Environmental Appeal Board

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Environmental Appeal Board Fourth Floor 747 Fort Street Victoria British Columbia Telephone: (250) 387-3464 Facsimile: (250) 356-9923 Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1

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 APPEAL NO. 98-WIL-05 In the matter of an appeal under section of the Wildlife Act, R.S.B.C. 1996, c BETWEEN: Thomas Schreiber APPELLANT AND: Deputy Director of Wildlife RESPONDENT BEFORE: A Panel of the Environmental Appeal Board Jane Luke, Chair DATE OF HEARING: May 28, 1998 PLACE OF HEARING: Castlegar, B.C. APPEARING: For the Appellant: R. W. Khadikin, Counsel For the Respondent: Joseph McBride, Counsel APPEAL This is an appeal by Thomas Schreiber of a decision of M.A. Hayden, Deputy Director of Wildlife, dated February 24, 1998, canceling Mr. Schreiber s hunting and firearm licences for 6 years, from February 24, 1998 to February 24, 2004, and requiring Mr. Schreiber to successfully complete the Conservation and Outdoor Recreation Education (CORE) examinations. The Panel of the Environmental Appeal Board has the authority to hear this appeal under section 11 of the Environment Management Act and section of the Wildlife Act. Mr. Schreiber seeks to have the Deputy Director s order set aside. BACKGROUND On October 22, 1993, Mr. Schreiber was hunting Rocky Mountain Bighorn sheep in the Kootenay Region near Sparwood B.C. The Line Creek Mine is in the vicinity. Under regulations to the Wildlife Act, S.B.C. 1982, c.57, the Line Creek Mine area was closed to sheep hunting at that time. Under the Mine Health, Safety and Reclamation Code pursuant to the Mines Act, S.B.C. 1989, c. 56, it was an offence to enter mine property except at recognized entries and exits. Two hunters were near the Line Creek Mine boundary at about 6:20 p.m. October 22, They saw Mr. Schreiber drive past in an all-terrain vehicle (ATV). He did

2 APPEAL NO. 98-WIL-05 Page 2 not have a jacket, gun or other equipment. Mr. Schreiber drove down a skid trail to the mine property, where he left his ATV and apparently entered the mine property on foot. The mine was very well marked with signs warning people not to shoot or trespass on mine property. After a few minutes, Mr. Schreiber drove his ATV past the two hunters again. This time he had a packboard on his back, a rifle, and a jacket or shirt over a crate on the back of the ATV. After the hunters drove their own ATV s back to their truck and were loading them, Mr. Schreiber drove by them in a red truck with his ATV loaded on the back. The hunters had recorded the licence number of Mr. Schreiber s truck and reported it to conservation officers. They had seen Mr. Schreiber several times in the preceding days in nearby prime sheep hunting places. In particular, they had seen him the day before, parked in his truck on a road adjacent to the mine area, looking with a spotting scope at a group of about 7 rams on the mine property. Earlier on October 22, 1993, at about 2:00 p.m., another hunter saw Mr. Schreiber s ATV parked near the mine property boundary. It was empty except for the plastic crate on the back. There were clear human tracks in the snow leading from the ATV into the mine property. On subsequent investigation, conservation officers found out that Mr. Schreiber had taken a ram s head into the Nelson conservation office for inspection, which is required by the Wildlife Act. Mr. Schreiber reported that he had killed the ram on October 22 at Dry Creek, which is about 7 to 10 km. away from the Line Creek Mine area where Mr. Schreiber was seen that day. Bighorn sheep hunting was permitted in the Dry Creek area on October 22, Another hunter who had been in the Dry Creek area on October 22 told conservation officers he did not see any sheep or hear any gun shots there that day. On November 1, 1993, conservation officers searched the area of the mine property near where Mr. Schreiber had been seen on October 22. There was a fresh snowfall, it was very cold, and they did not find evidence of a sheep kill. On November 3, 1993, conservation officers seized the sheep s head from Mr. Schreiber s taxidermist and put it in frozen storage. On June 29, 1994, conservation officers found remains of a sheep in the same general area that had been searched November 1, The carcass had apparently been dragged about 75 yards from an open area into tree cover. The officers took samples from the remains at the kill site, and from the frozen sheep s head that had been seized from the taxidermist, and sent them to a laboratory in Oregon for DNA analysis. The analysis, using the RFLP method, did not show a match between the DNA in the samples. The conservation officers then submitted the samples to a laboratory in Edmonton that uses a newer, microsatellite PCR method of DNA testing. The Edmonton lab confirmed that the DNA in the samples matched. The scientist who carried out the PCR method of NA analysis hypothesized that the different results from the Oregon lab may have been because the samples on the mine property could have degraded or have been contaminated with microbial material. The PCR method, which is a newer method than the one used by the Oregon lab, is not affected by sample contamination or degradation problems. In a June 30, 1995 letter from the scientist who had done the DNA tests

3 APPEAL NO. 98-WIL-05 Page 3 in the Oregon lab to the Edmonton lab, the scientist agreed that the extra DNA bands he found in the mine property samples were quite likely degradation products or microbial contamination. He went on to say The differences in our results reflects the superiority of the microsatellite method. Mr. Schreiber was charged with several offences on April 7, On November 28, 1995, he was convicted in the Provincial Court of British Columbia of the following: 1. Hunting wildlife in an area closed to hunting at the time, contrary to section 27(1)(c) of the Wildlife Act. 2. Possession of dead wildlife not authorized by licence or permit contrary to section 34(2) of the Wildlife Act. 3. Knowingly making a false statement in a book, record, report or return kept under the Wildlife Act, contrary to section 84(1)(c) of the Wildlife Act. 4. Entering or leaving a mine other than by a recognized means of entry or exit, contrary to section of the Mine, Health, Safety and Reclamation Code under the Mines Act. Mr. Schreiber appealed his convictions. On December 20, 1996, the Supreme Court of British Columbia overturned the first three of the above convictions, confirmed the Mines Act conviction, and suggested the matter be re-tried. The Supreme Court accepted the trial Judge s findings of fact, but decided that the Crown had not demonstrated the reliability of the statistical analysis of the DNA match, and thus that evidence must be excluded. Without evidence of the statistical probability that the match could be a random coincidence, the court could not convict Mr. Schreiber. All of the above facts were accepted by the courts, as set out in the written reasons for judgment filed as exhibits at the hearing before the Board. Mr. Schreiber did not testify at this hearing, or tender any other evidence refuting these facts. After the appeal, Conservation Officer Frank deboon asked the Wildlife Conservation Genetic & Forensic Laboratory at the University of Edmonton, which had performed the DNA tests, to prepare a complete statistical analysis of the DNA tests. That results of that analysis were set out in a letter from the laboratory to Mr. deboon dated April 29, They concluded that the statistical possibility of the DNA samples being from different sheep was only 1 in 57,300,000. The Crown did not pursue a re-trial. On October 24, 1997, the Deputy Director informed Mr. Schreiber that he was considering licence action, and gave him an opportunity to be heard before making a decision. The Deputy Director received both written and oral submissions from Mr. Schreiber s counsel. The Deputy Director issued his decision February 24, 1998, imposing a six-year cancellation of Mr. Schreiber s hunting licence, and requiring him to successfully complete the CORE examinations. Mr. Schreiber now appeals that decision to the Board.

4 APPEAL NO. 98-WIL-05 Page 4 RELEVANT LEGISLATION The Interpretation Act, R.S.B.C c. 238 gives a Deputy Director the power to act as a Director. The authority for the Director to cancel hunting licences is in section 24 of the Wildlife Act: Suspension and cancellation of licences 24 (1) In this section, convicted, includes the granting of an absolute or conditional discharge. ISSUES (2) If a person holding a licence or permit issued under this Act or the regulations is convicted of an offence under (a) this Act, other than section 22, subsections (6), (7) or (14) of this section, sections 26 (1) (a), (e), (f) and (g), 28, 81 and 82, or section 3 of the Firearm Act, (b) section 9 of the Firearm Act, (c) the Migratory Birds Convention Act, 1994 (Canada) or its regulations, (d) the Fisheries Act (Canada) or its regulations, or (e) the Criminal Code respecting the use or possession of firearms while the person is hunting, or for any other cause considered sufficient by the director, and after providing an opportunity for the person to be heard, the director may suspend the licence and all rights under it for a period that to the director seems fit, or may cancel it. (3) On notice of a suspension or cancellation under subsection (2), the person must immediately deliver the licence or permit to the director. (4) If a licence has been suspended, the director must return the licence to the person at the expiration of the period of suspension. (5) If a licence is canceled, the director may order that the person is ineligible to obtain or renew a licence for a period that to the director seems fit within the prescribed limits and the director must inform the person of the period of ineligibility. Mr. Schreiber, through his counsel, listed ten grounds of appeal in his notice of appeal. In his statement of points dated May 5, 1998, he stated that the substance of his objections was that the Deputy Director should not impose punishment on persons who have not been convicted in a court of law. At the hearing, Mr. Schreiber s counsel said that his argument had changed, and the crucial point to be made was that the Deputy Director s decision to cancel Mr. Schreiber s licence was

5 APPEAL NO. 98-WIL-05 Page 5 wrong because the Deputy Director did not have the document from the Oregon DNA lab which indicated the DNA samples did not match. Counsel for Mr. Schreiber also complained about the delay in this matter and submitted that the length of this licence suspension is inappropriate. From all of these submissions, the panel identifies the issues as follows: 1. Did the Deputy Director have the evidence from the Oregon DNA laboratory? 2. Should the Deputy Director have imposed the licence cancellation despite the Court overturning Mr. Schreiber s convictions? 3. Was the six-year hunting licence cancellation imposed by the Deputy Director reasonable in all of the circumstances, including the delay in issuing the cancellation decision? DISCUSSION AND ANALYSIS 1. Did the Deputy Director have the Oregon laboratory DNA evidence? Mr. Schreiber s counsel placed great emphasis on the October 31, 1994 letter to the B.C. Wildlife Branch Office from the DNA lab in Oregon, which stated that the DNA samples did not match. Mr. Schreiber s position is that the Deputy Director s decision is fatally flawed because he did not have that document before him. At the hearing, Mr. Schreiber s counsel stated that: The crucial evidence was not before the Deputy Director. It was presented but not received. I don t think there is another issue. The evidence on this point is unclear. The Deputy Director did not refer to that document in his written decision, or in the list of exhibits attached to his decision. On the other hand, he certainly knew of its existence and its contents. Counsel for Mr. Schreiber himself said that he discussed this document with the Deputy Director over the telephone, and then personally faxed it to him. Further, the results from both DNA labs, and the contamination problems that could have affected the first test, were canvassed thoroughly in the written decisions of the B.C. Provincial Court and B.C. Supreme Court. Both court decisions were listed as exhibits to the Deputy Director s written decision and referred to in several places in the Deputy Director s decision. The Panel is satisfied that the Deputy Director had ample evidence of the Oregon DNA tests before him, even if he did not have the October 31, 1994 letter. However, he accepted the Edmonton lab s DNA evidence, as did the courts. That does not mean that he ignored the Oregon DNA evidence, as posited by Mr. Schreiber, only that he determined the Edmonton DNA evidence as being the more accurate and reliable.

6 APPEAL NO. 98-WIL-05 Page 6 2. Should the Deputy Director have imposed the licence cancellation despite the Court overturning Mr. Schreiber s convictions? Mr. Schreiber s counsel submitted that because Mr. Schreiber was ultimately not convicted of offences under the Wildlife Act, the Deputy Director should not impose a licence cancellation. Under section 24 of the Wildlife Act, the Director may cancel a licence for any cause he or she considers sufficient, after giving the licence holder an opportunity to be heard. A failure to convict in a criminal court proceeding does not mean that there was no evidence of wrongdoing by Mr. Schreiber. In the case of Hansen v. Willett 1 the Supreme Court of British Columbia confirmed that even where criminal proceedings have been concluded in the accused s favour, an administrative tribunal is not thereby prevented from imposing serious sanctions based upon essentially the same facts. Thus the proper question to be addressed here is: Was there sufficient evidence of misconduct before the Deputy Director, and did he give Mr. Schreiber an opportunity to be heard before making his decision? Mr. Schreiber s counsel did not contend that he had an inadequate opportunity to be heard. He made both written and oral submissions to the Deputy Director. Nonetheless, Mr. Schreiber s counsel did complain in his March 2, 1998 notice of appeal to the Board that he did not have the opportunity to cross-examine the DNA experts. The Panel assumes he means the expert who prepared the DNA statistical analysis. The other experts would have been available for cross-examination in the court process. This argument has no merit in this case, because there is no evidence that Mr. Schreiber or his counsel challenged the accuracy of the DNA statistical analysis in submissions to the Deputy Director. If Mr. Schreiber truly believed there was a scientific defect in the DNA statistical evidence, he should have stated it to the Deputy Director. The Deputy Director based his decision on his conclusion that Mr. Schreiber killed a bighorn sheep, while trespassing in a closed area, and then made a false statement about the location of the kill on an inspection data sheet. Was his conclusion reasonable? In the Panel s opinion, it was. Even ignoring the evidence from the overturned Wildlife Act court convictions, the Deputy Director had the following evidence on which to base his conclusion: a) Mr. Schreiber unlawfully entered Line Creek Mine property October 22, 1993, and was convicted for it. b) Mr. Schreiber had a ram s head from a sheep he said he shot October 22, 1993 outside the mine property. c) One DNA test from a lab in Oregon found that the DNA samples did not match. When the samples were sent to a lab in Edmonton that uses a testing 1 Hansen v. Willet, unreported decision of the Supreme Court of B.C., Vancouver Registry No. A872239, September 8, 1987 at p. 11.

7 APPEAL NO. 98-WIL-05 Page 7 method that is not affected by sample degradation or microbial contamination, DNA from the ram s head matched DNA from sheep remains found on the mine property, near the area where Mr. Schreiber was seen October 22, d) The statistical odds that the DNA samples came from the same animal are over 57 million to one. (The courts did not have this evidence.) The Panel finds that there was overwhelming evidence for the Deputy Director to conclude that Mr. Schreiber illegally killed a bighorn sheep on Line Creek Mine property and then lied about it, notwithstanding that he was not convicted in a criminal court. 3. Was the six-year hunting licence cancellation imposed by the Deputy Director reasonable in all of the circumstances, including the delay in issuing the cancellation decision? While the Board has de novo authority, if a Director s (or Deputy Director s) cancellation decision is made in accordance with natural justice and administrative fairness, and is generally consistent with other cancellation decisions for comparable activity, there will usually be no reason for the Board to interfere with the Deputy Director s discretion and judgment. The Deputy Director cited the following guiding factors for his decision on the length of Mr. Schreiber s licence cancellation: the nature of the unlawful actions, lack of remorse, need for deterrence, poor hunting ethics, and the fact that Mr. Schreiber had already had a one year automatic licence cancellation following his initial convictions. In the conservation officer s report to the Director dated June 30, 1997, which was also considered by the Deputy Director and filed as an exhibit in the hearing, the conservation officer recommended a minimum five-year cancellation. The Panel finds that these are all relevant and appropriate factors to consider. Is the cancellation decision consistent with other cancellation decisions under the Wildlife Act? Counsel for the Deputy Director referred the Panel to several hunting licence cancellation cases. They ranged from a three year cancellation for a hunter who killed an elk in the wrong hunting zone (both zones were open for hunting, but the hunter s licence was limited to a particular zone), (Hopkins v. Deputy Director of Wildlife (Environmental Appeal Board, Appeal No. 96/10, January 6, 1997) (unreported)); five years for hunting at night with a light, though no animal was killed, (Collier v. Assistant Deputy Director of Wildlife (Environmental Appeal Board, Appeal No. 93/15, May 2, 1994) (unreported)); and ten years (the maximum) for killing two bighorn sheep and a goat using someone else s hunting licence, and going over the bag limit, (Johnston v. Deputy Director of Wildlife (Environmental Appeal Board, Appeal No. 95/45, September 4, 1996) (unreported)). There are many different relevant factors that go into such decisions, making it difficult to compare individual situations. However, the Panel finds that the licence suspension period of six years is generally in line with other Wildlife Act licence cancellation decisions.

8 APPEAL NO. 98-WIL-05 Page 8 Mr. Schreiber s counsel submitted that no licence cancellation should be imposed because of the delay in this case. The sheep was killed October 22, 1993, and the licence cancellation was made February 24, Mr. Schreiber s position is that this violates his right to be tried in a reasonable time under section 11(b) of the Canadian Charter of Rights and Freedoms, Constitution Act, The Panel does not agree. The Supreme Court of Canada has established that the application of section 11 of the Charter of Rights and Freedoms is limited to criminal or quasi-criminal proceedings with true penal consequences such as imprisonment or significant fines 2. The Supreme Court specifically stated that section 11 does not apply to proceedings undertaken to determine a person s fitness to obtain or maintain a licence. 3 In Mr. Schreiber s situation, the Deputy Director has proscribed a cancellation of licence privileges in administrative proceedings, not criminal or even quasi-criminal proceedings. Even though section 11 of the Charter does not apply, excessive unexplained delay is a relevant factor in considering whether a decision is fair and reasonable. The Panel expressed some perplexity about the delay at the hearing. Conservation Officer Frank deboon then gave evidence at the hearing about the timing of events in Mr. Schreiber s case. In the Panel s opinion, it is appropriate for the Deputy Director to wait until pending relevant information is available, including the evidence from court proceedings, before deciding to take administrative action. Mr. Schreiber s court trial was concluded January 31, The Deputy Director sent Mr. Schreiber notice of his intent to consider licence cancellation in a letter dated March 20, Mr. Schreiber s counsel requested the Deputy Director to delay his decision until conclusion of the appeal. Thus the relevant period in which to examine the delay issue in this case is from the date of the Supreme Court of B.C. appeal decision, December 20, 1996, to the Deputy Director s decision date, February 24, 1998, a period of about 14 months. Conservation Officer deboon testified that, after the January 20, 1997, 30-day deadline to file another appeal passed, he undertook to gather the statistical evidence that was absent in the court proceedings. This involved collecting samples from relevant sheep populations and sending them to the lab in Edmonton for analysis. The statistical analysis was issued on April 29, The Schreiber file, with the conservation officer s report and recommendations, was forwarded to the Deputy Director June 30, The Deputy Director again gave notice of his intention to consider licence cancellation on October 24, After that, the Deputy Director received both written and oral telephone submissions from Mr. Schreiber s counsel. The last oral submission occurred on February 13 or 14, 1998 according to Mr. Schreiber s counsel. The Deputy Director s decision was issued February 24, R. v. Wigglesworth, [1987] 2 S.C.R R. v. Wigglesworth, supra, at p. 560

9 APPEAL NO. 98-WIL-05 Page 9 The Panel finds that the 14-month delay is explainable and reasonable in these circumstances. Complex statistical evidence had to be obtained to put before the Deputy Director, and the Panel accepts that this was done in reasonable time. Once the Deputy Director had the file, he issued the notice of intent to consider cancellation within four months. Again, the Panel finds this is reasonable. The Deputy Director issued his decision 11 days after receiving final submissions from Mr. Schreiber s counsel. DECISION For all of the reasons stated above, the panel is satisfied that the Deputy Director s decision to cancel Mr. Schreiber s hunting and firearm licence for 6 years, from February 24, 1998, to February 24, 2004, is reasonable and proper. It is also appropriate to require Mr. Schreiber to successfully complete the C.O.R.E. examinations before his licence can be reinstated. The Appeal is dismissed. Jane Luke Jane Luke, Member Environmental Appeal Board September 1, 1998

Environmental Appeal Board

Environmental Appeal Board Fourth Floor 747 Fort Street Victoria British Columbia Telephone: (250) 387-3464 Facsimile: (250) 356-9923 Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1 APPEAL