Environmental Appeal Board

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1 Environmental Appeal Board Fourth Floor 747 Fort Street Victoria British Columbia Telephone: (250) Facsimile: (250) Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1 Website: DECISION NO WIL-011(a) In the matter of an appeal under section of the Wildlife Act, R.S.B.C. 1996, c BETWEEN: Allan R. Steele APPELLANT AND: BEFORE: Deputy Director, Fish, Wildlife and Habitat Management A Panel of the Environmental Appeal Board Tony Fogarassy, Panel Chair RESPONDENT DATE: May 9 and 10, 2012 PLACE: Abbotsford, BC APPEARING: For the Appellant: For the Respondent: Allan R. Steele Anthony Dalmyn, Counsel APPEAL [1] The Appellant appeals the decision issued on October 12, 2011, by Michael J. Chutter, Deputy Director, Fish, Wildlife and Habitat Management, Ministry of Forests, Lands and Natural Resource Operations (the Deputy Director ). [2] The Deputy Director found that the Appellant committed eight contraventions of the Wildlife Act, R.S.B.C. 1996, c. 488 and, based on those findings, he: 1. Suspended the Appellant s hunting licence privileges for a three-year period from December 1, 2011 to November 30, Cancelled the Appellant s hunting licence as of December 1, Barred the Appellant from obtaining or renewing a hunting licence and from applying for a Limited Entry Hunting authorization before December 1, Prohibited the Appellant from hunting before December 1, [3] The Environmental Appeal Board has the authority to hear this appeal under section of the Wildlife Act. Section 101.1(5) of the Wildlife Act provides that, on an appeal, the Board may:

2 DECISION NO WIL-011(a) 2 (a) send the matter back to the regional manager or director, with directions, (b) confirm, reverse or vary the decision being appealed, or (c) make any decision that the person whose decision is appealed could have made, and that the board considers appropriate in the circumstances. [4] The Appellant requests that the Deputy Director s decision, and the resultant penalty, be reversed. BACKGROUND [5] The activities that are the basis of the Deputy Director s decision occurred during an August 2005 hunting trip in northeastern British Columbia. The eight contraventions found by the Deputy Director relate to the killing of a moose, the killing of a bear, and statements made to conservation officers. The Hunting Trip [6] The Appellant is 68 years of age and describes himself as an experienced hunter of wildlife. The Appellant started hunting with his father when he was 12 years old. The Appellant, in turn, hunted with his son, Kevin Steele, until August [7] In August 2005, the Appellant, Brian McCormick (a friend of Kevin Steele), Chester Thornton, Lyall Pelltier, William Elliott and Kevin Steele (the Steele hunting party ) travelled to Thutade Lake, northwest of the community of Mackenzie, to hunt for caribou, moose and other wildlife. In addition, it appears that two friends of Chester Thornton, Robert Sallis and Keith Purvin-Good, were also participants in the Steele hunting party. [8] The Steele hunting party arrived at Thutade Lake on or about August 14, 2005, in time for the opening of hunting season on August 15, [9] The Appellant held a Limited Entry Hunting permit for moose in MU (Wildlife Management Unit) 7-39, which covers Thutade Lake. [10] Also in August 2005, a hunting party comprised of William Black, David Swansborough, Brad Boyes and John Heinricks (the Black hunting party ) travelled to Thutade Lake. [11] On August 23, 2005, while en route to Thutade Lake, the Black hunting party was joined by Doug Forsdick and Kevin Nixon. [12] Unbeknownst to the Black hunting party members, Doug Forsdick and Kevin Nixon were undercover conservation officers (individually UCO Forsdick and UCO Nixon, and together as UCOs Forsdick and Nixon ) of the Special Investigations Unit of the Conservation Officer Service of British Columbia, Ministry of Environment. [13] UCOs Forsdick and Nixon were continuing an investigation commenced in 2003 of potential illegal hunting and selling of wildlife meat by an Indian reserve resident to William Black.

3 DECISION NO WIL-011(a) 3 [14] In the course of the undercover investigation, UCO Nixon was invited by William Black to join a hunting party with plans to hunt at Thutade Lake in August [15] On August 24, 2005, UCOs Forsdick and Nixon and the Black hunting party members established a campsite at Thutade Lake. [16] On August 24, 2005, the now six member Black hunting party had an initial encounter and conversation with the Steele hunting party at Thutade Lake. [17] Until this conversation, the members of the Black hunting party and the Steele hunting party were not known to each other. Oral Statements to UCOs Forsdick and Nixon [18] During and after this initial conversation between the two hunting parties, UCOs Forsdick and Nixon received a number of oral statements from the Appellant, and others in the two hunting parties, indicating various contraventions of the Wildlife Act by the Appellant. The Appellant, at the appeal hearing, denied making certain of the oral statements to UCOs Forsdick and Nixon. [19] These statements were supplemented by additional statements by certain members of the Black and Steele hunting parties made to, or in the presence of, the undercover conservations officers. The statements relevant to this appeal are as set out below. Shooting a moose between August 17 and 25, 2005 [20] While in a kitchen tent, UCO Forsdick was told by the Appellant that the Appellant shot a moose and dragged it behind a boat to field dress it near camp. In his detailed notes, UCO Forsdick wrote that the Appellant stated to him on August 24, 2005 that he shot his moose this year down by the lake at the narrows. He stated that he just about ran out of gas dragging it back. He stated it took him 6 hours then he got it back, dragged it up on shore and gutted it and hung it. [21] Further, on August 25, 2005, Kevin Steele stated to UCO Forsdick that his father (the Appellant) had shot a moose. [22] David Swansborough, a member of the Black hunting party, in a statement dated September 12, 2005 provided to a conservation officer during the investigation, stated that the Appellant told him he shot a moose. [23] The evidence of Chester Thornton, in a statement dated September 6, 2005, is that he and the Appellant were hunting together on August 20, 2005 and that he (Chester Thornton) shot a moose, tied a rope to it and towed it back to camp. [24] The evidence of UCOs Forsdick and Nixon was that they spoke with Kevin Steele at the camp who stated that Chester Thornton had not shot any animals during the hunting trip. [25] When stopped at a roadside inspection on August 27, 2005, the Appellant did not have a cancelled moose tag.

4 DECISION NO WIL-011(a) 4 Shooting a bear [26] UCOs Forsdick and Nixon received a statement from the Appellant on August 24, 2005 that he had killed a bear a short distance from camp, and that he had no intention of retrieving the bear. Brad Boyes moose and the Appellant [27] On August 25, 2005, UCOs Forsdick and Nixon assisted Brad Boyes in retrieving a moose shot by Mr. Boyes. The Appellant subsequently assisted Brad Boyes and John Heinricks to hang, skin and wrap the moose in cheesecloth. [28] At this time, UCOs Forsdick and Nixon noted that there was no indication that a species licence had been cancelled for the moose shot by Brad Boyes. Statements made by the Appellant at August 27, 2005 Roadside Inspection [29] On August 27, 2005 at 9:30 am, three members of the Steele hunting party departed the Thutade Lake camp. The Appellant and Kevin Steele departed in one vehicle, and William Elliott departed in another vehicle. [30] The Appellant was observed towing a refrigeration unit (known as a reefer unit ) containing caribou and moose, including the moose shot by Brad Boyes that was covered in cheesecloth. UCOs Forsdick and Nixon learned that the caribou and moose loaded into the Appellant s reefer unit were to be transported to the lower mainland. [31] At 3:30 pm on August 27, 2005, William Elliott was stopped at a roadside inspection by Conservation Officer Walbauer ( CO Walbauer ) and RCMP Constable Spooner ( RCMP Cst. Spooner ). CO Walbauer had been informed, in advance, that the Appellant, Kevin Steele and William Elliott had departed Thutade Lake and that an inspection of their vehicles was requested by UCOs Forsdick and Nixon. [32] William Elliott explained at the inspection that he had harvested a caribou and that it was in a vehicle travelling behind him. CO Walbauer inspected William Elliott s hunting licence and determined that a caribou had been harvested. [33] CO Walbauer determined that William Elliott had not provided the occupants of the other vehicle with a transport letter authorizing them to transport wildlife for Mr. Elliott. CO Walbauer provided William Elliott with a transport letter for William Elliott to complete. [34] At 4:45 pm, the Appellant and Kevin Steele were stopped for inspection by CO Walbauer and RCMP Cst. Spooner. [35] The Appellant advised CO Walbauer that he had harvested a moose and it was in the reefer unit he was towing. The Appellant also advised CO Walbauer he was transporting other hunters animals as well in the reefer unit. [36] Inspection of the Appellant s reefer unit revealed four moose and two caribou. The Appellant provided the letters to transport game in the reefer unit as follows: 1. Chester Thornton to William Elliott for one moose;

5 DECISION NO WIL-011(a) 5 2. Keith Purvin-Good to William Elliott for one moose and one caribou; and 3. Robert Sallis to Allan Steele for one moose. [37] William Elliott claimed the second caribou, while the Appellant claimed the remaining, fourth moose. [38] The Appellant identified his moose in the reefer unit as the one covered in cheesecloth. [39] Inspection of the Appellant s hunting licence indicated that the Appellant had failed to cancel his species licence for the moose he claimed to have harvested, the only animal covered in cheesecloth in the reefer unit. The Appellant stated to CO Walbauer that, when he shot his moose, it was late and raining and he forgot to cancel his licence. CO Walbauer knew this to be a false statement, as CO Walbauer was informed by UCOs Forsdick and Nixon that Brad Boyes had harvested that moose (with the assistance of UCOs Forsdick and Nixon). [40] As the undercover operation was still ongoing, CO Walbauer did not seize the moose shot by Brad Boyes but claimed by the Appellant. CO Walbauer did issue a violation ticket to the Appellant for failure to immediately cancel his species licence. [41] The Appellant subsequently cancelled his moose species licence and paid the fine associated with the violation ticket. [42] On August 30, 2005, UCOs Forsdick and Nixon departed Thutade Lake. Black Bear Investigation [43] On September 1, 2005, a search warrant for the Black hunting party camp on Thutade Lake was executed. [44] In the afternoon of September 1, 2005, CO Walbauer visited Thutade Lake. CO Walbauer located a decaying black bear carcass on the lakeshore approximately one kilometer from the Black hunting party campsite. CO Walbauer took a number of photographs of the bear carcass, which were entered as evidence in this appeal. Events following the undercover investigation [45] The Appellant was the subject of criminal charges laid in August 2006 under the Wildlife Act arising from the August 2005 hunting trip. [46] The charges were stayed in late [47] In a letter dated March 5, 2010 from Tom Ethier, Director, Fish, Wildlife and Habitat Management, the Appellant was given notice of the alleged Wildlife Act contraventions and an opportunity to respond. In his letter, Mr. Ethier enclosed written materials containing allegations against the Appellant and stated, I have been asked to consider those materials and exercise my authority under section 24 of the Wildlife Act to remove your [hunting] privileges as a result. Mr. Ethier also advised that he has the authority to suspend or cancel hunting and firearm carrying privileges for up to 30 years for any cause I consider sufficient.

6 DECISION NO WIL-011(a) 6 [48] Attached to the letter were 22 documents including investigation notes, statements, photographs, portions of the legislation and various other materials relating to the alleged contraventions. [49] The Appellant provided a response in a letter received by the Respondent on April 29, The Deputy Director s Decision [50] The Deputy Director took over responsibility for the Appellant s file from Mr. Ethier. [51] After reviewing the file materials and the Appellant s response, the Deputy Director issued his decision on October 12, Under the heading contraventions, the Deputy Director states that, at court, all charges against you were stayed; however, I find that you contravened the Wildlife Act as follows:. [52] The Panel has summarized his findings of contravention below: A moose shot on Thutade Lake between August 17 and 25, 2005 [53] The Deputy Director accepted the undercover conservation officers evidence that the Appellant shot a moose on the lake. He concluded: (1) the Appellant shot a moose and his failure to immediately cancel his licence was a contravention of section 7 of the Hunting Licensing Regulation, and (2) as the Appellant did not cancel his licence for the moose, the Appellant contravened section 33(2) of the Wildlife Act for being in illegal possession of dead wildlife. Shooting a black bear in August 2005 [54] The Deputy Director found that the decaying black bear carcass found by the conservation officers had been shot by the Appellant on or about August 24, The Deputy Director concluded that the Appellant: (1) failed to immediately cancel his licence in contravention of section 7 of the Hunting Licensing Regulation, and (2) contravened section 35(2)(a) of the Wildlife Act by failing to retrieve the bear and including it in his bag limit. Making false statements to conservation officers on August 27, 2005 at a roadside inspection [55] The Deputy Director found that the Appellant made a charter warned statement to CO Walbauer that he shot the moose in the cheesecloth but had forgotten to cancel his moose tag. The Deputy Director accepted the undercover officers evidence that this cheesecloth-covered moose had, in fact, been shot by Brad Boyes. The Deputy Director concluded that the Appellant: (1) knowingly made a false statement to an officer when required to provide information in contravention of section 82(1) of the Wildlife Act,

7 DECISION NO WIL-011(a) 7 (2) knowingly made a false statement in a book, record or report (cancelling a licence for an animal that the Appellant did not shoot), which is another contravention of section 82(1) of the Wildlife Act, (3) allowed his licence to be used by another person, i.e., by cancelling the licence for a moose shot by another person (Brad Boyes) in contravention of section 81(1) of the Wildlife Act, and (4) was in unlawful possession of dead wildlife contrary to section 33(2) of the Wildlife Act, by possessing Brad Boyes moose which Mr. Boyes had not cancelled his tag for, and for which the Appellant had no transfer document. [56] As stated earlier in this decision, the Deputy Director cancelled the Appellant s hunting licence and suspended his hunting licence privileges for three years, making him ineligible for a hunting licence or Limited Entry Hunting authorization before December 1, The Appeal [57] The Appellant appealed the decision on the grounds that he did not make statements at Thutade Lake to UCOs Forsdick and Nixon that he shot a bear and a moose or that, if he did, they were hunting stories told around a campfire with the consumption of alcohol. Further, the Appellant asserts that he was tricked by the UCOs into saying things that were not true, that the UCOs accepted the most damaging stories as fact, and that the conservation officers encouraged them (the hunters) to violate the Act. [58] The Appellant also submits that he has been prejudiced by the delay of receiving the letter dated March 5, 2010 from Tom Ethier, Director, Fish, Wildlife and Habitat Management. The Appellant states that over five years had passed without any charges or notices so he did not keep his original documents. He also states that he has been prejudiced by the time that passed as his memory of that particular hunting trip gets mixed up with other trips. He asks that the Deputy Director s decision be reversed. [59] The Respondent submits that the Board should give deference to the Deputy Director s judgment in this case, even if it would not have made exactly the same decision in this instance. The Respondent further submits that there was sufficient cause under section 24(2) of the Wildlife Act for the prohibition of the Appellant from hunting and the suspension of hunting privileges for a period of three years. In fact, the Respondent submits that the three-year suspension is lenient, and asks the Board to increase the duration of the suspension to six years. ISSUES [60] This appeal raises the following issues: 1. Whether this appeal may be conducted as a hearing de novo (a new hearing), and whether the Board must give deference to the Deputy Director s decision.

8 DECISION NO WIL-011(a) 8 2. Whether the Appellant has been prejudiced due to delay (i.e., the passage of time as between the date of the Appellant s contraventions of the Wildlife Act and the Deputy Director s decision). 3. Assuming that the Board may conduct the hearing as a hearing de novo, which of the Appellant s contraventions of the Wildlife Act are confirmed, reversed or varied? 4. If the Appellant has contravened the Wildlife Act, was the Appellant tricked by the undercover investigation such that he has a defence to the contraventions. 5. What is the appropriate penalty in the circumstances of the appeal? RELEVANT LEGISLATION The Act [61] The Wildlife Act is a comprehensive scheme of wildlife management in British Columbia, including the regulation of hunting. [62] The following sections of the Wildlife Act are relevant to this appeal: 2(1) Ownership in all wildlife in British Columbia is vested in the government. 15(1) The director, or a person authorized by the director, may issue and authorize the issue of licences in the form, with the content and valid for the term the director, or a person authorized by the director, specifies. 24(2) After providing an opportunity for the person to be heard, the director may, for any cause considered sufficient by the director, do any of the following: (a) (b)... prohibit, for a period within prescribed limits, the person from hunting, angling or carrying a firearm; cancel or suspend, for a period within prescribed limits, any limited entry hunting authorization or licence that is issued to the person under this Act. (5) If a licence or limited entry hunting authorization is cancelled, the director may order that the person is ineligible to obtain or renew a licence or limited entry hunting authorization for a period, within the prescribed limits, and the director must inform the person of the period of ineligibility. 33(2) A person commits an offence if the person has dead wildlife or a part of any wildlife in his or her possession except as authorized under a licence or permit or as provided by regulation.

9 DECISION NO WIL-011(a) 9 35(2) A person commits an offence if the person hunts wildlife and kills or injures that wildlife and fails to make every reasonable effort to (a) retrieve the wildlife, and if it is alive to kill it and include it in his or her bag limit, and 81 Except as authorized by regulation or as otherwise provided under this Act, a licence, permit or limited entry hunting authorization is not transferable, and a person commits an offence if the person (a) (b) allows his or her licence, permit or limited entry hunting authorization to be used by another person, or uses another person s licence, permit or limited entry hunting authorization. 82(1) A person commits an offence if the person knowingly makes a false statement (a) (b) (c) (d) The Regulations in order to obtain a licence, permit or limited entry hunting authorization, on a licence or permit issued by him or her under this Act, in a book, record, certificate, report or return made, kept or furnished under this Act, or to an officer engaged in the discharge of his or her duties under this Act, if the person is required to provide information under this Act. [63] The following sections of regulations promulgated pursuant to the Wildlife Act are relevant to this appeal: Hunting Licensing Regulation, B.C. Reg. 8/99 Licence must be cancelled 7(1) If a person hunts and kills big game, he or she commits an offence unless, immediately after he or she kills the big game and before handling the big game killed, he or she cancels the appropriate species licence in accordance with the instructions on that licence. [The definition of big game in section 1(1) of the Wildlife Act includes black bear and moose.] Wildlife Act General Regulation, B.C. Reg. 340/82 Periods of ineligibility for a licence 7.04(1)A person convicted of an offence listed in Column 1 of the Table in

10 DECISION NO WIL-011(a) 10 this section, is ineligible to obtain a hunting licence for the period for that offence indicated in Column 4 of the Table. Column 1 (hunting) Firearm Act - section 3 Wildlife Act - section 22 Wildlife Act - section 24 (6) (a) or (b) Wildlife Act - section 24 (7) (a) or (b) Wildlife Act - section 24 (14) (a) or (b) (i) Wildlife Act - section 26 (1) (a), (e) or (g) Wildlife Act - section 26 (1) (f) Wildlife Act - section 28 Wildlife Act - section 81 with reference to a hunting licence Wildlife Act - section 82 with reference to a hunting licence Table Column 2 (angling) Wildlife Act - section 24 (6) (a) or (d) Wildlife Act - section 24 (7) (a) or (d) Wildlife Act - section 24 (14) (a) or (b) (iii) Wildlife Act - section 81 with reference to an angling licence Wildlife Act - section 82 with reference to an angling licence Column 3 Repealed. [B.C. Reg. 340/2005, s. 14 (d).] Column 4 (period) 3 years 2 years 2 years 3 years 3 years 5 years 3 years 3 years 1 year 2 years Prescribed limits under section 24 (5) and (12) of Act 7.05 The prescribed limit for purposes of section 24 (5) and (12) of the Act is 30 years. DISCUSSION AND ANALYSIS 1. Whether this appeal may be conducted as a hearing de novo (a new hearing), and whether the Board must give deference to the Deputy Director s decision. [64] The Respondent, in his hearing submission and Statement of Points, advanced the position that the Board should defer to the Deputy Director s judgment and decision. In support, the Respondent cites the Board s September 1, 1998 decision in Thomas Schreiber v. Deputy Director of Wildlife, [1998] B.C.E.A. No. 57 (Q.L.), where the Board writes that there usually will be no reason for the Board to interfere with the Deputy Director s discretion and judgment.

11 DECISION NO WIL-011(a) 11 [65] With respect, this Panel disagrees. Even in Schreiber, the Board stated that it has de novo authority. [66] The powers accorded to the Board for appeals under section of the Wildlife Act are broad, and the ability for the Board to conduct an appeal by way of a new hearing is clear. Section of the Wildlife Act states, in part: (4) The appeal board may conduct an appeal by way of a new hearing. (5) On an appeal, the appeal board may (a) send the matter back to the regional manager or director, with directions, (b) confirm, reverse or vary the decision being appealed, or (c) make any decision that the person whose decision is appealed could have made, and that the board considers appropriate in the circumstances. [67] This matter was addressed by the Board in another Wildlife Act appeal in In Jack Leggett v. Director, Wildlife Branch, [2009] B.C.E.A. No. 13 (Q.L.), the Board stated as follows at paragraphs 47 to 50: 47 The Board was created by statute to be an independent body to hear environmental appeals. Section 93 of the current Environmental Management Act continues the Board's jurisdiction to hear appeals under several environmental statutes, including the Wildlife Act. Additionally, the Board's expertise in environmental issues has been recognized in several decisions (see the list in Beazer East, Inc. v. Environmental Appeal Board et al., 2000 BCSC 1698). 48 With respect to this appeal, the Panel notes that the Board's authority to review decisions made by a director under the Wildlife Act is explicitly set out in section of that Act. Section 101.1(1) states that a person affected by a decision of a director that affects a licence or permit, may appeal the decision to the Board. Section sets out the powers of the Board with respect to an appeal; specifically, (4) The appeal board may conduct an appeal by way of a new hearing. (5) On an appeal, the appeal board may (a) send the matter back to the regional manager or director with directions, (b) confirm, reverse or vary the decision being appealed, or (c) make any decision that the person whose decision is appealed could have made, and that the board considers appropriate in the circumstances. 49 The Panel regards these provisions as explicitly allowing the Board to hold a "new hearing" (or hearing de novo) and to consider new evidence, not just what the Director considered. Further, the Board's ability to make "any" decision the Director could have made, means it does not

12 DECISION NO WIL-011(a) 12 have to defer to the Director. The Board, as an independent tribunal, may take a fresh look at the evidence and issues that it considers relevant in any appeal (see: British Columbia Railway Company et al v. Director of Waste Management, (Appeal No WAS-018(b), March 3, 2004) (unreported)). 50 The Panel finds that the Board has the jurisdiction, and is capable of making an independent decision, based on the facts and submissions presented to it during an appeal.. [Underlining in original] [68] This Panel agrees. Accordingly, this hearing has been conducted as a new hearing of the evidence and no deferrence is owed to the Deputy Director. 2. Whether the Appellant has been prejudiced due to delay (i.e., the passage of time as between the date of the Appellant s contraventions of the Wildlife Act and the Deputy Director s decision). [69] The Appellant argued that the time had run-out on the Respondent to find the Appellant in contravention of the Wildlife Act. The Appellant s argument is that he is unfairly prejudiced if the Deputy Director is able to convict him with regulatory contraventions years after the fact. [70] The Supreme Court of Canada in Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 [Blencoe] addressed remedies available in administrative law proceedings for delays caused by government. The Supreme Court stated that there must be proof of significant prejudice which results in an unacceptable delay. [71] The time that it took to dispose of the criminal charges against the Appellant, which culminated in a stay of proceedings in late 2007, and then to notify the Appellant that the Director was considering administrative sanctions, was approximately two years and five months. [72] A further period of 18 months transpired until the issuance of the Deputy Director s decision letter to the Appellant dated October 12, However, during this latter period, the Appellant was on notice of the possible administrative sanctions. [73] The Panel received no evidence from the Appellant, that he was prejudiced by this delay, much less that he suffered significant prejudice as per Blencoe. [74] Therefore, the Panel finds that the passage of time between the Appellant s contraventions (in August 2005), and the date of the Deputy Director s decision (October 12, 2011), did not result in an unacceptable delay such that the Deputy Director lost jurisdiction over the matter or that his decision should be reversed.

13 DECISION NO WIL-011(a) Assuming that the Board may conduct the hearing as a hearing de novo, which of the Appellant s contraventions of the Wildlife Act are confirmed, reversed or varied? [75] As set out at the start of this decision, the Deputy Director found that the Appellant committed eight contraventions in relation to the moose shot on Thutade Lake between August 17 and 25, 2005, the black bear shot near the camp, and the statements made to undercover conservation officers at the roadside inspection on August 27, The Deputy Director found that the Appellant: (1) shot a moose and failed to immediately cancel his licence in contravention of section 7 of the Hunting Licensing Regulation; (2) contravened section 33(2) of the Wildlife Act by being in illegal possession of dead wildlife (i.e., the moose); (3) shot a black bear on or about August 24, 2005 and failed to immediately cancel his licence in contravention of section 7 of the Hunting Licensing Regulation; (4) failed to retrieve the bear and include in it his bag limit contrary to section 35(2)(a) of the Wildlife Act; (5) knowingly made a false statement to an officer when required to provide information in contravention of section 82(1)(d) of the Wildlife Act (stating that he shot the moose that Brad Boyes had shot); (6) knowingly made a false statement in a book, record or report by canceling a licence for an animal (the moose) that the Appellant did not shoot in contravention of section 82(1)(c) of the Wildlife Act; (7) allowed his licence to be used by another person (i.e., by cancelling a licence for the moose shot by Brad Boyes) which is a contravention of section 81(1)(a) of the Wildlife Act; and (8) was in unlawful possession of dead wildlife by possessing Brad Boyes moose which Brad Boyes had not cancelled his tag for and for which the Appellant had no transfer document, in contravention of section 33(2) of the Wildlife Act. The Panel s findings on the eight contraventions [76] The Panel has reviewed the information that was before the Deputy Director, and the evidence presented at the hearing of the appeal, and finds as follows. Shooting a moose on Thutade Lake between August 17 and 25, 2005 [77] At the hearing, the Appellant denied shooting a moose. The Appellant stated during the hearing, and in his letter received by the Director on April 19, 2010 (but dated August 26, 2010), that any statements he may have made were, in fact, hunting stories told around a campfire and embellished with the consumption of alcohol.

14 DECISION NO WIL-011(a) 14 [78] The Panel places no weight on the Appellant s denial nor accepts that the Appellant s statements were made in the context of hunting stories told around a campfire with the consumption of alcohol. The Panel finds that the most consistent and reliable evidence is that Appellant shot a moose between August 17 and 24, [79] The Panel accepts the written and oral evidence of UCOs Forsdick and Nixon regarding the Appellant shooting a moose. The Panel notes that the Appellant cross-examined each of UCOs Forsdick and Nixon. [80] In particular, the Panel accepts the evidence that, while in a kitchen tent, UCO Forsdick was told by the Appellant that the Appellant had shot a moose and dragged it behind a boat to field dress it near camp. In his detailed notes, UCO Forsdick wrote that the Appellant stated to him on August 24, 2005 that he shot his moose this year down by the lake at the narrows. He stated that he just about ran out of gas dragging it back. He stated it took him 6 hours then he got it back, dragged it up on shore and gutted it and hung it. The oral testimony of UCO Forsdick at the hearing confirmed his notes. [81] Further, on August 25, 2005, Kevin Steele stated to UCO Forsdick that his father (the Appellant) had shot a moose. This was corroborated by David Swansborough, a member of the Black hunting Party, who, in his September 12, 2005 statement provided to a conservation officer during the investigation, stated that the Appellant told him that he had shot a moose. [82] The Panel has considered the conflicting evidence of Chester Thornton. In a statement to a conservation officer investigating the matter on September 6, 2005, Mr. Thornton said that he and the Appellant were hunting together on August 20, 2005 and that he, Chester Thornton, shot a moose, tied a rope to it and towed it back to camp. However, the Panel also notes the evidence of UCOs Forsdick and Nixon that, during a conversation with Kevin Steele, Kevin Steele stated that Chester Thornton had not shot any animals during the hunting trip. [83] The Panel prefers the evidence of the undercover officers that Kevin Steele told them, while at the Thutade Lake camp, that the Appellant had shot a moose, to the statement of Mr. Thornton. Mr. Thornton s statement was dated September 6, 2005, after the contraventions occurred, whereas the statement of Kevin Steele was unsolicited and made during the hunting trip. The Panel finds that Mr. Thornton s statement is not credible and the Panel, therefore, gives it little weight. [84] The Appellant did not immediately cancel his hunting licence for the moose that Mr. Thornton claimed he had shot. Therefore, the Panel finds that the Appellant contravened section 7(1) of the Hunting Licensing Regulation. [85] The Panel finds that the Appellant was also in illegal possession of dead wildlife, a contravention of section 33(2) of the Wildlife Act. Shooting a black bear [86] UCOs Forsdick and Nixon received a statement from the Appellant on August 24, 2005 that he had killed a bear a short distance from camp and that the Appellant had no intention of retrieving the bear.

15 DECISION NO WIL-011(a) 15 [87] The testimony of UCO Forsdick to the Panel was that the Appellant told him that he killed a black bear that was a pain in the ass in camp. [88] UCO Nixon s testimony to the Panel was that Kevin Steele also told him that the Appellant had killed a bear. [89] In the afternoon of September 1, 2005, CO Walbauer visited Thutade Lake. CO Walbauer located a decaying black bear carcass on the lakeshore approximately one kilometer from the Black hunting party campsite. CO Walbauer took a number of photographs of the bear carcass. These photographs were entered as evidence at the hearing. [90] The Panel received oral testimony from Dr. Helen Schwantje, a wildlife veterinarian with the B.C. government with experience as a veterinary pathologist. Dr. Schwantje was asked by the Respondent to review CO Walbauer s photographs and estimate how long the bear had been dead. [91] Dr. Schwantje provided testimony on nine photographs of the bear carcass. Dr. Schwantje stated that limitations in her analysis of the photos include the fact that the photos were in two dimensions, she was unable to manipulate the carcass for further examination, and that she did not have interpretative aids such as smell and colour. [92] Dr. Schwantje also stated that her interpretation was second hand to some degree and that she does not have forensic entomology experience and further that a necroscopy of the bear was not undertaken. [93] Based on her observations of the photographs, Dr. Schwantje estimated that the bear died at least 5 to 7 days, and up to 10 or 12 days, before the photographs were taken. Dr. Schwantje stated that a circular trauma observed on the left side of the bear s neck was consistent with a gunshot wound. [94] The photographs were taken on September 1, 2012, thus Dr. Schwantje concluded, bearing in mind the limitations of her analysis, that the date of death of the bear was between August 19 and 26, [95] At the hearing, the Appellant denied shooting a bear. As with the moose, the Appellant suggested both at the hearing, and in his letter received by the Director on April 19, 2010, that any statements he may have made were in fact hunting stories told around a campfire and embellished with the consumption of alcohol. [96] In the Appellant s letter dated January 17, 2012 to the Environmental Appeal Board, he states that, in camp at Thutade Lake, he mentioned that he shot a bear but on a previous hunt years ago. [97] The Panel accepts the written and oral evidence of UCOs Forsdick and Nixon and Dr. Schwantje. The Panel notes that the Appellant cross-examined each of UCOs Forsdick and Nixon, and Dr. Schwantje, but that their evidence did not change. [98] Conversely, the Panel finds that the Appellant s evidence is generally not credible, and thus accords it little weight. In particular, the Panel places no weight on the Appellant s denial, and does not accept that the Appellant s statements were made in the context of hunting stories told around a campfire with the

16 DECISION NO WIL-011(a) 16 consumption of alcohol. The Panel is further of the view that the Appellant s statement in the January 17, 2012 letter to the Board that he had mentioned shooting a bear, but years ago, is a self serving statement that, to have any credibility, should have been made years earlier when the charges, and the Director s original letter, came to his attention. It is inconceivable that he would only bring this to the attention of authorities six years after the original charges were laid, and two years after the Director s initial letter. It simply does not have the ring of truth. While the Panel accepts that the Appellant s campfire stories may have embellished the truth and his hunting abilities, when it comes to his statements about the moose and the black bear, the Panel does not accept that he entirely fabricated the stories. In support of this finding, there is the corroborating statement made by Kevin Steele to the undercover officers that his father killed a bear. [99] In addition to these two statements made by different people, at different times and, apparently, not in the presence of each other, there is also physical evidence the carcass of a black bear located approximately 1 km away from the camp with what is described as a wound to its neck consistent with a gunshot, and that it was likely killed in or around the time that the Steele hunting party was at the camp. Dr. Schwantje s evidence on these matters was unchallenged. The Panel also notes that there is no evidence from the undercover officers, who were with the members of the Black hunting party at the camp during part of the relevant time frame, that any of them killed a black bear while in the vicinity. [100] Further impacting the Panel s assessment of the Appellant s credibility is the Appellant s evidence in relation to the August 27, 2005 roadside inspection, which is dealt with more fully below. The Appellant states that he would not have made false statements to the conservation officers at the roadside inspection if he had known that the two men at the Thutade Lake camp, UCOs Forsdick and Nixon, were undercover officers. [101] The Appellant appears to change his story depending on who he is talking to and whether they are people with the power to investigate and enforce the law. If he lies to protect his truck and his equipment, the Panel finds it difficult to believe that he would not similarly lie to the Panel to avoid the three-year licence suspension. [102] Having carefully considered all of the evidence, the Panel finds that, on a balance of probabilities, the Appellant shot a black bear between August 20 and 24, 2005 near Thutade Lake and failed to cancel a hunting licence for it, in contravention of section 7(1) of the Hunting Licensing Regulation. [103] The Panel also finds that the Appellant failed to retrieve the bear in contravention of section 35(2)(a) of the Wildlife Act. Making false statements to undercover conservation officers on August 27, 2005 at a roadside inspection [104] The Panel accepts the written and oral evidence of UCOs Forsdick and Nixon, and CO Walbauer, regarding the Appellant s statements to CO Walbauer on August 27, The Appellant cross-examined UCO Forsdick, UCO Nixon and CO

17 DECISION NO WIL-011(a) 17 Walbauer at the hearing. The Panel accepts the following evidence, none of which was challenged by the Appellant as incorrect or false. [105] At 3:30 pm on August 27, 2005, William Elliott was stopped at a roadside inspection by Conservation Officer Walbauer and RCMP Cst. Spooner. William Elliott explained at the inspection that he harvested a caribou and that it was in a vehicle traveling behind him. [106] CO Walbauer determined that William Elliott had not provided the occupants of the other vehicle with a transport letter authorizing them to transport wildlife for Elliott. CO Walbauer provided William Elliott with a transport letter for William Elliott to complete. [107] At 4:45 pm, the Appellant and Kevin Steele were stopped for inspection by CO Walbauer and RCMP Cst. Spooner [108] The Appellant advised CO Walbauer that he had harvested a moose and it was in the reefer unit he was towing. The Appellant also advised CO Walbauer that he was transporting other hunters animals as well in the reefer unit. [109] Inspection of the Appellant s hunting licence indicated that the Appellant had failed to cancel his species licence for the moose he had harvested, the only animal covered in cheesecloth in the reefer unit. [110] Inspection of the Appellant s reefer unit revealed four moose and two caribou. The Appellant provided the letters to transport game in the reefer unit as follows: 1. Chester Thornton to William Elliott for one moose, 2. Keith Purvin-Good to William Elliott for one moose and one caribou, and 3. Robert Sallis to Allan Steele for one moose. [111] William Elliott claimed the second caribou, while the Appellant claimed the remaining, fourth moose. [112] The Appellant identified his moose in the reefer unit as the one covered in cheesecloth. [113] The Appellant stated to CO Walbauer that when he shot his moose it was late and raining and thus he had forgotten to cancel his licence. CO Walbauer knew this to be a false statement as CO Walbauer was informed by UCOs Forsdick and Nixon that Brad Boyes had harvested the moose (with the assistance of UCOs Forsdick and Nixon). [114] The Appellant s direct testimony, and his testimony during crossexamination, was that he falsely stated to CO Walbauer that he was the owner of the moose shot by Brad Boyes. The Appellant s rationale for his false statement was that he feared that his motor vehicle and contents would be confiscated at the roadside inspection. In his April 19, 2010 letter to the Director, he stated that he panicked under the threat of losing $50,000 in vehicles and hunting gear. The Appellant testified that he was in a catch-22. The Appellant stated that he was concerned that his vehicle may be confiscated at the roadside inspection, thus he claimed the Boyes moose (covered in cheesecloth) is mine, while knowing that it

18 DECISION NO WIL-011(a) 18 was not. Instead, the Panel finds that the moose in the reefer unit claimed by Mr. Thornton (with a letter of transport for Mr. Elliott) was actually the moose shot by the Appellant. [115] The Panel finds that the Appellant knowingly made a false statement to an officer (CO Walbauer) when required to provide the information, a contravention of section 82(1)(d) of the Wildlife Act. [116] The Panel finds that the Appellant made a false statement in a book, record or report (cancelling a licence for an animal that he did not shoot), a contravention of section 82(1)(c) of the Wildlife Act. [117] The Panel finds that the Appellant allowed his hunting licence to be used by another person (by cancelling a licence for a moose shot by Brad Boyes), in contravention of section 81(1)(a) of the Wildlife Act. [118] Finally, the Panel finds the Appellant was in unlawful possession of dead wildlife by possessing the moose shot by Brad Boyes for which he had no transfer document, a contravention of section 33(2) of the Wildlife Act. Conclusion [119] The Panel finds that that the Appellant committed eight contraventions: six contraventions of the Wildlife Act and two contraventions of the Hunting Licensing Regulation. 4. Whether the Appellant was tricked by the undercover investigation such that he has a defence to the contraventions. [120] The Appellant raised a number of times during the hearing, and in his response to the letter by the Director dated March 5, 2010, his concern about trickery by the UCOs and other conservation officers. [121] In his evidence to the Panel, the Appellant explained that UCOs Forsdick and Nixon tricked him into making admissions. The Appellant said that he did not know that the conservation officers were on an undercover assignment; he believed that UCOs Forsdick and Nixon were inexperienced hunters. [122] The Appellant submits that, had he known that he was dealing with undercover conservation officers, he would have acted differently and not broken the law. [123] The Panel finds that, while the method of detecting the contraventions was, indeed, an undercover operation, the method was acceptable in light of the circumstances of the investigation being undertaken. [124] There is no evidence from the Appellant of duress or intimidation which may result in his being forced to break the law by contravening the Wildlife Act. [125] The Panel does not accept the defence of trickery. 5. What is the appropriate penalty in the circumstances of the appeal? [126] In the decision under appeal, the Deputy Director:

19 DECISION NO WIL-011(a) Suspended the Appellant s hunting licence privileges for a three-year period from December 1, 2011 to November 30, Cancelled the Appellant s hunting licence as of December 1, Barred the Appellant from obtaining or renewing a hunting licence, or applying for a Limited Entry Hunting authorization, before December 1, Prohibited the Appellant from hunting before December 1, [127] In his decision dated October 12, 2011, the Deputy Director set out a suite of factors that he considered when determining the duration of the Appellant s hunting suspension. [128] The Deputy Director s view was that, for an experienced hunter, the Appellant exhibited disrespect for wildlife conservation and very poor hunting ethics. [129] Further, he found that: the Appellant s rationale for, and admission to, providing false statements to conservation officers at the August 27, 2005 roadside inspection, so as to protect his hunting equipment from seizure, showed no willingness to take responsibility for his actions; and the Appellant s challenging of the integrity of conservation officers who were enforcing the Wildlife Act showed disrespect for, and a willingness to lie to, those entrusted with enforcing wildlife conservations laws. [130] The Panel agrees with the Deputy Director s assessment. The Panel is particularly troubled by the false statements provided by the Appellant to the conservation officers at the roadside inspection. [131] As set out earlier in this decision, the criminal charges laid against the Appellant were stayed. Those charges included two counts of making a false statement pursuant to section 82(1) of the Wildlife Act. The Panel notes that, if the Appellant had been convicted of making a false statement, the court had the discretion to impose a fine of up to $100,000, imprisonment for up to one year, or both. [132] While the eight contraventions of the Appellant were determined by the Deputy Director (and confirmed by the Panel in this decision) on a balance of probabilities, the making of the false statement to the conservation officers at the roadside inspection appears sufficient to meet the criminal standard of beyond a reasonable doubt. [133] Thus, in the Panel s view, the Appellant should consider himself fortunate that the charges of making false statements were stayed. If not, he may well have found himself facing a significant fine, imprisonment or both, in addition to any administrative licensing penalty that may be imposed by the Deputy Director. [134] In his Statement of Points filed prior to the hearing, the Respondent asked the Board to increase the Appellant s suspension from three years to six years, thus

20 DECISION NO WIL-011(a) 20 suspending the Appellant from hunting from December 1, 2011 to December 1, This request was based on consideration of the Appellant s attitude. [135] As the Respondent stated in his Statement of Points and closing argument, the Director (and Deputy Director) may institute a penalty of a suspension of up to 30 years under section 7.05 of the General Hunting Regulation (see also the Board s decision in Idalecio Mota v. Director of Wildlife, (Appeal No. 91/24, August 4, 1992)(unreported), where the Board confirmed a 30-year hunting prohibition for a hunter with chronic, almost serial, contraventions of the Wildlife Act). [136] In the Appellant s case, the Deputy Director decided to impose a three-year suspension of his hunting rights and privileges. In addition to the suite of factors taken into account by the Deputy Director, he also said as follows at page 6 of his decision: I believe that the totality and seriousness of your conduct warrants a 5-6 year hunting suspension. However, taking into account that you cancelled a moose tag and paid a fine as a result of the contraventions that occurred at the roadside inspection and the delay in coming to a decision, I have decided to limit your suspension to three years. [137] The Panel agrees with this reasoning and confirms the three-year suspension of the Appellant s licence, from December 1, 2011 to November 30, 2014, and the prohibition from hunting before December 1, DECISION [138] In making this decision, the Panel has considered all of the relevant documents and evidence, whether or not specifically reiterated herein. [139] For the reasons provided above, the Panel confirms that the Appellant committed eight contraventions of the Wildlife Act and its regulations while hunting at Thutade Lake in August Further, the Panel confirms the Deputy Director s decision to impose a three-year suspension of the Appellant s hunting rights and privileges to November 30, 2014, to cancel the Appellant s hunting licence as of December 1, 2011, to bar the Appellant from obtaining or renewing a hunting licence and from applying for a Limited Entry Hunting authorization before December 1, 2014, and to prohibit the Appellant from hunting before December 1, [140] Accordingly, the appeal is dismissed. Tony Fogarassy Tony Fogarassy, Panel Chair Environmental Appeal Board October 26, 2012