R. v. Li and Xiao Date:, 2015 BCPC 365

Citation: R. v. Li and Xiao Date: 20151217 2015 BCPC 0365 File No: 98669-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WEI GUO LI and XIN YUE XIAO REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C.D. CLEAVELEY Counsel for the Crown: Mr. Evan Goulet Counsel for the Accused, Wei Guo Li: Mr. Fred Kaatz Counsel for the Accused, Xin Yue Xiao : Mr. Kevin Walker Place of Hearing: Kamloops , B.C. Dates of Hearing: November 17-19, 2015

Date of Judgment: December 17, 2015 INTRODUCTION: [ 1 ] On October 5, 2013, a 5 point bull moose was shot and killed near a short logging spur road, which runs off the 20.5 km mark on the Dardanelles Lake Forest Service Road.

On that date, moose season was closed. [ 2 ] The area where the moose was shot is near Stump Lake, which is at about the mid-point on Highway 5A, between Kamloops and Merritt. [ 3 ] The Defendants, Wei Guo Li and Xin Yue Xiao, are charged jointly with three Wildlife Act offences, which may be described as hunting moose out of season, s. 26(1)(c), having moose in their possession while not being authorized under a licence, s. 33(2), and failing to retrieve the moose, s. 35(2). In addition, Mr.

Li is charged separately as a non-resident hunter and hunting moose without being accompanied by a guide or having a required permit, s. 47. ISSUE: [ 4 ] The issue in this case is identity. [ 5 ] Has the Crown established the identity of the Defendants as the individuals who hunted and possessed the moose? [ 6 ] In order to convict the Defendants, I must be satisfied beyond a reasonable doubt that the only rational inference which can be drawn from the evidence is that the Defendants hunted and killed the moose.

THE TRIAL: [ 7 ] The Crown called as witnesses, Kyle Carusi, Charlie Carusi, and Conservation Officers Kelly Dahl, Michael Sanderson, Ashley Page, Ann Marie Gorecki, and Jessie Jones. [ 8 ] The Defendants elected not to call any evidence. [ 9 ] In addition to the oral evidence, I received written submissions pursuant to s. 655 of the Criminal Code . THE EVIDENCE: [ 10 ] On October 4, 2013, at approximately 11:20 am, Mr. Xiao and Mr. Li were at a Chevron gas station in Merritt, British Columbia. Their images were captured on the gas station video surveillance system. Mr.

Li is seen wearing glasses and a “camo” hunting jacket. Mr. Xiao’s head appears to be clean-shaven. [ 11 ] At the station, Mr. Li purchased gasoline and a bottle of water. The purchase receipts were subsequently found in the glove compartment of a silver Ford Raptor truck, bearing BC license plate number HB 8589. [ 12 ] The next day, October 5, 2015, Charlie Carusi, and his son, Kyle Carusi, were hunting in the Dardanelles Lake area. Both are experienced hunters. They were deer hunting, as moose season was not open.

This area is popular with hunters, but on this morning, there were not many hunters in the area. [ 13 ] At approximately 8:00 a.m., Charlie Carusi was driving his truck up the Dardanelles Lake Forest Service Road, with Kyle in the passenger seat. At approximately the 17 km mark, Charlie Carusi slowed to see if any moose were in a swamp, which is adjacent to the road.

A black cargo trailer was backed in beside the swamp. [ 14 ] As the Carusis continued up the road, they passed a silver Ford Raptor truck, with one occupant, coming down the road. [ 15 ] At the 20.5 km mark, Charlie Carusi turned off the Dardanelles Lake Forest Service Road onto the short logging road. The Carusis had hunted this area two years earlier. As they travelled down this road, and in a logging block, a dead moose was lying beside the side of the road. Charlie Carusi stopped, and he and Kyle got out to inspect the moose.

The moose had a strap around its neck and it was evident to the Carusis that the moose had been pulled out from the nearby treeline. The moose had not been gutted or field dressed. The moose was cold to the touch. A knife was inserted into the bullet hole, and once removed, there was some blood on the knife and it had begun to coagulate. Charlie Carusi thought the moose may have been killed one to two days earlier. [ 16 ] The Carusis drove away and went to the end of the logging road, turned around, and drove back in the direction of where they had seen the dead moose.

Upon driving up to the moose kill site, which was 10 to 45 minutes after their first viewing the moose, a silver Ford Raptor was backed up to the moose. There were two men present. Extending out from the truck was a hoist, with cable attached. The men were standing around the moose, or perhaps one of the men was in the box of the truck. Kyle Carusi said that once they pulled up, the men stopped and looked at them. [ 17 ] Charlie Carusi pulled his truck up to within approximately 10 to 20 feet of the two men.

His truck was positioned so that his son, Kyle, was closer to the two men. [ 18 ] The men were described by the Carusis as looking Asian, and wearing camo hunting gear.

[ 19 ] Kyle Carusi described the first man as being in his mid to late forties, slim build, black hair, with a buzz cut and a receding hair line, and being approximately five feet, six inches tall. The second man was in his mid to late thirties, the same build and height as the first, a full head of black hair, approximately two inches in length, and was wearing glasses. [ 20 ] Kyle Carusi congratulated the men on their good hunt. Kyle Carusi also asked the older gentleman if he had shot the moose and he replied, by saying either “yup” or “yeah”.

It was Kyle Carusi’s impression that the man had understood what he had been asked. When the man replied, he was looking directly at him. [ 21 ] Kyle Carusi described their demeanour as “shifty”. In his experience, hunters generally give more of a description of the kill. [ 22 ] Charlie Carusi described the first man, who was in the box of the truck and trying to set up the hoist in order to lift the moose, as taller than him, approximately five feet, five inches, a little older than him, (Charlie Carusi is 53 years old), with short sandy (greying) black hair, possibly wavy, balding on top, and wearing glasses.

The second man, who was approximately 20 feet away, was on the ground and near the moose. He was described as taller and between five feet, five inches and six feet, two inches, and short black hair.

He was not wearing glasses. [ 23 ] At trial, the Carusis were not asked to identify either Defendant. [ 24 ] As the Carusis drove away, Kyle Carusi wrote down the silver Ford Raptor’s licence plate number, HB 8589. [ 25 ] Between 11:30 a.m. and 12:00 noon, Kyle Carusi telephoned the Conservation Service and reported the moose kill. [ 26 ] After reporting the kill, the Carusis returned to the moose kill site between 12:00 noon and 1:00 p.m.

The moose carcass had been moved, it was pointed in the opposite direction, and turned on its opposite side. [ 27 ] Kyle Carusi placed flagging tape around the moose, and on the road in to the kill site, in order to assist the Conservation Service in locating the moose. [ 28 ] At approximately 12:30 p.m. on October 5, 2013, Conservation Office Ashley Page, stationed in the Lower Mainland, received a telephone call regarding a possible Wildlife Act offence involving a moose which was left by the side of the road near Kamloops.

Office Page learned that the vehicle involved had a British Columbia licence plate number HB8589 and that the registered owner of the vehicle lived at 3233 Celtic Avenue, Vancouver, British Columbia. Officer Page was asked to go to that address and “follow up”. [ 29 ] At 3:00 p.m., Officer Page went to the residence and through a gate which blocked access to the property, saw a silver truck, which had a black trailer attached to it. This matched the description provided to her. The truck appeared to be dirty, which would be consistent with travelling on a back country road.

The photographs show similar dirt marks on the black trailer. [ 30 ] Officer Page rang the intercom system and was told by a house maid that the registered owner of the pick-up was not home, but was expected home later. [ 31 ] At approximately 4:30, the registered owner of the pick-up arrived and Officer Page, along with two Vancouver Police Department officers gained access to the property. [ 32 ] The license plate of the truck matched that reported to be at the moose kill site. [ 33 ] Through the driver’s side of the vehicle, Officer Page saw two long arm gun cases.

She opened the door, and from the cases removed two rifles, a .22 calibre and 30.06 calibre. [ 34 ] Officer Page seized the truck and trailer pursuant to s. 107(8) of the Environmental Management Act . [ 35 ] On October 7, 2013, after a search warrant had been issued, the truck and trailer were searched. The following items were found: • Mr. Xiao’s Canadian passport, issued on September 4, 2013, was found in a backpack, which was on the backseat of the truck. • A wallet found in the centre console of the truck contained Mr.

Xiao’s British Columbia driver’s licence, several credit cards in his name and other pieces of identification bearing his name. The wallet also contained Mr.

Xiao’s current British Columbia Hunting Licence. • A green jacket, with what appeared to be blood on the right shoulder and elbow area, was found inside the cab of the truck. • Inside the jacket was a KFC receipt from Merritt, dated October 4, 2013 at 11:27 a.m. • Inside the cargo trailer were at least three coolers, two of which contained perishable food, a rice cooker and back country equipment. [ 36 ] On October 5, 2013 at approximately 3:50 p.m., Conservation Officer Dahl received a telephone call regarding the killing of the moose. [ 37 ] Officer Dahl, in the company of Conservation Officer Sanderson arrived at the moose kill site just after 7:00 p.m.

In examining the area, Officer Dahl formed the opinion that the moose had been killed closer to the cut block brush line and had been dragged approximately 25 metres to where it was found. A metal detector was used to scan the area, but nothing was found. [ 38 ] Officer Dahl has been a conservation officer since November, 1986 and in that time has examined approximately 75 large, dead, game animals, some killed by gunfire. When examining large dead animals, Officer Dahl has used factors such as rigor mortis, carcass

temperature, spoilage, ambient temperature, and predator feeding in order to approximate time of death. [ 39 ] Officer Dahl skinned out the left side of the moose and found a “through and through” bullet wound, or a bullet wound which indicated that the bullet passed completely through the moose. [ 40 ] During the skinning process, Officer Dahl observed that the moose was still very warm, partially bloated, and there was a sour smell about it.

When he moved the legs there was no indication of rigor mortis. [ 41 ] Based on his 20 years’ experience as a conservation officer, Officer Dahl concluded that the moose was killed that day. [ 42 ] Officer Dahl took three DNA samples from the moose.

On November 8, 2013, Officer Dahl forwarded one of the DNA samples to the Alberta Fish and Wildlife Forensic Unit for DNA analysis. [ 43 ] It was admitted as a fact in this trial that the blood from the moose matched the blood which was found on the green jacket, seized from the interior of the silver Ford Raptor. [ 44 ] Officer Dahl testified that when he arrived at the moose kill site on October 5, 2013, there was no strap around the moose. [ 45 ] Conservation Officer Sanderson testified that after arriving at the kill site they looked for a shell fragment and did a quick search for a casing.

They did not find anything. Officer Sanderson followed the drag mark, approximately 25 metres and found two pools of blood, near the edge of the cut block. [ 46 ] The area where the blood pools were found was approximately 150 yards from the road and in his opinion, the moose could have been shot from the road. [ 47 ] The next day, October 6, 2013, Officer Sanderson returned to the kill site with Conservation Officer Jones. They were unsuccessful in locating any shell casings. [ 48 ] While at the kill scene, a party of three people arrived. One of the those individuals was Zach Hoffbeck. [ 49 ] Mr.

Hoffbeck told Officer Sanderson of finding a white nylon strap approximately two feet in length which had some blood droplets on it. Mr.

Hoffbeck turned over to Officer Sanderson a 30.06 shell casing, which he found on the spur road. [ 50 ] From his experience, Officer Sanderson knows that a 30.06 calibre rifle is a commonly used rifle for hunting big game. [ 51 ] From the filed admissions: • Sometime between 11:15 a.m. and 1:30 p.m. on October 5, 2013, Zach Hoffbeck found a .30-06 cartridge case about 100-120 yards from where the dead moose was abandoned. • The cartridge case was found at the location described by Conservation Officers Jones and Sanderson as the one pointed out to them by Mr.

Hoffbeck. • From where it was found, a person likely would have had a clear view of the moose from where it appears to have been shot. • The cartridge case found by Mr. Hoffbeck was not fired by the two rifles seized from the Ford Raptor [ 52 ] On October 6, 2013, Conservation Officer Jessie Jones conducted a laser distance check from the location Mr. Hoffbeck found the 30.06 shell casing and the suspected kill site.

It was 128 meters. [ 53 ] Officer Jones looked, unsuccessfully, for a shell casing at the suspected kill site and along the drag path. [ 54 ] From the campsite near the swamp, Officer Jones found some trash and the remains of a field dressed grouse, which he believed to be a day or two old. CREDIBILITY: [ 55 ] The oral evidence which I have set out was not seriously challenged. [ 56 ] The Carusis were very credible and forthright witnesses.

There were some minor issues with their evidence, likely due to the fact that they were testifying about events which occurred over two years ago, but nothing of consequence which would challenge their evidence. I accept their evidence. [ 57 ] Other than the evidence from Officer Dahl as to the length of time the moose had been dead, the evidence from the conservation officers was not controversial. I accept their evidence. [ 58 ] It is clear on the evidence that the Carusis, despite being experienced hunters, only conducted a cursory examination of the dead moose.

Officer Dahl conducted a more thorough examination, and when coupled with his experience, was better positioned to make a determination of when the moose was shot and killed. I accept his evidence that the moose was shot and killed on October 5, 2013. ANALYSIS: [ 59 ] In the textbook, Criminal Pleadings and Practice in Canada , Second Edition, by E.G. Ewaschuk, the following is written about circumstantial evidence:

Where the Crown’s case is entirely circumstantial, the trial judge must not parse and evaluate each item of evidence on a piecemeal basis, but must have regard to the “cumulative effect” of all the evidence in determining whether the accused’s guilt is the only “reasonable inference” to be drawn from the proven facts. [ 60 ] There is no dispute on the evidence that on October 5, 2013, the silver Ford Raptor, bearing British Columbia licence plate number HB8589, was backed up to the dead moose, and two Asian looking men, wearing camo hunting gear, were preparing to load the moose into the truck.

The truck and the moose are also inextricably connected by way of the DNA match. [ 61 ] Has the Crown established that the Defendants were these two men? [ 62 ] To begin this evaluation, it is necessary to consider the evidence which connects each Defendant with the Ford Raptor. [ 63 ] The day before, October 4, 2013, at approximately 11:20 a.m., Mr. Li and Mr. Xiao were in Merritt, which is not that far from where the moose was killed. [ 64 ] There is no direct evidence as to how the Defendants were travelling, but it is reasonable to infer from Mr.

Li’s purchase receipts, particularly the purchase of fuel, which were found in the glove compartment of the Ford Raptor, that he was associated with, if not travelling in that vehicle. [ 65 ] The evidence against Mr. Xiao establishes a much stronger connection to the Ford Raptor. [ 66 ] In the afternoon following the killing of the moose, Mr. Xiao’s recently issued Canadian passport was found in a backpack on the back seat of the truck. In the centre console of the truck, a wallet was found which contained Mr.

Xiao’s British Columbia driver’s licence, several of his credit cards, and other identity documents in his name, including his current British Columbia hunting licence. [ 67 ] It is also reasonable to infer, because of the proximity of the green jacket to Mr. Xiao’s personal identification, and no other person’s identification being found in the truck, that the jacket belongs to Mr. Xiao.

Found inside the green jacket, which had the blood from the dead moose on it, was found the Merritt KFC fast food receipt date stamped October 4, 2013 at 11:27 a.m., which is six minutes after the fuel purchase. [ 68 ] Although the Carusis did not identify the Defendants as the two men found at the kill site, Kyle Carusi’s description of both men generally matches that of the Defendants. [ 69 ] Kyle Carusi was in a better position than his father, Charlie Carusi, to observe both men, and he spoke to the older of the two men, who looked directly at him.

Kyle Carusi described the older man as being in his mid to late 40s, slim build, approximately 5’6” tall, black hair, with a receding hairline, but with a buzz cut. [ 70 ] From the information on Mr. Xiao’s British Columbia driver’s licence, he was born on May 5, 1966, which made him 47 years of age at the time, he weighed 70 kg (154 lbs) and stood 175 cm tall (5’9” tall). Kyle Carusi’s description of the older man, bears a reasonable similarity to Mr. Xiao in age, stature, and the buzz cut. [ 71 ] Kyle Carusi’s description of the older gentleman is also consistent with the photographs of Mr.

Xiao from both his recently issued passport and the still photographs from the Merritt Chevron station. [ 72 ] Kyle Carusi’s description of the second man is generally consistent with the still photographs of Mr. Li from the Merritt Chevron station. Mr. Li is seen wearing a camo hunting jacket, appears to be younger than Mr. Xiao, has a full head of hair, and is wearing glasses. [ 73 ] Charlie Carusi’s description of the two men is somewhat different than his son’s. He was farther away from the two men, and he did not speak directly to the older gentleman as did his son.

Differences include the older gentleman having possibly wavy grey-black hair and he wore glasses. The second man was anywhere from 5’5” to 6’2” tall and was not wearing glasses. [ 74 ] In my view, there is a significant connection between Mr. Xiao and the Ford Raptor, on account of the nature of the items found, for example Mr. Xiao’s passport, hunting and driver’s licences, and the number of other personal documents found. The same cannot be said in regards to Mr. Li.

The two receipts found inside the glove box indicate a lesser connection to the Ford Raptor. [ 75 ] It is also of importance that on this morning, October 5, 2013, that there were few other hunters in the area. [ 76 ] The cumulative effect of the significant connection between Mr. Xiao and the Ford Raptor, when coupled with the identification evidence of Kyle Carusi leads me to conclude that the only rational inference which can be drawn is that it was Mr.

Xiao who admitted to Kyle Carusi that he shot the moose. [ 77 ] Although Kyle Carusi’s evidence as to the physical characteristics of the second man bears a similarity to Mr. Li, there is not the connection between the Ford Raptor and Mr. Li, as there is in Mr. Xiao’s case. To put it another way, while the two receipts belonging to Mr. Li were found in the glove compartment of the Ford Raptor, this is not a sufficient basis to find that Mr. Li was the second man at the moose kill site. [ 78 ] Based on the evidence of Officer Dahl as to when the moose was killed, it is reasonable to conclude that Mr.

Xiao was driving the Ford Raptor down the Dardanelles Lake Forest Service Road, when passed by the Carusis, and that he had shot the moose earlier in the morning. After killing the moose, he used the truck winch system to pull the moose carcass from the kill site to where the Carusis found it, with the strap around its neck. [ 79 ] When the Carusis returned to the kill site the second time, Mr. Xiao and the other man were preparing to load the whole moose

into the box of the truck. [ 80 ] This is very unusual because most hunters gut and field dress their kill as soon as possible to avoid the meat spoiling. Also, to load a whole moose into the back of this Ford Raptor, without field dressing, it would likely be a difficult task considering the size and weight of the moose. This suggests to me either inexperience on the part of the hunters, someone in a rush, or both. [ 81 ] Kyle Carusi described the men as shifty, and not wanting to speak to him. Their reluctance to speak to Mr.

Carusi seemed peculiar to him because he congratulated them on their kill, and in his experience, hunters usually give a description of the kill. [ 82 ] In these circumstances, it is reasonable to infer that Mr. Xiao and the other man realized that they had been caught red-handed hunting a moose out of season. [ 83 ] Taking into account that the Ford Raptor and black cargo trailer were seen by Officer Page parked at the residence in Vancouver at 3:00 p.m., it is reasonable to conclude that Mr.

Xiao and the other man left the moose kill scene shortly after the Carusis, hooked up the cargo trailer and immediately returned to Vancouver. The two rifles found inside the truck, plus the amount of perishable food found in the coolers, located in the cargo trailer, is also consistent with a hunting trip cut short. [ 84 ] At trial and during submissions I heard a great deal regarding the 30.06 casing found on the road by Mr. Hoffbeck.

In submissions, the Crown proposed three scenarios: • A third party shot the moose and the Defendants came upon it and decided to take it. • The casing is not associated with the moose. • The casing was from a rifle which was not seized. Perhaps Mr. Li removed his items, including the rifle, upon returning to Vancouver. [ 85 ] These three scenarios are not crucial to my determination of the case. [ 86 ] I will add that I do not believe that a third party killed the moose and that Mr. Xiao and this other man came upon the moose and decided to take it. There were few hunters in the area and Mr.

Xiao admitted to Kyle Carusi that he shot the moose. [ 87 ] It is entirely possible that the 30.06 casing is not associated with this moose kill. This is a well-known hunting area and a 30.06 is a popular hunting rifle. [ 88 ] It may also be possible that this casing was from the rifle used to kill the moose, but it was not recovered in the course of the investigation. DECISION: [ 89 ] Based on my findings of fact, I conclude that the Crown has not established that Mr. Li was the second man at the moose kill site. I find Mr. Li not guilty. [ 90 ] To summarize the case against Mr.

Xiao, the cumulative effect of the proven facts establishes, beyond a reasonable doubt, that the only reasonable inference to be drawn is that he shot and killed the moose at a time when the season was closed, he had possession of the moose when attempting to load it into the Ford Raptor, and he failed to retrieve the moose after having shot it. [ 91 ] I find Mr. Xiao guilty of the three Wildlife Act violations with which he is charged. _______________________ C.D. Cleaveley Provincial Court Judge