R. v. Loomis, 2022 BCPC 169

Citation: R. v. Loomis 2022 BCPC 169 Date: 20220630 File No: 34803-1 Registry: Dawson Creek IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOSEPH KENNETH LOOMIS IN THE MATTER OF AN APPLICATION TO A JUDGE PURSUANT TO

SECTION 97.6 OF THE WILDLIFE ACT, R.S.B.C. 1996, C. 488 RULING ON APPLICATION OF THE HONOURABLE JUDGE O. FLECK Counsel for the Crown: G. McDonald & S. Cassell Counsel for the Applicant K. Church Places of Hearing: Dawson Creek and Fort St. John , B.C. Dates of Hearing: September 23, 29, 30 and October 1, 2020; March 30, May 13 and September 13, 2021 Date of Judgment: June 30, 2022

INTRODUCTION [ 1 ] Joseph Kenneth Loomis brings this application under

section 97.6 of the Wildlife Act , R.S.B.C. 1996, c. 488 [as amended] (the “ Wildlife Act ”). He is seeking the return of a thinhorn ram mountain sheep (Stone’s ram mountain sheep) (the “thinhorn sheep”) skull, horns, and associated parts (the “wildlife parts”) after the British Columbia Conservation Officer Service seized the wildlife parts from Mr. Loomis. [ 2 ] The Conservation Officer Service seized the wildlife parts as the result of an allegation that Mr.

Loomis had not complied with the applicable regulations pertaining to what needed to be submitted for compulsory inspection, thus not making it possible to determine whether the thinhorn sheep was full curl. The specific issue is whether Mr. Loomis submitted the thinhorn sheep’s skull and horns in a manner that included the associated connective bone structure . [ 3 ] There are two main issues for me to decide: 1) What is meant by associated connective bone structure ? 2) Did Mr.

Loomis comply with the applicable regulations, including submitting the associated connective bone structure for compulsory inspection? [ 4 ] The first issue is one of statutory

interpretation. The second is one of applying the material facts to the law after the first issue has been decided. [ 5 ] As I detail in these reasons for decision, I find in favour of Mr. Loomis. PROCEDURAL HISTORY [ 6 ] This proceeding began as a regulatory prosecution against Mr. Loomis. An information was sworn alleging Mr. Loomis had committed offences under the Wildlife Act and Hunting Regulation , B.C. Reg. 190/84 (the “ Hunting Regulation ”). However, the Crown directed a stay of proceedings prior to trial. This led Mr. Loomis to make this application for return of the wildlife parts.

POSITIONS OF THE PARTIES [ 7 ] Mr.

Loomis submits that he is entitled to return of the wildlife parts under the Wildlife Act on the following grounds: 1) he lawfully killed the thinhorn sheep and otherwise complied with the Wildlife Act and Hunting Regulation , thus he acquired the right of property in the wildlife parts; 2) alternatively, if he did not comply with the Wildlife Act and Hunting Regulation , he failed to do so only because he, in good faith, complied with the directions of the compulsory inspector and thus any failure to comply was officially induced and the result should be that he acquired the right of property in the wildlife parts; and, 3) in the further alternative, he exercised due diligence in attempting to comply with the Wildlife Act and Hunting Regulation , even if he failed to do so, and thus he acquired the right of property in the wildlife parts. [ 8 ] The Government of British Columbia opposes Mr.

Loomis’ application on the ground that Mr. Loomis failed to comply with the Wildlife Act and Hunting Regulation by failing to submit all the required wildlife parts for compulsory inspection. The government also submits that Mr. Loomis cannot succeed on the alternative grounds of officially induced error or due diligence. As a result, the government asserts Mr. Loomis did not acquire the right of property in the wildlife and ownership of the wildlife parts remains vested in the government. [ 9 ] I find that Mr. Loomis succeeds on the first ground that he advances.

EVIDENCE AND FINDINGS OF FACT [ 10 ] The application proceeded with a combination of viva voce and documentary evidence tendered at trial and with further documentary evidence tendered after the initial close of evidence in a process that was agreed by the parties and the Court. As well, the government conceded certain facts in its submissions to the Court. [ 11 ] Based on the positions of the parties, I take the following to be uncontested: 1) Mr.

Loomis harvested a thinhorn ram mountain sheep (Stone’s ram mountain sheep) in a remote mountainous area in Management Unit (“M.U.”) 7-50 in the British Columbia Peace Region during an open season on or about August 3, 2017; 2) Mr. Loomis returned to the Dawson Creek area on or about August 6, 2017 and contacted Peter Bruhs, the compulsory inspector for the Dawson Creek area, to arrange to have the wildlife submitted for compulsory inspection; 3) Mr.

Bruhs was not immediately available, so the inspection did not take place until August 30, 2017; 4) due to the spoilage that the soft tissue would undergo in the meantime, Mr. Loomis boiled the skull and horns while awaiting the inspection, thus eliminating any soft tissue; 5) the skull and horns were presented at the compulsory inspection with one of the horns glued into place within the skull, while the other horn was loose;

6) the compulsory inspection was performed on August 30, 2017 by Mr. Bruhs, who is a duly qualified and certified compulsory inspector contracted by the government; 7) Mr. Bruhs completed a Compulsory Inspection Data Sheet, pinned the horns at the conclusion of the inspection and returned the wildlife parts to Mr. Loomis, the thinhorn sheep having passed inspection; 8) the Conservation Officer Service attended Mr.

Loomis residence and seized the wildlife parts on or about September 12, 2017, due to a belief that the thinhorn sheep was not full curl; 9) the belief that the thinhorn sheep was not full curl was initiated by a conservation officer viewing photos of the wildlife parts that Mr. Loomis had posted on social media; 10) the thinhorn sheep was not at least eight years old, as evidenced by the true horn annuli; and 11) the Conservation Officer Service eventually formed the opinion that Mr.

Loomis had not presented the wildlife for compulsory inspection in a manner that complied with the Hunting Regulation and informed Mr. Loomis that the wildlife parts would thus not be returned to him. [ 12 ] Given these uncontested facts, I find it unnecessary to resolve any contested fact, except for a factual dispute over the nature of the connective tissues in a thinhorn sheep’s horns that was the subject of expert evidence at trial. Other than the issue of the connective tissues, I do not find that any contested fact is material to resolving the first issue before me with respect to

interpretation of the Hunting Regulation . [ 13 ] After interpreting the Hunting Regulation , I find that I am able to resolve the second issue, whether Mr. Loomis complied with the applicable regulations, by applying the uncontested facts alone, as I find that the uncontested facts are the only facts that are material to the issue of regulatory compliance. As a result, there is no need for me to resolve any factual dispute beyond the issue of the nature of the connective tissues. ANALYSIS - ISSUE 1: STATUTORY

INTERPRETATION Applicable Statutory Law [ 14 ] In beginning my analysis, it will be useful first to set forth the applicable statutory law. [ 15 ]

Section 2 of the Wildlife Act reads as follows, in relevant part: Property in wildlife 2

(1) Ownership in all wildlife in British Columbia is vested in the government.

(2) A person does not acquire a right of property in any wildlife except in accordance with a permit or licence issued under this Act or the Animal Health Act or as provided in subsection (3) of this section.

(3) A person who lawfully kills wildlife and complies with all applicable provisions of this Act and the regulations acquires the right of property in that wildlife. [ 16 ] Therefore, for Mr. Loomis to demonstrate that he acquired the right of property in the thinhorn sheep, he must demonstrate, on a balance of probabilities, that he complied with subsection 2(3) by showing that he lawfully killed the wildlife by complying with all relevant provisions of the Wildlife Act and Hunting Regulation (as the Hunting Regulation stood at the time that Mr. Loomis killed the wildlife in August 2017). [ 17 ] The relevant portions of the Hunting Regulation are found in sections 1 and 16 , as well as

Schedule 7. [ 18 ] In particular, subsection 1(1) provides the following relevant

definitions: "full curl thinhorn ram mountain sheep" means any thinhorn ram mountain sheep that has attained the age of 8 years as evidenced by true horn annuli as determined by the regional manager or designate, or whose horn tip, when viewed squarely from the side at right angles to the sagittal plane of the skull, extends dorsally beyond the nose bridge plane; . . . "nose bridge plane" means a plane perpendicular to the sagittal plane that includes the anterior and posterior points of the suture joining the left and right nasal bones where they meet the dorsal surface of those bones; . . .

"sagittal plane" means the surface by which the skull is divided equally into left and right sides; [ 19 ]

Section 15 of

Part 2 of

Schedule 7 to the Hunting Regulation is also relevant: Mountain sheep rams 15 For the purpose of section 26(1)(

c) of the Act , there is no open season for mountain sheep in Region 7 — Omineca-Peace, unless it is a full curl bighorn or full curl thinhorn ram mountain sheep.

[20] Therefore, in M.U. 7-50, a lawfully harvested thinhorn mountain sheep must be a ram that is full curl in accordance with thesubsection 1(1) definition of full curl thinhorn ram mountain sheep. [21] However,

section 16 of the Hunting Regulation also comes into play. The relevant provisions of

section 16 set forth certainrequirements with which a hunter must comply for compulsory inspection after harvesting a thinhorn sheep and failure to submit theprescribed wildlife parts for compulsory inspection constitutes an offence. Failure to comply would also mean that the hunter has not metthe conditions of subsection 2(3) of the Wildlife Act and thus has not acquired the right of property in the wildlife. [22] In particular, subsection 16(2.1) makes inspection and measurement mandatory:

(2.1) A person commits an offence if the person takes or kills, in any M.U., . . . (

c) a mountain sheep, unless the person submits the prescribed parts of the wildlife to an officer for inspection and measurement . . . [23] In addition, subsection 16(4) sets out the prescribed parts of a mountain sheep that a hunter must submit for compulsoryinspection and measurement:

(4) For subsections (1), (2.1), (2.2), (3) and (3.3) the parts to be submitted are . . . (c.1) for a Dall's or Stone's mountain sheep, (

i) an incisor tooth, (ii) the portion of the skull that includes the nasal bones, eye socket, horns and the associated connective bone structure, and (iii) the horns for the insertion of a numbered aluminum plug by an officer, . . . [24] Taken as a whole, the foregoing provisions constitute the regulatory regime with which Mr. Loomis needed to comply to acquirethe right of property in the wildlife. [25] What I must determine is whether Mr. Loomis complied with subparagraph 16(4)(c.1)(ii) of the Hunting Regulation and thus isable to demonstrate that he killed the thinhorn sheep lawfully.

This requires me to first interpret what is required to be submitted for acompulsory inspection under that portion of the Hunting Regulation. [26] More specifically, the parties have framed the issue in main part as being whether Mr. Loomis submitted the associatedconnective bone structure, as required by subparagraph 16(4)(c.1)(ii). Principles of Statutory

Interpretation [27] The first issue I must decide is what is meant by associated connective bone structure, as the parties do not agree on what thephrase means and how it should be interpreted. [28] Determining what it means requires an exercise in statutory

interpretation. [29] As a result, I must keep in mind

section 8 of the

Interpretation Act, R.S.B.C., c. 238, which instructs that: Enactment remedial 8 Every enactment must be construed as being remedial, and must be given such fair, large and liberal construction andinterpretation as best ensures the attainment of its objects. [30] Also, the Supreme Court of Canada, adopting the view of Elmer Driedger in Construction of Statutes (2nd ed. 1983), held inRizzo & Rizzo Shoes Ltd.(Re), (SCC) (“Rizzo”) that: 21 . . . statutory

interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament [31] What I take from this direction is that I must consider the ordinary and grammatical meaning of the words of the phraseassociated connective bone structure but, in order to help resolve any ambiguities presented by the words, I must also consider thecontext in which the phrase appears, including the scheme and object of the enactment, as well as the remedial intention of the Ministerof Forests, Lands and Natural Resource Operations and Rural Development in making the Hunting Regulation.

Object and Scheme of the Wildlife Act and Hunting Regulation

[ 32 ] In applying the direction from Rizzo , I will begin by discussing the objects of both the Hunting Regulation and the Wildlife Act . Understanding the objects of these enactments will help provide context for interpreting associated connective bone structure . [ 33 ] While the specific provision I am interpreting is a part of the Hunting Regulation , the Hunting Regulation exists only as subordinate legislation to the Wildlife Act .

Therefore, it is important to understand the object of the Wildlife Act , first and foremost, as this will then inform an understanding of the object of the Hunting Regulation . [ 34 ] One object of the Wildlife Act is to provide for the effective management of wildlife in British Columbia. A second object is to recognize the value of sustainable hunting in British Columbia, as evidenced by the fact the Wildlife Act expressly permits hunting, albeit with limitation. These objects are not expressly set forth in the Wildlife Act but I have inferred them from reading the Wildlife Act as a whole.

I will refer to these two objects as the twin objects of the Wildlife Act . [ 35 ] For its part, the Hunting Regulation has an object that is complimentary to the Wildlife Act ’s twin objects. The Hunting Regulation ’s object is to create a regulatory mechanism with which a hunter must comply to demonstrate that wildlife has been killed lawfully. In this way, the Hunting Regulation seeks to support the Wildlife Act ’s object of effective wildlife management by mitigating the unlawful killing of wildlife.

At the same time, the Hunting Regulation also seeks to support the Wildlife Act ’s object of recognizing the value of sustainable hunting by creating a compliance mechanism that can lead to a hunter acquiring the right of property in wildlife. As with the Wildlife Act , the Hunting Regulation ’s object is not expressly set forth but I have inferred it from reading the Hunting Regulation as a whole. [ 36 ] I also take note of Madam Justice Forth’s observation in R. v.

Bruehl , 2018 BCSC 1019 , at paragraph 21 , that the conservation measures of the Wildlife Act create a form of partnership between a hunter and the state. In my view, this observation can be extended to the Hunting Regulation and, in particular, the compulsory inspection regime. [ 37 ] Specifically, I find that the Hunting Regulation ’s compulsory inspection regime constitutes a cooperative compliance scheme between a hunter and the state because compliance enforcement under the scheme is heavily dependent on the good faith of the hunter.

As such, this cooperative nature of the regulatory mechanism constitutes an important feature of the overall scheme of the Hunting Regulation . This will be a significant consideration later in my reasons for decision. [ 38 ]

Section 8 of the

Interpretation Act instructs that I must construe the Wildlife Act and Hunting Regulation as being remedial. In this case, by reading the enactments, I find that what the enactments are seeking to remediate, overall, is the unlawful killing of wildlife while still preserving the ability of hunters to acquire the right of property in wildlife killed lawfully. This remedial intent is important for me to keep in mind when interpreting the enactments.

Framing the Specific Issue: What is Associated Connective Bone Structure ? [ 39 ] Having taken account of the objects, scheme and remedial intent of the Wildlife Act and Hunting Regulation , I find that it would be useful for me to more precisely frame the specific statutory

interpretation issue before me as a way of putting the issue into context. [ 40 ] To reiterate, subparagraph 16(4)(c.1)(ii) of the Hunting Regulation requires a hunter to submit for inspection: (ii) the portion of the skull that includes the nasal bones, eye socket, horns and the associated connective bone structure . . . [ 41 ] Mr. Loomis submits that he submitted the associated connective bone structure at the time of mandatory inspection. The government submits that he did not. Whether he did turns on the

interpretation of the phrase associated connective bone structure . [ 42 ] In looking at the wording of subparagraph 16(4)(c.1)(ii), the provision can be plainly broken down as requiring the following to be included in what must be submitted for compulsory inspection of a thinhorn ram mountain: • a portion of the skull; and such portion of the skull must include: o the nasal bones; o the eye socket; o the horns; and ▪ the associated connective bone structure. [ 43 ] In determining what, exactly, the Hunting Regulation requires by using these words and phrases, I first note that these terms are not defined in either the Wildlife Act or the Hunting Regulation .

They have also not been interpreted in any jurisprudence, of which I or the parties are aware. Therefore, to create a starting point for interpreting the provisions of subparagraph 16(4)(c.1)(ii), I have referred myself to the everyday use of the words to the extent possible.

I find this to be the best way to begin implementing the direction of Rizzo that words be read in their grammatical and ordinary sense, harmoniously with the scheme and object of the enactment and the intention of the minister. [ 44 ] In order to place associated connective bone structure in its context, I will first discuss the other requirements of subparagraph 16(4)(c.1)(ii), beginning with the word skull . [ 45 ] Skull is defined by the Britannica Online Encyclopedia as follows: Skeletal framework of the head of vertebrates, composed of bones or cartilage, which form a unit that protects the brain and some sense organs... [ 46 ] This definition provides a useful starting point for determining what a hunter must submit.

Where the Hunting Regulation speaks

of requiring a portion of the skull , it means a portion of the skeleton of the wildlife’s head. By necessary implication, this means that it does not include any parts of the head that are not skeletal, such as soft tissue. Therefore, the requirement to submit a portion of the skull necessarily does not include the brain, eyes, blood or blood vessels, skin, muscles or any other tissue that is not skeletal.

It includes only the skeletal aspect of the wildlife’s head and only a portion of that because u se of the portion clearly limits what is required to something less than the entire skull. [ 47 ] The remaining words of subparagraph 16(4)(c.1)(ii) are: …that includes the nasal bones, eye socket, horns and the associated connective bone structure [Emphasis added.] [ 48 ] The terms nasal bones , eye socket and horns would seem straightforward, as they are terms that have everyday meaning, even for scientific laypeople.

Therefore, it is simple to determine which portion of the skull must be included with reference to those three sub-parts of the skull: it is the portion of the skull where the nasal bones, eye sockets and horns are all found. [ 49 ] This then leads me to the final portion of subparagraph 16(4)(c.1)(ii), which is the one that is disputed by the parties. That is the phrase associated connective bone structure . What does this phrase mean, as used in the Hunting Regulation ? [ 50 ] The phrase is one that confounds.

It is not a phrase that is defined in either the Wildlife Act or the Hunting Regulation and none of the constituent words is statutorily defined either. It also defies easy

interpretation by applying everyday meaning to the words of the phrase as a way of trying to determine a meaning for the phrase because there are different plausible ways to understand the words as they exist in combination with each other. [ 51 ] In short, the phrase is ambiguous. This ambiguity has led to the dispute between Mr. Loomis and the government. [ 52 ] This ambiguity is present both for the phrase as a whole and for the constituent parts of the phrase. The constituent part of the phrase that is the most difficult to interpret is its noun, which is actually a compound noun: bone structure .

Bone would seem to be a straightforward word. It has an everyday meaning that virtually all people would understand. However, what is bone structure ? How is it different from bone? Does it refer to multiple bones forming a structure or does it refer to a bone-like structure? Either

interpretation is equally plausible by looking at the words alone. [ 53 ] The adjectives that form part of the phrase do not much help matters. Associated and connective , by themselves, are not difficult words to define. However, there is no context in subparagraph 16(4)(c.1)(ii) that would allow a reader to ascertain fully and readily how these adjectives modify the noun bone structure . Associated with what?

Connective between what? [ 54 ] Within the enactment, associated connective bone structure appears immediately following horns : . . . horns and the associated connective bone structure. . . [ 55 ] Given this placement, it can be inferred that associated connective bone structure is meant to refer to the structures that connect the horns to the rest of the skull. This makes sense, as even a person with limited scientific knowledge could surmise that the various parts of a thinhorn sheep’s horns are somehow anatomically connected to the rest of its body.

Thus, it seems that associated and connective are meant to convey that this is the type of bone structure to which the Hunting Regulation is referring. [ 56 ] However, is it reasonable to interpret the phrase associated connective bone structure as including anything that is not clearly bone? [ 57 ] In framing the issue before me, I find that this question is the crux of what I am being asked to decide.

However, before answering this question, it is necessary to determine the biological nature of the connective tissues in a thinhorn sheep’s horns so that this finding can then be applied to the answer to the question above. Expert Evidence [ 58 ] To assist with determining the biological nature of the connective tissues, each party tendered expert evidence. [ 59 ] Mr. Loomis tendered Dr. Warren Eastland, who holds a Ph.D. in wildlife science and formerly worked as a wildlife biologist with the United States Department of the Interior, as well as having taught at the University of Northern British Columbia. Dr.

Eastland was qualified at trial as an expert in wildlife bone. [ 60 ] The government tendered Mr. William Jex, Registered Professional Biologist, who has experience in wild sheep management through his employment with the British Columbia Ministry of Forests, Lands and Natural Resource Operations and Rural Development (as it existed at the time of trial). Mr. Jex was qualified at trial as an expert in mountain sheep skull and horn structure. [ 61 ] As a government biologist, Mr. Jex was also involved in the inspection of Mr.

Loomis’s thinhorn sheep after the Conservation Officer Service seized it and, as a result, Mr. Jex had earlier provided the officers with an opinion with respect to the age of the thinhorn sheep. He had also provided opinion letters to Crown counsel to assist with the Crown’s charge assessment function. [ 62 ] Mr. Jex’s expert evidence focussed on the nature of the tissues in a thinhorn sheep’s horns and the associated structures.

Through the opinion letters he provided to Crown counsel, which were tendered at trial as a form of expert report, and his evidence at trial, he explains that thinhorn sheep horns contain a horn core, which is bone. The horn core is covered at the surface by what Mr. Jex characterizes as “connective boney tissue” that is “tissue-like” and which connects the horn core to the outer horn sheath. This connective tissue also feeds the growth of the horn core and sheath. However, Mr. Jex states that it is difficult to discern where bone transitions into something other than bone within such connective tissue.

As a result, in Mr. Jex’s view, the “connective boney tissue”

comprises associated connective bone structure . [ 63 ] Dr. Eastland’s opinion conforms to Mr. Jex’s to the extent that he agrees the horns consist of a bone horn core, a sheath, and connective tissues. However, Dr. Eastland disagrees that such connective tissues are either bone or “boney”. Specifically, he states that it is an error to characterize the layer of connective tissues as “connective boney tissue”.

He distinguishes between the bone that constitutes the horn core, which he says consists of a mineralized matrix produced and fed by one type of connective tissue, and the connective tissues themselves. [ 64 ] On cross-examination, Dr. Eastland agreed that living bone (“green bone”) is more than just the mineralized matrix that he initially described and actually includes other aspects, such as collagen and proteins.

However, he also asserted on cross-examination that bone cannot be bone without the presence of the mineralized matrix, whether the bone is alive or dead, and this mineralized matrix is what distinguishes bone tissue from non-bone tissue. [ 65 ] I find that Dr. Eastland’s expert opinion is of assistance to me. This is because his explanation of what does and does not constitutes bone makes sense. Even without any special training or education, most people would understand that bones grow. Human beings intuitively understand this because we know that our bodies grow between birth and physical maturity.

This necessarily includes the growth of our bones and skeletal system, as our bones are obviously not as big when we are born as when we are adults. Since we understand this about ourselves, we also understand this about other animals. Consequently, we intuitively understand that bone is capable of growth and, in this sense, is living. Dr.

Eastland’s evidence builds upon and amplifies this intuitive understanding in a way that is plausible. [ 66 ] The fact that bone is living and capable of growth should not necessarily mean that bone cannot still be classified as bone and thus distinguished from tissue that is not bone. This, again, would seem intuitive to a layperson and Dr. Eastland’s opinion that the connective tissues in a horn feed the growth of the horn’s bone core and sheath but that the connective tissues are not, themselves, bone, makes sense.

Therefore, I find his explanation to be of assistance in understanding what is and is not bone within a thinhorn sheep’s horn anatomy. [ 67 ] By contrast, I have difficulty with Mr. Jex’s description of the connective tissue as being “boney” tissue. It does not seem plausible that the field of wildlife biology is not capable of more precisely describing tissue other than vaguely classifying it as being “boney”. It seems that wildlife biology should be capable of characterizing tissue within a thinhorn sheep’s horns as being bone, not bone or perhaps tissue that is transitioning to bone as the horns grow.

The opinion evidence of Dr. Eastland provides such clarity; the opinion evidence of Mr. Jex is vague as to whether the connective tissues are bone or not. [ 68 ] I also find that, to some extent, the vagueness of Mr.

Jex’s descriptions stemmed from his desire to fit his description of thinhorn sheep horn structure into the phrase associated connective bone structure as it is used in the Hunting Regulation , rather than confining himself to his expert scientific understandings to assist the Court. [ 69 ] This especially comes through in the opinion letters he drafted for the benefit of Crown counsel and which were tendered at trial. While I am cognizant that Mr.

Jex perhaps did not draft the letters with the knowledge that they would be tendered in Court, they were, nonetheless, drafted to assist Crown counsel with a charge assessment. As such, Mr. Jex’s duty in drafting the letters was to assist Crown counsel in its quasi-judicial function in performing the charge assessment; this should have been done only with recourse to his pertinent expert opinions as a scientist and not to his role as a government official seeking to explain and uphold the minister’s regulatory drafting choices. [ 70 ] As a result, I find that Mr.

Jex’s evidence sometimes conflates his duty to the Court as an expert witness and his duties as a government official and this affects the weight I am able to place on his evidence. [ 71 ] Consequently, I find less assistance in the expert opinion of Mr.

Jex as it pertains to determining what is and is not bone within a thinhorn sheep’s horns. [ 72 ] As a secondary aspect of the expert evidence, I also note that neither expert witness demonstrated that he has a clear and legitimate understanding of the phrase associated connective bone structure that he has attained through sustained use of that phrase (or any similar phrase) in a scientific context.

While each expert witness gave evidence about his professional knowledge of a thinhorn sheep’s horn structure, neither mentioned regularly using the phrase associated connective bone structure in a purely scientific context, beyond any need to apply the Hunting Regulation . I consider this to be significant, as I detail further in the coming sections. [ 73 ] However, to summarize, as I move forward in my analysis, I accept Dr.

Eastland’s expert opinion that a thinhorn sheep’s horns include tissues that connect a horn’s bone core to the horn sheath and feed both structures but that such connective tissues are not, themselves, bone. I do not find that any concessions Dr. Eastland made on cross-examination detracted from the viability of his opinion that the bone core can be distinguished from the connective tissues that feed the bone and that such connective tissues are not, themselves, bone. [ 74 ] Accepting Dr.

Eastland’s opinion as to what is bone and what is not bone within a thinhorn sheep’s horns will play a significant role in my overall findings. However, accepting Dr. Eastland’s opinion is not dispositive of the ultimate issue of how to interpret the phrase associated connective bone structure as found in the Hunting Regulation . This interpretive task is an issue of law that requires further considerations, as I detail below.

Jurisprudence and Use of Associated Connective Bone Structure in Other Jurisdictions [ 75 ] The parties advise me that there is no legal authority in British Columbia that interprets associated connective bone structure . [ 76 ] I have also not been able to locate any other use of the phrase associated connective bone structure in the primary or subordinate legislation of any other jurisdiction as a way of possibly assisting my understanding of how to interpret and apply the phrase.

Whether the phrase appears in any other jurisdiction was not a point on which the parties made submissions; however, on my own initiative, I

attempted to identify use of the phrase in other jurisdictions. My search proved fruitless. [ 77 ] I find that my inability to locate any use of the phrase associated connective bone structure in the law of another jurisdiction is instructive. It allows me to infer that the phrase is not a legal term of art, as would be evidenced by its widespread use in the statutory law of various jurisdictions. It also allows me to infer that it is not a commonly used phrase in the scientific community, such that it would warrant reproduction in statutes across multiple jurisdictions.

This latter point would seem to accord with the absence of evidence from both Dr. Eastland and Mr. Jex that the phrase enjoys regular usage in the scientific community. [ 78 ] The fact that associated connective bone structure seems to have, at best, limited use beyond the Hunting Regulation is another factor I considered in determining how to interpret the phrase. Regulatory Intent [ 79 ] The statutory

interpretation direction from Rizzo includes an instruction that legislative (in this case, regulatory) intent be considered. [ 80 ] As a result, it is incumbent on me to consider the evidence before me with respect to regulatory intent, although such evidence is limited. [ 81 ] To the extent that such evidence is before me, it comes from Mr.

Jex, primarily from his January 16, 2019 opinion letter, where he states at page 5: …I would offer that in this context, the current wording “…associated connective bone structure…” is likely the product of a slightly changed regulation proposal that would have originally wanted the horn sheaths to remain naturally attached and/or retained attached to the head in a natural fashion to the horn cores when the head/skull is submitted for [compulsory inspection] and insertion of a horn pin plug, consistent with the cautionary language provided in the [compulsory inspection] manual. [ 82 ] I infer from this passage, as well as other portions of Mr.

Jex’s evidence, that the original intent of the government wildlife biologists who advised the minister was to require hunters to submit thinhorn sheep horns naturally attached to the skull for compulsory inspection. However, due to the vagaries of the regulatory drafting process, the phrase associated connective bone structure was chosen instead of a more direct formulation that simply and concisely directs that the horns be naturally attached to the skull. [i] [ 83 ] In the same opinion letter, Mr.

Jex asserts that it is “common knowledge” that horn sheaths must remain naturally attached to the skull for compulsory inspection so that the curl of the thinhorn sheep can be accurately measured.

He seems to make this assertion to advance the proposition that hunters should know that thinhorn sheep horns are to be naturally attached to the skull for inspection, even if the enactment does not directly express that. [ 84 ] While it seems logical that this would be the best way to measure the curl of the horns, I do not have sufficient evidence before me to determine whether such common knowledge actually exists, especially among hunters. Therefore, I cannot accept Mr.

Jex’s assertion that this is common knowledge and, consequently, I cannot consider such purported common knowledge in determining how to interpret associated connective bone structure . [ 85 ] As a result, while I accept that the original intent of government biologists may have been to require hunters to present the horns naturally attached to the skull for inspection, I must juxtapose that against the actual words of the Hunting Regulation that the minister ultimately enacted.

In doing so, I must note that the Hunting Regulation does not say “naturally attached” or anything that could reasonably be considered to be close to this; instead, it says associated connective bone structure . In my view, the wording that actually appears in the enactment is so far removed from what Mr.

Jex describes as the original intent of government biologists that I find that I cannot place any weight on the described original intention of the government biologists as a way of helping to interpret the enactment. [ 86 ] The apparent intention of government biologists was to require the horns to be naturally attached to the skull for compulsory inspection. The minister chose to enact a different formulation. I find that this leads to the inference that the minister knowingly chose to depart from the standard that the government biologists had preferred and instead enacted a different standard.

The end result is that the original intent of the government biologists, as detailed in Mr. Jex’s evidence, is not relevant to interpreting the Hunting Regulation as enacted. Interpreting Associated Connective Bone Structure from the Standpoint of a Hunter [ 87 ] Before moving on to the next part of my analysis, it may be helpful to summarize the most germane aspects of what I have determined so far: • I find that whatever is meant by associated connective bone structure , it must necessarily be a part of the skeleton of a thinhorn sheep’s head; • I accept Dr.

Eastland’s opinion that the connective tissues in a thinhorn sheep’s horns are not bone; • I find that associated connective bone structure is a phrase with, at best, limited usage, beyond the Hunting Regulation ; • I find that there is insufficient evidence before me to find that it is common knowledge that horns are to be presented for compulsory inspection naturally attached to the skull; • I find no assistance in the limited evidence I have before me as to regulatory intent; and • I find that the overall legislative and regulatory scheme creates a cooperative endeavour between a hunter and the state in order to advance the twin objects of the Wildlife Act .

[ 88 ] Given the above determinations, and keeping in mind the principles of statutory

interpretation, I find that the best way to resolve the inherent ambiguity of associated connective bone structure is to determine what the phrase is most likely to mean to a hunter who must comply with the provision. [ 89 ] This is because, to be effective, the Hunting Regulation needs to be understood and applied by hunters if they are to participate effectively in the cooperative regulatory scheme that exists under the Wildlife Act and Hunting Regulation .

In other words, the phrase should be interpreted in a manner that is consistent with the likely understanding of a hunter who has no special training, education, or expertise but must, nonetheless, comply with the provision. [ 90 ] However, such an approach still requires recalling the object of the Hunting Regulation : to create a regulatory scheme that advances the Wildlife Act ’s twin objects of effective wildlife management and the recognition of the value of sustainable hunting in British Columbia.

To achieve these objects, the Wildlife Act and Hunting Regulation allow thinhorn sheep hunting but only within prescribed limits based on geography, time of year and the sex and age of the wildlife, inter alia .

To ensure compliance with these prescribed limits, the regulatory scheme creates a regime of reporting and compulsory inspection and measurement and the phrase associated connective bone structure is a part of that regime of compulsory inspection. [ 91 ] I find it reasonable to infer that, in making the Hunting Regulation , the minister did not include the phrase associated connective bone structure gratuitously.

Rather, the minister included it for some remedial purpose. [ 92 ] Given the phrase’s location within paragraph 16(4)(c.1), which constitutes the specific regime for what needs to be submitted for compulsory inspection of a thinhorn sheep, it is obvious that the minister’s remedial purpose in including the phrase was to require a hunter to include whatever is meant by associated connective bone structure among the other parts of the sheep’s skull that are required for inspection. The overall scheme of the legislation makes it clear that a thinhorn sheep must be full curl to be legally harvested.

It is equally clear that the minister’s purpose in prescribing the particular wildlife parts that must be submitted for inspection was to make it possible for an inspector to verify that the animal is full curl. I must keep this purpose in mind as I seek to interpret the meaning of associated connective bone structure . [ 93 ] However, as I state above, in order to contribute to effective wildlife management, the Hunting Regulation must be clear on what is required of a hunter, regardless of the remedial intent. Considering this factor is what ultimately leads me to reject the government’s

interpretation of associated connective bone structure as including the connective tissues within the horns. [ 94 ] This is because a regulation that is not clear for a hunter begets noncompliance, which does not advance the object of effective wildlife management. Therefore, it is not reasonable to conclude that the minister’s intention was anything other than to communicate clearly and concisely to a hunter what the hunter is required to present to an inspector.

It thus follows that it is not reasonable to conclude that the minister’s intention was to use a phrase that is a unique government formulation that requires a hunter to have special knowledge of how the phrase is interpreted and used by government officials.

Instead, it is reasonable to conclude that the minister’s intention was to create an enactment that could be understood even by someone without special training and who may be encountering it for the first time. [ 95 ] A phrase that enjoys only limited and particularized government usage would not tend to clarify for a hunter what is required; rather, such a phrase would tend to create confusion, especially if it is capable of various reasonable

interpretations by anybody who is not familiar with the government’s particular use of the phrase. [ 96 ] Instead, I find that the overall scheme and objects of the Wildlife Act and Hunting Regulation are such that it is reasonable to conclude that the minister’s intention was to create a regulation that is easy to understand by someone who is a scientific and legal layperson, which is what most hunters are.

This is the only way that the Hunting Regulation can reasonably be construed as being remedial because a regulation that confuses does not engender cooperation and compliance and thus is not truly remedial. [ 97 ] Consequently, I find that the best way to determine what associated connective bone structure means is by focussing on the grammatical and ordinary sense of the phrase as it is likely to be read by a hunter. The Grammatical and Ordinary Sense of the Phrase [ 98 ] Determining the grammatical and ordinary sense of the phrase is best done by beginning with the phrase’s noun.

That is the portion of the phrase that will naturally anchor its meaning for any layperson who must read, understand, and apply the Hunting Regulation . [ 99 ] In this case the noun is actually a compound noun: bone structure . Notwithstanding the adjectives associated and connective that also appear in the phrase to modify the noun bone structure , the noun is the starting point in determining what the phrase means. The adjectives then act to modify the noun after that starting point has been established.

As a matter of common sense, I find this to be the natural way in which a person reads and understands phrases. Once the phrase is broken down in this fashion, I conclude that, whatever is meant by associated connective bone structure , the meaning is based, inextricably, on bone structure . [ 100 ] This conclusion also recalls that the associated connective bone structure that a hunter must submit is something that, according to the very structure of the Hunting Regulation , necessarily is a part of the portion of the skull that must be submitted for inspection. Given my findings above in the

section where I frame the issue, bone structure can thus unambiguously be said to be something that must, necessarily, be skeletal. As a result, any tissue that is not skeletal is necessarily excluded from the meaning of associated connective bone structure . [ 101 ] Even though the phrase includes the words associated and connective , these adjectives cannot operate to change the noun to anything other than bone structure . In other words, these adjectives, as a matter of grammatical logic, cannot operate to modify the noun to such a degree that they change the noun into some other noun.

If the minister’s intention was to require something other than skeletal tissue, then the grammatically logical choice of words would include a noun that actually represents that other item, rather than seeking to modify bone structure beyond its logical and grammatical limits.

[ 102 ] For instance, if the minister’s intention was to include any soft or other non-skeletal tissue in what must be submitted for inspection, then such item could have been expressly included alongside or instead of bone structure . It was not. As addressed above, the minister also could have chosen to simply say that the horns must be naturally attached to the skull.

Such a formulation was not chosen either. [ 103 ] As a result, I find that a phrase that is based on the noun bone structure and that does not include any other nouns that communicate any other anatomical parts, such as soft tissue, must be interpreted as being a phrase that was chosen by the minister to convey that nothing more is required to be submitted by a hunter other than skeletal tissue. Issue 1 Conclusion [ 104 ] To reiterate,

section 8 of the British Columbia

Interpretation Act states that: Enactment remedial 8 Every enactment must be construed as being remedial, and must be given such fair, large and liberal construction and

interpretation as best ensures the attainment of its objects. [ 105 ] The specific remedial purpose of the disputed portion of the Hunting Regulation is to communicate to hunters what they must submit at a compulsory inspection, so that the inspector can determine whether the curl of the thinhorn sheep is sufficient to be lawful. This is what advances the twin objects of the Wildlife Act . This is best done by being clear on what is required and not confusing hunters with ambiguous phrases or little understood terms. [ 106 ] Therefore, the

interpretation of the phrase associated connective bone structure should favour simplicity and clarity, above all else. That is what allows the Hunting Regulation to achieve its remedial effect and, hence, contributes to the Wildlife Act ’s twin objects. Giving the phrase a construction and

interpretation any larger or more liberal, as the government urges, would cause the phrase to stray into the realm of the unknowable for the average hunter, which would impede the process of verifying the curl of the wildlife. This, in turn, would frustrate the objects of the Wildlife Act and Hunting Regulation , rather than advance them. [ 107 ] As outlined above, the simplest way to understand the phrase is through direct reference to the noun bone structure that anchors the phrase. I find that this noun does not include anything that is not skeletal tissue. [ 108 ] This

interpretation satisfies the Rizzo requirement that an enactment be read in its entire context and in its grammatical and ordinary sense harmoniously with the scheme of the enactment, the object of the enactment, and the intention of the authority that made the enactment. This is because the context here is a scheme for effective wildlife management that also recognizes the value of sustainable hunting, in part through compulsory inspection and measurement requirements. Effective inspection and measurement of a thinhorn sheep is only achieved if hunter and inspector alike are clear on what must be submitted for inspection so that regulatory enforcement can happen cooperatively. Therefore, an

interpretation of the Hunting Regulation that is based on the common, everyday usage of the words and phrases it contains respects the grammatical and ordinary sense of those words and phrases. This, in turn, is harmonious with the cooperative nature of the scheme and also the objects of the Wildlife Act and Hunting Regulation . [ 109 ] Consequently, I find that associated connective bone structure refers to skeletal tissue and nothing more. Applying Dr.

Eastland’s expert opinion evidence to this finding leads me to conclude that the connective tissues in a thinhorn sheep’s horns are not skeletal and thus are not included in the phrase associated connective bone structure . ANALYSIS - ISSUE 2: DID MR. LOOMIS COMPLY WITH THE HUNTING REGULATION ? [ 110 ] In applying the above findings to the facts of the case at bar, I find that Mr. Loomis has demonstrated on a balance of probabilities that he complied with the Wildlife Act and Hunting Regulation . [ 111 ] The uncontested evidence is that Mr.

Loomis submitted for inspection the portion of the skull that includes the nasal bones, the eye socket and the horns, as required. The evidence is also that this portion of the skull had all of the soft tissue, including the connective horn tissues, removed by boiling. However, there is no evidence that any skeletal tissue, meaning bone, was destroyed along with the connective and other soft tissues. Since I have found that the connective tissues are not skeletal, I find that Mr. Loomis submitted for inspection all of the portions of the skull that are required by the Hunting Regulation .

Consequently, I also find that the parts of the wildlife that Mr. Loomis submitted necessarily also included the associated connective bone structure , as required. [ 112 ] The uncontested evidence is also that the thinhorn sheep successfully passed the compulsory inspection, which, in turn, implies that the inspector was satisfied that he was able to determine the curl of the animal and that the thinhorn sheep was, indeed, full curl. This evidence satisfies me that the thinhorn sheep was, in fact, full curl, as required by the Hunting Regulation . [ 113 ] Consequently, Mr.

Loomis has demonstrated that he complied with all of the requirements of subparagraph 16(4)(c.1)(ii) of the Hunting Regulation . This being the issue before me, I am satisfied that Mr. Loomis acquired the right of property in the wildlife and I am satisfied that he is lawfully entitled to the wildlife. [ 114 ] Accordingly, and pursuant to subsection 97.6(4) (

a) of the Wildlife Act , I order that the thinhorn sheep parts seized by the Conservation Officer Service be returned to Mr. Loomis once the appeal period has expired. ALTERNATIVE GROUNDS [ 115 ] Having found that Mr. Loomis complied with the Wildlife Act and Hunting Regulation and that he thus acquired the right of property in the thinhorn sheep, I find it unnecessary to address Mr. Loomis’s alternative submissions with respect to officially induced error and due diligence and I decline to do so.

ORDER [ 116 ] As soon as practicable following 30 days from the date of this Order, the Clerk of the Court shall release to Joseph Kenneth Loomis the parts of the thinhorn ram mountain sheep that are presently being held by the Clerk of the Court as Exhibits 3 to 8 to this proceeding, unless a notice of appeal has been filed and a copy thereof has been provided to the Clerk of the Court. [ 117 ] As soon as practicable following 30 days from the date of this Order, the British Columbia Conservation Officer Service shall return to Joseph Kenneth Loomis any parts of the thinhorn ram mountain sheep seized from Joseph Kenneth Loomis that may still be in the possession of the Conservation Officer Service, unless a notice of appeal has been filed. _________________________ O.

Fleck, PCJ Provincial Court of British Columbia [i] On April 22, 2021, after the commencement of this proceeding, the minister amended subsection 16(4) of the Hunting Regulation by repealing paragraph 16(4) (c.1) and amending paragraph 16(4)(

c) to read as follows: (

c) for a mountain sheep, (

i) the portion of the skull that includes, naturally attached to the skull, the nasal bones, eye socket, horns and the associated connective bone structure, and (ii) an incisor tooth, if the mountain sheep is a Dall's or Stone's mountain sheep For the purposes of my decision, I have drawn no inferences from the amendments or their timing.