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Question:"A person shall not hunt or trap specially protecred wildlife or any bird that belongs to a species that is wildby nature and is not a game bird."
We are here analyzing the offences as per criminal law. Given bulletpoint is explainnation of the offence mentioned in the question.
1. The criminal law in Canada drew a line of distinction between the offences which are strict liability to those of the absolute liability. Supreme Court of Canada in R. v. City of Sault Ste-Marie (R. v. City of Sault Ste-Marie , 1978), opined two tire systems of liability, where the Crown will be not be under the burden to prove the mens rea of the accused concerned in the offence. But, under this system, the accused will also be granted the defence arising out of due diligence, only in the strict liability offences and not in absolute liability offences. Again, the Court held, that if there is no clear legislation, then the regulatory offences will be deemed and presumed as the strict liability offences. In (Re B.C. Motor Vehicle Act, 1985), the Supreme Court further upheld this following the (CONSTITUTION ACT- Canadian Charter of Rights and Freedoms, 1982), and included imprisonment, despite of the remoteness, if the offence of strict liability is in violation of section 7 of (CONSTITUTION ACT- Canadian Charter of Rights and Freedoms, 1982). Again, Supreme Court in (William Crocker v Sundance Northwest Resorts Ltd. , 1988), held that if there is voluntary assumption of risk, then that would be a defence for the strict liability cases, but the court specifically held in (Cowles v. Balac, 2005) that contributory negligence cannot be a defence for strict liability offences.
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2. The test which are followed by the Canadian Courts are that the plaintiff or the claimant or the injured party, must beyond any reasonable doubt prove that, the defendant did use the land non- naturally and the defendant brought something in the land which have the possibility to do mischief once that escapes, and the substance must which is the main issue, must be proved that t has escaped, and based on that the plaintiff suffered the loss, either to the property or to himself.
3. The burden of proof for the possible defenses, lies on the defendant and he have to prove beyond reasonable doubt that, the plaintiff was a willing party and have agreed to the risk, i.e. the plaintiff have voluntarily assumed the risk and also the defence of due diligence, must be proved by the defendant, to prove that there was no ill intention acting on his behalf and that there is no mens rea.
4. An accused individual can defend himself, if he or she can demonstrate that he or she was in receipt of a wrongful information, so provided by the wildlife officer about the trapped bird being a game bird and not a wild bird, based on the decision of British Columbia Provincial Court, in (Regina v George Taylor and David Atkinson, 2002), where, the defendant on the advise of a conservation officer accepted salmon fish as a gift, and the conservation officer wrongly advised them about it, so the Court held that, the information so given by the conservation officer is with authority and is reasonable to accept that information. So, yes, this can be a defence for acting in lieu with wrongful information, received from someone who deemed to have knowledge and can be relied upon by any reasonable man.
5. If the charge had been laid under part I, section 9.1 of the (Provincial Offences Act- R.S.O. 1990, CHAPTER P.33, 1990), and the defendant, after requesting a trial date, fails to attend the trial on the set date, then the defendant may be found guilty. Again, on a scheduled date, if the defendant could not attend, then someone else on behalf of the defendant will have to approach the Court and ask the justice of the peace for rescheduling, but if the date is for the trial date, then under normal circumstances, the justice of peace do not reschedule, and so the case will move ahead, and so the defendant can also be held guilty
6. If the charge had been laid under Part III of (Provincial Offences Act- R.S.O. 1990, CHAPTER P.33, 1990) and the defendant fails to attend the trial on the set date without any lawful excuse, then, under section 42 (1) of (Provincial Offences Act- R.S.O. 1990, CHAPTER P.33, 1990), then the defendant is guilty of an offence and is also liable to pay a fine of $2000, or also imprisonment but not for more than thirty days and sometimes both if convicted.
7. If the defendant fails to attend trial because he did not know about his trial date and learns about the conviction that was made in his absence, his options as per the (Provincial Offences Act- R.S.O. 1990, CHAPTER P.33, 1990) are that the Court can also call for adjournment of the hearing and, can also issue a summons for making the defendant to appear or can also issue a warrant in the manner as described, for the arrest of the defendant under section 54(1) of (Provincial Offences Act- R.S.O. 1990, CHAPTER P.33, 1990).
8. When the defendant have failed to attend trial because he did not know about his trial date, and learns about the conviction that was made in his absence and he finally discovers from the court documents that the decision was rendered more than 2 years after the offence date, in these circumstances as a paralegal, the advise to the client that he has grounds for filing of a motion to dismiss the case based on violation of his section 11(b) Charter right than pursuing the POA procedures, would have been possible, if it would have served the infringement of the economic right as was held by Supreme Court in (R. v. Delaronde, 1997)
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CONSTITUTION ACT- Canadian Charter of Rights and Freedoms. (1982). Retrieved from http://laws-lois.justice.gc.ca/eng/Const/page-15.html
Cowles v. Balac, 2005 CanLII 2038 (ON SC) (ONTARIO Superior Court 2005).
Provincial Offences Act- R.S.O. 1990, CHAPTER P.33. (1990). Retrieved from https://www.ontario.ca/laws/statute/90p33#top
R. v. City of Sault Ste-Marie , [1978] 2 SCR 1299 (Supreme Court of Canada 1978).
R. v. Delaronde, [1997] 1 SCR 213 (Supreme Court of Canada 1997).
Re B.C. Motor Vehicle Act, [1985] 2 SCR 486 (Supreme Court Canada 1985).
Regina v George Taylor and David Atkinson, [2002] B.C.J. No. 1846 (British Columbia Provincial Court 2002).
William Crocker v Sundance Northwest Resorts Ltd. , [1988] 1 SCR 1186, 1988 CanLII 45 (SCC) (Supreme Court Canada 1988).
Cowles v. Balac, 2005 CanLII 2038 (ON SC) (ONTARIO Superior Court 2005).
Provincial Offences Act- R.S.O. 1990, CHAPTER P.33. (1990). Retrieved from https://www.ontario.ca/laws/statute/90p33#top
R. v. City of Sault Ste-Marie , [1978] 2 SCR 1299 (Supreme Court of Canada 1978).
R. v. Delaronde, [1997] 1 SCR 213 (Supreme Court of Canada 1997).
Re B.C. Motor Vehicle Act, [1985] 2 SCR 486 (Supreme Court Canada 1985).
Regina v George Taylor and David Atkinson, [2002] B.C.J. No. 1846 (British Columbia Provincial Court 2002).
William Crocker v Sundance Northwest Resorts Ltd. , [1988] 1 SCR 1186, 1988 CanLII 45 (SCC) (Supreme Court Canada 1988).
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