Territorial Court

R. v. Bergen, 2003 NWTTC A9
Date: 20030702

IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN


- v -


JEREMY SHANE BERGEN


Transcript of the Reasons for Sentence delivered by The Honourable Judge B.A. Bruser, in Norman Wells, in the Northwest Territories, on the 16th day of June, A.D. 2003.


APPEARANCES:

Mr. J. Cliffe:   Counsel on behalf of the Crown

Mr. R. Gorin:   Counsel on behalf of the Defence


Charge under s. 86(1) Wildlife Act


THE COURT: The offence is pursuant to section 86(1) of the Wildlife Act. That provision provides that nobody shall make or give false or misleading entry and so forth, in an application for a licence required by the Act or the Regulations. The accused committed this offence by giving false information in an application for a guide licence. The date of the application was July 4th, 2002. The application for the guide licence and a copy (it would appear to be a carbon copy of the guide licence) is Exhibit 1. Exhibit 2 is a history of his violations under the Alberta Wildlife Act. There are three violation tickets entered together as Exhibit 2 in this proceeding.

Defence counsel, and the accused, when he had something to say, said that the accused did not read the fine print in the application, Exhibit 1. I have trouble accepting this point. The application is a simple document. It is on a short piece of paper. The so-called “fine print” is not fine print. It is the same size as other print; not all the other print, but some of the other print in the document. In fact he apparently wrote himself or certainly acknowledged that this was accurate, that he was employed by Ram Head. The words “I am employed by” appear to be the same-sized print as the last part that follows in the last section of the application, being the

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declaration. He signed the declaration.

Additionally, he has been guiding for 11 years. I think it a reasonable inference that he has completed applications for guiding licences in the past.

Furthermore, he is well-educated. He has a grade 12 education and that is followed by an advanced diploma, and he has a Class 1 licence to operate heavy motor vehicles. The so-called “fine print” appears to be the same as the print in the licence itself authorizing him to act as a guide. He must have read it or he would not have been guiding.

He also, at the time he completed the application, had a history of the violations from Alberta, to which I have referred. It is noteworthy that these are for (1) unauthorized hunting on occupied land; (2) providing guiding services on privately held land without written authorization; and (3) failing to immediately affix a tag as prescribed.

The history of what happened in Alberta, joined with what happened in the Northwest Territories, satisfy me that this offender has very little regard for the proper process, process that is critical in the decision-making process of government officials who issue licences and process that is critical for the accused to earn his livelihood.

The system in place depends to a large extent

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upon trust. As Crown counsel has said, one cannot expect a wildlife officer to be behind every rock and every tree. Wildlife officers trust people, and I think it a further reasonable inference to find that they trusted Mr. Bergen. It took a while before they learned of the prior convictions in Alberta, and after they did they acted upon the information.

The Crown characterizes this as a serious offence. I agree. It strikes, as Crown counsel has correctly submitted, at the integrity of the licencing system under the Wildlife Act.

The maximum fine available for the Court's consideration is $1,000. The other part of the available punishment is imprisonment not exceeding one year. There could also be a fine and imprisonment. Crown counsel is being reasonable and fair in not seeking imprisonment.

The accused has apologized. He says that he relies on his work with Ram Head. From this, I take it he would like to guide again in the Northwest Territories.

The guilty plea has been entered at the first opportunity.

The accused came here from Alberta. He paid $950 for airfare and has been put to the extra expense of paying for accommodation and food. I think it is appropriate to take these expenses into account.

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He ought to be given significant credit for the guilty plea. This is something that tends to be consistent in the sentencing of offenders in this jurisdiction. There are a number of reasons for this, which in most cases are obvious, as they are here.

The Crown is also asking the Court to make an order under sub-section 12(1) (c). The Crown asks under this subsection, that the Court prohibit the issue or renewal of any further licence or permit that the accused may apply for in order to guide or otherwise. The Crown says this should be for a period of two years.

Upon further questioning by the Court, it appears that the renewable resources officials would have in any event a discretion as to whether or not a guide licence or other documentation should issue to this offender after today. In other words, if I do not make a sub-section 12(1) (c) order, it is still open for the officials to deny the accused a guide licence upon application.

I decline to make the order in this case. I decline to make it because it is my preference in the circumstances of this case, including the co-operation of the accused today, to leave the issue to be worked out by renewable resources officials. They may be pursuing a proper avenue by not issuing a guide licence to this offender for a period of time. On the

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other hand, it may be that after today the accused in discussions with them could work out some sort of a plan or some arrangement whereby he should be issued a licence.

It is not to be overlooked that guides in this jurisdiction have responsible positions, and because of licenced guides a significant amount of money is brought into this jurisdiction each hunting season.

For these reasons, and there may be other reasons that I have been unable to identify, I think it preferable to decline to make the order and leave the issue to be resolved by renewable resources.

Sentencing tends to be a package. If I had made the prohibition, that factor, along with the expenses that the accused has been put to to come here, would have led me to make a fine at the low end. I have not made the prohibition. That leaves a fine as the sole remaining component to be dealt with. It will be toward the high end. This is in order to discourage this offender from doing this kind of thing again, and it is an effort to discourage others from doing so.

There will be a fine of $750, along with a 15 percent victim fine surcharge. I could make the surcharge higher, but I decline to do so.

Mr. Gorin, how long would he need to pay this?

MR. GORIN:   I'm going to suggest two months.

THE COURT:   He can have it. I'll give him to

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Monday, August 18th this year. Does the Crown have anything further?

MR. CLIFFE:   No, I don't, Your Honour.

THE COURT:   Does the defence in this matter?

MR. GORIN:   No, sir.

THE COURT:   Mr. Bergen, you have to remain. The Clerk of the Court has a document called a fine order to go over with you. After she does that, you are free to leave.

I warn you, if this kind of thing happens again in this jurisdiction, I can't conceive of any argument that would likely persuade the court not to grant a prohibition measured in years. I am not saying that would definitely happen, but that is where you are heading with this, or perhaps even imprisonment. This has to stop.

It may be in any event that you may not be issued with a licence. With what I have before me, it is my recommendation that one not issue to you. But I am not going to make the order; I leave others to make the judgment call.


Certified correct to the best of my skill and ability.

Annette Wright, RPR, CSR(A)
Court Reporter

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