Crawford v. British Columbia (Attorney General), 2019 BCPC 76

Citation: Crawford v. British Columbia (Attorney General) 2019 BCPC 76 Date: 20190409 File No: 104752-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Wildlife Act, R.S.B.C. 1996) BETWEEN: MACKENZIE CRAWFORD APPLICANT AND: HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.R. HARRISON Counsel for the Applicant, M. Crawford : C. AuBuchon Counsel for the Respondent: P. Ameerali Place of Hearing: Kamloops , B.C. Dates of Hearing: January 8, 9 and 10, 2019 Date of Judgment: April 9, 2019

The Application [ 1 ] Mackenzie Crawford has applied for the return of a thinhorn mountain sheep ram held after compulsory inspection. It is not disputed that this thinhorn sheep (“the Crawford ram”) was a Stone’s sheep taken by Mr. Crawford on September 6, 2016 while he was on a hunting trip with his father, Clayton Crawford, and a friend, Sheldon Romain, in the vicinity of Crehan Creek, south of the Muskwa River in Region 7 - Omineca-Peace, in northern British Columbia.

This area is within Management Unit (“MU”) 7 – 42. [ 2 ] It is asserted by the Crown that the Crawford ram was taken unlawfully as it had not then attained the age of 8 years. [ 3 ] Mr. Crawford Sr. and Mr. Romain gave evidence relating to the circumstances of the hunt and related how the Crawford ram came to be taken by the applicant. [ 4 ] Under the legislative scheme, specifically the Wildlife Act [R.S.B.C. 1996]

Chapter 488 as amended (“the Act ”) and the Wildlife Act Hunting Regulation , B.C. Reg. 190/84 as amended, (“the regulations”), ownership in all wildlife in British Columbia is vested in the government: s. 2(1) of the Act . [ 5 ] Section 2(3) of the Act allows that: 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. [ 6 ] Section 26(1) (

c) of the Act sets out that: A person commits an offence if the person hunts, takes, traps, wounds or kills wildlife…at a time not within the open season. [ 7 ]

Section 15 of

Schedule 7 of the Regulations states the following: 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. [ 8 ] The expression “full curl thinhorn ram mountain sheep” is defined in s. 1(1) of the regulations which sets out that: “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; [ 9 ] The secondary definition set out above relating to the prescribed view of the horn tip without reference to the age of the ram is of no application on the facts of this case.

The parties are agreed that the Crawford ram was lawfully killed only if it can be shown that it was a thinhorn ram mountain sheep of at least 8 years of age as evidenced by true horn annuli when taken by the applicant. [ 10 ] The Crawford ram was subject to a compulsory inspection (“CI”) which was conducted on September 29, 2016 by Mr. Iredale, a designated inspector. Upon examination, the Crawford ram was determined by the compulsory inspector not to have attained the age of 8 years. This remains the position of the Crown. As a consequence, the ram has not been returned to Mr.

Crawford and this action was commenced. No prosecution was taken under the Act or Regulations . [ 11 ] This application was commenced and the applicant seeks an order pursuant to s. 97.6(4) (

a) of the Act that the Crawford ram be returned to him. That order will flow only if I am satisfied to the civil standard that the applicant is lawfully entitled to the wildlife. [ 12 ] The essential question is, has the applicant shown on a balance of probabilities that the Crawford ram had attained the age of 8 years when it was taken as evidenced by true horn annuli? True Horn Annuli [ 13 ] Thinhorn ram mountain sheep may be aged by reference to the number of true horn annuli. Thinhorn lambs are born in late spring or early summer.

An annulus is an age ring which corresponds to the cessation of one year’s summer horn growth before the rut in November and the commencement of the next year’s horn growth in late May of each year. In lambs and immature yearling males the annulus will not be the sharp demarcation displayed in the horns of mature rams but may display a portion of yearling horn marked by a bulge rather than an annulus. [ 14 ] True horn annuli are to be distinguished from false annuli which may resemble true horn annuli in some respects but reflect changes in horn growth attributable to ill health in the animal.

A count of true horn annuli, where they are available to be seen, may provide the age of the ram. [ 15 ] The examination of annuli to determine age is more difficult where some portion of the horn, including annuli, may have worn or broken away or otherwise have been “broomed off”. Brooming is not unusual in thinhorn rams and may occur during grazing, by accident or in competition between rams. The small outward end of the horn, known as a lamb tip, may be most easily broomed off, though larger sections including annuli may also be removed. [ 16 ] In the present case both the Mr.

Crawford and the Crown called expert witnesses to assist the court in determining the age of the Crawford ram. Dr. Valerius Geist [ 17 ] The applicant called Dr. Valerius Geist who was qualified as an expert entitled to give opinion evidence on aging thinhorn sheep.

[18] Dr. Geist is a retired academic and Professor Emeritus of Environmental Science at the University of Calgary. He has animpressive curriculum vitae and earned a B.Sc. degree (Honours) in Zoology from the University of British Columbia in 1960, a Ph.D. inZoology from UBC in 1967. He also did postdoctoral work at the Max Planck Institute in Germany in 1968. [19] Commencing in the 1950’s and into the 1960’s, Dr. Geist’s work included studying populations of Stone’s mountain sheep inthe area of the Moskwa and Prophet Rivers, bighorns in Banff, Alberta and Dall sheep in Yukon Territory.

He studied Stone’s sheep fora further period in the 1970s. His work involved daily observation in the wild and included tagging programs. Dr. Geist said he hadstudied many hundreds of thinhorn sheep. [20] Dr. Geist worked under the supervision of Professor Ian McTaggart-Cowan, a well-known Canadian zoologist. Dr. Geisteducated and mentored people in the process of aging mountain sheep, including BC Fish and Wildlife Branch employees. He hassupervised Masters and Ph.D. students for over 60 years.

He taught at the University of Calgary for 27 years and visited his students inthe field in the course of their studies. [21] Dr. Geist has published many technical papers and popular articles as well as four books on mountain sheep. Three weredescribed as technical books and one as non-technical. [22] Though retired 24 years, Dr. Geist said he is still consulted on wildlife matters including the assessment of the age of mountainsheep. He has appeared before commissions and policy making bodies in both Canada and the United States.

He continues to beconsulted on litigation cases and has been qualified as an expert witness in the courts of many American states and Canadian provinces.His expertise was accepted in a wildlife prosecution before this court: Regina v. Eng, 2012 BCPC 576 , 2012 B.C.P.C. 576 andreferred to by Dr. Geist in his evidence here. [23] Dr. Geist described horn aging as both a required and a subjective skill in judging the age of thinhorns. It is easy tounderestimate the age of rams, he said.

It is important to be aware of the significant differences between populations of high mountainsheep and lower level populations which might have had access, for example, to forage invigorated by human activity. He said that itwas plain that environmental factors overrode genetics other than in a comparison of horn size in bighorn sheep as opposed to thinhornsheep. [24] Dr. Geist was cross-examined at length on the usefulness of the horn segment length as measured by CI inspectors and used bygovernment biologists to assist in determining the age of thin horn rams. Dr.

Geist asserted that if one has not identified from the outsideof the horns where the summer’s horn growth terminated, then the segment measurements are flawed and entire model is flawed. Dr.Geist could not vouch for the adequacy of the training of compulsory inspectors or the accuracy of their horn measurements. [25] Dr. Geist considered that there is great variability in horn growth even within the same population and that distance betweenannuli provide a poor measure of the age of an animal because of that variability.

He said it was an error to go from statistical averages ofhorn segments to determine the age of an individual animal. He compared it to an attempt to judge a person’s age by their shoe size. Itwas, he said, irrelevant. [26] By way of illustration, he had seen Stone’s rams from the same population with: • 45 inches of horn growth in 10 years; • 35 inches of horn growth in 10 years; and • 32 inches of horn growth in 14 years [27] In each of these cases there had been no difficulty in aging the sheep.

He said that the only things required in the accurate agingof a ram is the ram’s head itself and an understanding as to the population it came from. “Then you have to be able to read what the horntells you,” he said in evidence. He said he had pioneered the measurements of rams’ horns and had they been of any use in aging ramsthey would have used them 50 years ago. [28] Dr. Geist testified in cross-examination that the use of X-ray technology was interesting but not necessary. He had no experiencewith X-ray imaging in aging thinhorn rams.

He noted that annuli were visible from the outside of the horn not the inside. He repeatedthat horn length measurements were irrelevant to determining the age of a ram though horn thickness and proportion were. [29] Dr. Geist opined that the Crawford ram had lost at least 6 to 7 inches of early horn growth due to brooming. He posited that thethickness at the base of a young ram’s horns was a bit thicker than his own thumb and that the horn of a 2.5 year old, even a poor one, ismuch, much thicker.

There is no comparison between them, he said. [30] He also noted that factors as varied as wolf predation and strip mine rehabilitation efforts involving fertilizer could impact forbetter or worse the quality of available forage and thus body and horn size as well as impacting the achievement of sexual maturity andthe diameter of each annulus. [31] Given the area where the Crawford ram was killed, Dr. Geist considered the Crawford ram to be a normal ram from a northernmountain range where the population would have relatively low body and horn growth.

Sexual maturation might be delayed to 2.5 yearsthough some individuals, even on mediocre ranges, could mature barely at 1.5 years of age. The horn growth recorded that faithfully hesaid. [32] In Dr. Geist’s exhibited report he commented on his examination of the Crawford ram horns, and in particular at the break: I observed that the location where the horn broke off was at an annulus, which is an age ring in the horn, and that it is larger than 2inches in diameter at the breakage point. A small number of such rams mature at 1.5 years of age, but most mature at 2.5 years of age.

Aram must be sexually mature to form an annulus or age ring. If the animal had matured at 1.5, the diameter would be about 1.5 inches at

the most. I therefore determined that the annulus in question must be the 2.5 year annulus and that the ram was sexually mature when it formed. [ 33 ] Dr. Geist concluded on the evidence before him, including the true annuli still present on the Crawford ram horn, that he was certain that the Crawford ram was at least 8.5 years old and more probably 9.5 years old when it was taken. The Crown Case [ 34 ] The Crown did not call Mr. Iredale, who had conducted the CI of the Crawford ram.

However, the Crown did call William Jex, a Regional Wildlife Biologist with the Ministry of Forests, Lands, Natural Resource Operations & Rural Development (MoF) located in Smithers, BC. [ 35 ] Mr. Jex’s expertise was recognised and he was qualified to give opinion evidence on the aging of the Crawford ram as evidenced by true horn annuli and to respond to the evidence of Dr. Geist. [ 36 ] The academic qualifications of Mr.

Jex are slender and consist of a diploma as a Fisheries and Wildlife Technologist granted in 1989 following a diploma as a Fisheries and Wildlife Technician granted in 1988, both by the Sir Sandford Fleming College, School of Natural Resources in Lindsay, Ontario. [ 37 ] Nonetheless in 2002, Mr. Jex achieved the British Columbia professional designation Registered Professional Biologist (RPB). He noted here that he was only the second person to receive that designation who had not earned a university degree. [ 38 ] Between 1988 and 1996, Mr.

Jex did a lot of work as an employee or consultant with the Ontario Ministry of Natural Resources, particularly in the areas of fisheries and wetlands. In 1996, Mr. Jex moved to British Columbia to take up a series of positions with the Ministry of Environment, Lands and Parks (MoE) in Chilliwack. Between 2000 and 2007, Mr. Jex held the position of ecosystem biologist there. [ 39 ] In July 2007, Mr. Jex took up the same position, MoE ecosystem biologist for the Skeena region. In July 2008, he came into his present job as Regional Wildlife Biologist and is now with MoF in Smithers. [ 40 ] Mr.

Jex’s curriculum vitae sets out that he represents the province as “the lead” on thinhorn sheep. He is the BC government appointee on the Wild Sheep Working Group of the Western Association of Fish & Wildlife Agencies and represents northern provincial government interests on the provincial Wild-Domestic Sheep Advisory Committee. He also sits as the provincial representative on several First Nation Fish and Wildlife Working Groups and with other stakeholder groups and environmental NGOs. [ 41 ] Mr.

Jex has been responsible for administering the Skeena region contractor CI program, selecting and teaching CI contractors for mountain sheep and goats and for quality assurance on their monthly CI reports. Mr. Jex reported that he conservatively estimated that he had personally assessed and reviewed in excess of 500 thinhorn sheep ram horn sets to determine compliance with harvest regulations and to ascertain both age and horn curl data. He has provided advice and training to inspectors in other regions of the province.

He has also been involved with Wildlife Act prosecutions and has provided expert evidence to the courts in such cases. [ 42 ] Mr. Jex has been involved in writing, editing or otherwise contributing to a variety of wildlife papers and reports, a number of them in relation to thinhorn mountain sheep. Some of these papers have been published or presented at conferences, others are unpublished. Mr.

Jex was lead author on a 2016 paper Thinhorn Sheep: Conservation Challenges and Management Strategies for the 21 st Century for the Wild Sheep Working Group, Western Association of Fish and Wildlife Agencies, Boise, Idaho. [ 43 ] Mr. Jex attributed a lot of his learning to working under the guidance of two senior wildlife biologists, Mr. Schultz and Mr. Marshall, each of whom had 30 years’ or more experience as wildlife biologists. Mr. Jex also stated that aside from his government work, he has hunted for Stone’s sheep and he operates a business as a taxidermist specializing in ungulates. [ 44 ] Mr.

Jex expressed the view, contrary to Dr. Geist, that an annulus forms without regard to the sexual maturity of the ram, the annuli merely become more pronounced with age. Mr. Jex said he spoke with Mr. Crawford Sr. about the Crawford ram horns and agreed to do a review of the age of the ram. Mr. Jex said he conducted the review in advance of receiving other opinions, including presumably that of Dr. Geist. [ 45 ] Mr. Jex said that in conducting the review of the Crawford ram, he brought with him over a decade of experience of assessing thinhorn ram horns in the context of the hunting regulations.

He said that in his professional view the Crawford ram had 7 annuli and that was the extent of it. He was firm in his opinion that the Crawford ram was under 8 years when it was taken. [ 46 ] In his report, Mr. Jex was dismissive of Dr. Geist’s reported observations as being based on an historic understanding behavioural ecology, personal experiences and generic, cross-species considerations “which may or may not even be relevant to the Crawford ram”. [ 47 ] Although Mr.

Jex agreed he also used personal observations and experience, his observations were supported he said by the on- going experience of assessing more than 100 additional thinhorn ram horn sets each year. He said that unlike Dr. Geist, his opinions were normally supported through interpreted evidence such as X-rays, tooth aging “and/or with an analysis of applicable analytical data and current science.” [ 48 ] Mr. Jex gave evidence regarding a number of exhibited X-ray images of the Crawford ram horn. Mr.

Jex said these X-rays or some of them, showed the presence of the “one year bulge” and confirmed, given the number of true annuli observed, the age of the ram as seven years. With respect to this evidence, the bulge referred to in the X-ray was not apparent to me when I inspected the X-ray exhibits. Furthermore, there was no evidence that Mr. Jex had received any recognised training or education in reading or interpreting veterinary radiological images to assist in aging thinhorn ram horn sets. Accordingly, I attached very little weight to this particular evidence.

[ 49 ] Reference was also made to the absence of the provision of an incisor tooth from the Crawford ram by Mr. Crawford at the time of the CI as required by s.16 of the Regulations . The fact that no incisor was submitted by Mr. Crawford in respect of the ram eliminates the possibility of using analysis of the tooth cementum to confirm the age of the ram.

Crown counsel was clear that the Crown was not asserting that the ram was taken illegally for failure to submit an incisor, but that the applicant’s failure to provide the tooth was a factor to be taken into consideration when determining whether he had met his burden. [ 50 ] Mr. Jex took issue with Dr. Geist’s assertion that had horn measurements been any use “we would have used them 50 years ago.” Mr. Jex underlined that as part of the CI process since 1975, BC had gathered horn measurement data from approximately 16,000 thinhorn sheep rams.

He went on to say: Several studies examining this data have been published in peer reviewed journals as recently as 2016, and the value of this database grows with each year. In light of new cutting edge genomic research involving BC thinhorn sheep, the relevance of horn growth morphology at localized scales is being used and is proving highly informative, reliable and valuable. [ 51 ] Mr. Jex looked at the horn increment length for the Crawford ram and other rams from the same MU 7 – 42. This was a CI dataset from 1975 – 2017 and involved in total 1,848 rams.

Subsets were also compared involving rams taken from 7 – 42 harvested between 2007 – 2017 (368 rams) and rams identified has having either 7 or 9 annuli at the time of harvest (18 rams). These rams were noted by Mr. Jex as being included as part of the specific potential cohort of rams to which the Crawford ram belonged. [ 52 ] Mr. Jex did not generally endorse individual to individual comparisons due to the potential for high variability between individuals but did so at the request of Crown counsel. Mr.

Jex found “reasonable alignment” with the measured growth between the Crawford ram and those individuals who were determined to have at least 7 annuli. [ 53 ] Mr. Jex also plotted several graphs in Exhibit 8. The first graph was “Mean and Specific Inter-Annuli Horn Growth (i.e., proportional symmetry) Aligned by Age, Using CI Horn Data” The disputed measurements were removed, namely 0 - 1 years (lambs) and 1 – 2 years (yearlings). There was tight alignment revealed between the CI datasets and the Crawford ram CI data.

By contrast there was poor alignment between those plots just mentioned and the plot “Geist initial annulus = 2” and poorer yet with “Geist ram with 9 annuli.” [ 54 ] A second graph entitled “Potential Crawford Cohort Rams Mean Horn Increment Lengths Plotted Against the Assessment of 7 and 9 Annuli” revealed similarly poor alignment with the two Geist models. [ 55 ] These results, if accepted, support Mr. Jex’s conclusions as reflecting the likely age of the Crawford ram as 7 at its death.

In the Crown submission, the assertion that the Crawford ram was 9 years is said to be virtually impossible, the assertion that it was 8 years of age is improbable while the 7 year assessment meets entirely with expectations for a ram that age. Conclusion [ 56 ] As is evident from the expert opinion heard in this case, the aging of the Crawford ram is not a straightforward exercise.

Two well-qualified people with ample expertise and experience could not have disagreed more plainly in their assessments of the age of the ram. [ 57 ] At the outset, the question was put “Has the applicant shown on a balance of probabilities that the Crawford ram had attained the age of 8 years when it was taken as evidenced by true horn annuli?” [ 58 ] In considering all the evidence put before me on this matter, including the failure to submit an incisor tooth for analysis, I am not satisfied that the applicant has established on a balance of probabilities that the Crawford ram had reached the required age and was therefore lawfully taken.

In the result, the application for the return of the wildlife is refused. [ 59 ] Pursuant to s. 97.6(4) (

c) of the Act , an order will go to the effect that that the wildlife shall be returned to the government to be disposed of as the minister directs, subject to s. 97.6(6) that the wildlife must not be returned or disposed of until the later of the following: (a) 30 days after the order under subsection (4); (

b) if the order under subsection (4) is appealed, 30 days after the decision on the appeal has been given. ___________________________________ S.R. Harrison Provincial Court Judge