangdong Province.
In August 2002, Liang Zhiqiang arrived in Shanghai and handed over the bill of landing, receipt, sanitary and phytosanitary certificates, and other relevant documents to Li Wenjian. Then Li signed an import agency agreement with two other companies and entrusted an agent declaration enterprise to declare a 20 inch container carrying rosewood panels to Shanghai Waigaoqiao Customs.
On August 30 2002, the smuggled elephant tusks hidden in African wood were discovered by customs officers. The sized items included 303 African elephant tusks and 1013 pieces of elephant tusks which can be sliced into 408 whole tusks and 17 others in pieces. Shanghai Customs officials estimate the weight of this giant seizure at 3334.6kg, the items had a retail value of more than 178,275,000 RMB. (Provided by: UNODC SHERLOC)

The Peoples Procuratorate of Tibet Autonomous Region v. Angweng Barong

2005

In November 2004, the defendant Angweng Barong bought a rhino horn from an Indian businessman for 55000 India Rupees. Afterward, he wrapped the rhino horn in white cloth in the secret compartment of a small wooden cabinet (old Tibetan cabinet) and then he paid a local carpenter to board up the cabinet.
On December 9, 2014, Angweng Barong took a minivan going to Zhangmu town with the wooden cabinet and other goods and promised to pay the driver 2500 NepalRupee. The minivan was seized during a routine customs inspection, and the 1.076kg rhino horn was found by the customs officers. The seized rhino horn would have fetched 269, 000 RMB on local black market. (Provided by: UNODC SHERLOC)

The Peoples Procuratorate of Guangzhou City Guangdong Province v. Hussein Yahya Yahya Al-Asri

2007

On June 7, 2006, the defendant, Defendant Hussein Yahya Yahya Al-Asri, carrying large amounts of rare wildlife products into China, had violated the laws and regulations of the customs and seriously undermined the social order. His act, according to the Article 151, Article 59 and Article 64 of the Criminal Law of the People's Republic of China, constitutes a crime of smuggling rare animals.
The defendant arrived at Guangzhou Baiyun Airport on a flight from Hong Kong. He was stopped and searched by the customs officials when he was going through the "Non-declare" lane. The customs officials discovered 14 elephant tusks almost weighing 60.73kg hidden in the suitcases of the defendant, worth over 3,500,000 RMB in total.
The defendant alleged that he did not know that passengers were not allowed to carry ivory and ivory products into China, and that he could not read English so he did not fill out the Customs Declaration Form. (Provided by: UNODC SHERLOC)