R. v. Lind, 2016 ONCJ 471

ONTARIO COURT OF JUSTICE DATE: 2016·03·21 CITATION: R. v. Lind , 2016 ONCJ 471 BETWEEN: HER MAJESTY THE QUEEN — AND — TREVOR LIND Before Justice of the Peace D.J.

MACKINNON Heard on JANUARY 29, 2016 Reasons for Judgment released on MARCH 21, 2016 Paul Gonsalves ............................................................................. counsel for the prosecution David Dubinsky ........................................................... counsel for the defendant Trevor Lind JUSTICE OF THE PEACE MACKINNON: [ 1 ] This trial is about a conversation between the Defendant Trevor Lind, and Conservation Officer Grigio which occurred on December 17, 2014 at the Lind residence in Thunder Bay.

The Crown has alleged that the Defendant knowingly gave a false statement to the Conservation Officer, contrary to s.96 (

a) of the Fish and Wildlife Conservation Act . [ 2 ] This is a mens rea offence and the Crown is required to prove the offence beyond a reasonable doubt. Evidence of Officer Grigio [ 3 ] Officer Grigio testified that he became aware of an investigation being carried out by the Atikokan Ministry of Natural Resources and Forestry (MNRF) office about a month before his visit to Mr. Lind’s residence. [ 4 ] The allegation was that a party of hunters had killed a second bull moose unlawfully during their hunt on October 11, 2014, which was opening weekend of the hunting season. The investigating officer, C.O.

Burroughs, had reviewed the previous party hunting in the area and identified a particular group of hunters; Tyler Barrett, Rick Cain, Louis Barrett, Duane Lind, Kevin Cain, and the Defendant, Trevor Lind. All of the hunters lived in the Atikokan area except the Defendant. Officer Grigio was asked to attend and obtain a statement about the events from Trevor Lind. [ 5 ] The notes made by Officer Grigio were qualified and he was allowed to refer to them during the course of his evidence to refresh his memory. [ 6 ] Officer Grigio attended at the Thunder Bay Police Service in order to determine the work

schedule of the Defendant, who is employed there. [ 7 ] On December 17, 2014 at 4:22 p.m., Officer Grigio was briefed by teleconference about the case, along with other conservation officers, and was given an Operational Plan regarding the interviews to be conducted simultaneously of all of the hunters in the party. He acknowledged in his testimony that he was unfamiliar with the locations of the events and the names of the individuals involved as he had not worked in the Atikokan area. The briefing took less than half an hour. [ 8 ] Officer Grigio agreed on cross examination that the purpose of the simultaneous interviews was to ensure that the hunters

did not communicate with or alert others in the party about the investigation, or tailor their evidence as a result. [ 9 ] Officer Grigio was waiting in his vehicle at a dog park a few minutes from the Lind house. At 6:20 p.m, he was given the go- ahead. He went to the Lind home, parked his vehicle, exited and went to the door. He knocked and Trevor Lind opened the door. Officer Grigio was dressed in his uniform, he identified himself and was invited into the front lobby. [ 10 ] Officer Grigio obtained the Defendant’s name, address and phone number.

He testified that he asked Trevor Lind to tell him about his hunting the past fall, particularly on October 11, 2014. [ 11 ] According to the officer, Trevor Lind recounted that he was party hunting in the Atikokan area. He and his father were hunting on McIntosh Road and his father shot a bull moose. The tag holder for the moose was Tyler Barrett. They gutted the bull moose and transported the moose to Atikokan, and then returned to the hunting camp. [ 12 ] Officer Grigio testified that he asked if Lind knew of any moose shot by Kevin Cain or anyone else in the party.

He testified that Lind answered “No.”, that it was only the bull moose and a cow moose his father got later in the second week. Officer Grigio asked again how many bull moose were killed in the opening week. He says Lind again said, “One.”. He says that he asked again if Lind was aware of a bull moose killed by Kevin Cain, and that Lind said that he was not aware. Lind provided him with the details of his father’s name and phone number. [ 13 ] At 6:28 p.m. Grigio returned to his vehicle.

He learned from Officer Burroughs by telephone that it was confirmed that a second moose had been shot by Kevin Cain on opening morning. He called Lind back at 6:34 hours to advise him that he was not accurate when speaking to the officer and that a second moose had been shot and he was involved. He left Lind with an open invitation to call him if he wished to discuss the matter further. [ 14 ] In regard to his notes, Officer Grigio testified that he made them at the time of the event or shortly thereafter. They were not entered as evidence. His notes were made inside the house and in his vehicle in the driveway.

He did not consider recording the interview or having the Defendant sign the notes he made in his notebook, acknowledging the information given. They had some “chitchat” not related to this matter. He could not recall the Defendant saying that he had some difficulty being put in the middle of this matter as it involved his father and his father’s friends, but could not deny it might have been said. [ 15 ] On December 18, 2014, the officer attended at work and saw that he had messages from the Defendant.

He called him back and the Defendant attended at the MNRF office on James Street, was cautioned and gave a full statement which was recorded. [ 16 ] The statement was played for the court. In it Mr. Lind acknowledged that a second bull moose had been shot by Kevin Cain. The statement indicates that after the second shooting was known, the Defendant indicated that he told the others that he did not want to have anything to do with this kill, and he did not agree with their attempts to hide it.

In this interview, the officer does not confront the Defendant about his statement the day before or ask him if he was withdrawing or correcting it. [ 17 ] On cross-examination, Officer Grigio acknowledged that he knew when he attended at the Lind residence, that the Defendant was a police officer, and that he was a suspect in an illegal moose hunt. The conversation at the Lind residence took about 6 minutes. [ 18 ] During his evidence the officer was asked by defence counsel if he had asked the Defendant if “Rick Cain” had shot another bull moose.

He corrected the lawyer and said that he had asked, “if Rick Cain or anyone else in his hunting party ” had shot another bull moose. A second time, the lawyer asked him if it had been “Rick Cain” and he answered yes that he asked about him. The lawyer asked him to agree that we now know that it was Kevin Cain who shot the second moose. The officer said, “No” and then referred to his notes and corrected himself indicating that his notes clearly said, “Kevin”. The Evidence of Trevor Lind [ 19 ] The Defendant testified that he lived in his home with his wife and two young children.

He was a probationary police officer. He had been a hunter since his youth but did not hunt for many years. [ 20 ] The Defendant was unaware of the investigation until the arrival of the conservation officer at his door. He did not know Officer Grigio but invited him in. [ 21 ] In the conversation recounted by Mr. Lind, the officer started by asking him his name and address and wrote those in his notebook. He stated that the notebook was then put away by the officer. The questions were about the hunting from the fall before. Mr.

Lind told the officer about a calf taken in mid-November, and then the cow and bull taken by his father. The officer suggested that another bull moose had been shot. Mr. Lind testified that Officer Grigio asked him at least three times if Rick Cain had shot another bull moose. The defendant said that he told the officer, “No.”. Officer Grigio asked him who lived on Turtle Lake, and he said it was Rick Cain.

He also asked who lived on Zuke Road. [ 22 ] He recounts that Officer Grigio told him that he knew he was a probationary officer with the Thunder Bay Police Service and that it would be in his best interests to tell the truth to MNRF. He asked Mr. Lind who killed a second moose. Mr. Lind testified that his answer was for the officer to ask the other members of the hunting party, and that he was being put in a difficult situation as the other hunters were family or friends of his father. [ 23 ] The next day the Defendant went to the MNRF and gave them a full statement.

He apologized to Officer Grigio before giving the statement. He stated that the apology was because he knew that Officer Grigio was put in a difficult position having to interview another officer of the law and that he could not be forthcoming to him about the hunt on the day before. Mr. Lind confirmed the information about the fall hunt given in his formal statement with the MNRF.

[ 24 ] On cross-examination, Mr. Lind said that the conversation at his house could have been 8 to 10 minutes in length. He was familiar with taking notes in his own job and had, on occasion, had witnesses sign his notes in his notebook. [ 25 ] Mr. Lind agreed that he was against covering up the shooting of the second moose, “in his position as a police officer”.

The Crown suggested that it was his position that motivated him not to cover up the second moose kill, rather than his good character; a suggestion denied by the Defendant. [ 26 ] The Crown questioned the Defendant in regard to his testimony that he did not help with the gutting and cutting up of the second moose. The Defendant admitted that the bull moose was some way into the bush, and that, in comparison to the other hunters, he was young and physically strong. He denied that he helped take it out of the bush and stated that there was an Argo available and it had a winch, as did one of the trucks.

He agreed, however, that his recorded statement said that “we” all assisted in gutting the moose in the bush. [ 27 ] The Defendant testified that on this occasion with this moose he did not do any of the cutting and did not have a knife in his hands. He admitted that in the recorded statement he confirms that he was usually responsible for doing all of the scrap work in the butchering. [ 28 ] The Defendant was unable to explain why the notes of the officer contained the word “Kevin” as the Defendant testified that he was asked about “Rick” Cain.

Analysis [ 29 ] The evidence is not disputed that on December 17 th , 2014, Trevor Lind knew that Kevin Cain shot a second bull moose on October 11, 2014 while their hunting party was in the Atikokan area. [ 30 ] If Trevor Lind told Officer Grigio that Kevin Cain or anyone in the hunting party did not kill a second bull moose, such a statement was false.

If this false statement was proven beyond a reasonable doubt, I am satisfied that such statement was made knowingly. [ 31 ] The court has to determine the questions asked of the Defendant and the answers given to such questions during an interview in the lobby of his home on December 17, 2014. [ 32 ] The position of the Crown is that Conservation Officer Grigio asked Trevor Lind directly if Kevin Cain or anyone else in the party had shot a second bull moose on that weekend, that the Defendant answered “No.” The Crown also contends that when asked if one or two bull moose had been shot on the opening weekend, the Defendant replied, “One.” [ 33 ] The Crown takes the position that Trevor Lind’s evidence is untrustworthy in light of his questionable evidence that he did not help gut the bull moose in the bush, and did not participate in any part of the cutting of the carcass. [ 34 ] The Defence suggests that the Conservation Officer was confused about the names and locations involved in the matter, had only been briefed just before the interview, and that Trevor Lind’s account of the conversation is more likely.

The Defendant contends that the questions asked by the officer involved “Rick” Cain and not “Kevin” Cain. [ 35 ] There is little corroborating evidence related to the interview. For example, there was no recording of the interview, and the notes were not reviewed with or signed off by the Defendant. [ 36 ] The notes were not entered as evidence to support what was said. The officer admits that some of the notes were made in the vehicle in the driveway.

This has significance in regard to whether the word ‘Kevin” was recorded at the part of the notes dealing with the Lind interview or if later when the conversation with Officer Burroughs about Kevin Cain occurred in the vehicle. The court cannot guess without seeing the notes. Decision [ 37 ] I recognize that there could be motivation for the Defendant to give a false statement about Kevin Cain’s kill – whether to protect himself or other family members and friends. However, that could be the same with any defendant accused of this offence. [ 38 ] I am concerned about some aspects of this case.

The Interview Method [ 39 ] This is not a situation where a conservation officer in the field comes upon a group of hunters and asks them about a kill, and they lie. Such a circumstance is unplanned, immediate and without the benefit of much investigation. The party members are all together and could collude. Evidence could be destroyed. [ 40 ] The interview in this case was months after the event, was planned and was part of an ongoing investigation. I find the circumstances of the interview are unsettling. [ 41 ] Why conduct this brief casual interview at the Defendant’s home?

The reason given for the timing and method of this interview, that is to keep the hunters from tailoring their evidence, is, in my view, unsubstantiated. [ 42 ] On December 17, 2014, the conservation officer says that he knew that Trevor Lind was suspected of being a member of a hunting party in which Kevin Cain killed a second bull moose illegally. If Officer Grigio had waited in his vehicle for a few minutes until the call came from Officer Burroughs confirming that other hunters in the party said Kevin Cain had killed the second moose and Lind was involved, he could have confronted Mr.

Lind with this solid evidence. Of course, Mr. Lind’s position as a suspect would have also

been solidified. [ 43 ] The reason is not clear why a formal statement was not requested that evening. The rights that the officer carefully gave to the Defendant the next day prior to taking his statement, and the effort to record the statement, should have been available to the Defendant on December 17, 2014. He should have been invited to give a formal statement that evening by attending the MNRF office. [ 44 ] I do not accept that the method of interview was necessary to preserve evidence. Obviously, the evidence obtained from other party hunters could have formed the basis for charges against Mr.

Lind, particularly as they apparently said that he was involved. Party hunters accept a level of joint responsibility for wrongful hunting. [ 45 ] The mention by Officer Grigio that he knew that the Defendant’s job was as a “probationary” police officer, a position which is more tenuous, has a threatening element to it, whether the officer intended it or not.

Haste [ 46 ] The interview was unexpected for the Defendant, at night, at his home and took about 6 minutes. [ 47 ] During that 6 minutes, Officer Grigio went from his vehicle to the house, knocked on the door, entered the home, introduced himself and the reason for his visit, took down Trevor Lind’s name and address and particulars, took down Lind’s father’s particulars, heard about the hunting trip in mid-November, the hunting trip on the opening weekend and the trip on the week after opening, asked about the names of people and where they lived, had some chitchat about other matters, left the home and returned to his vehicle.

This leaves very little time for the statement to be made and creates the element of haste in the questioning and answering. Confusion [ 48 ] Lastly, Officer Grigio in his testimony on the stand, when questioned by defence counsel, confirmed twice that he asked the Defendant about Rick Cain. He also denied that it was Kevin Cain who was the shooter, but then corrected himself. If this same confusion was evident on the night in question, it lends support to the contention of the Defendant that he was asked about Rick Cain rather than Kevin Cain.

Conclusion [ 49 ] I have no doubt that Officer Grigio was doing his job and testified at this trial as to what he could recall of the conversation. [ 50 ] The officer’s confusion on the stand and the evidence of the Defendant raises a doubt in my mind as to whether the question the Defendant was asked was in relation to “Kevin” or “Rick” Cain. [ 51 ] The Defendant’s testimony that he answered the question about other hunters in the party shooting a bull moose by directing the officer to discuss it with them, seems plausible.

It is consistent with his uncontradicted evidence that he told the other hunters that he did not want to be involved in regard to the second bull moose. [ 52 ] The Crown is required to prove this charge beyond a reasonable doubt. As the evidence raises a reasonable doubt in my mind that the Defendant was asked the questions alleged by the Crown, or answered in the way alleged by the Crown, there will be a finding of not guilty. Released: March 21, 2016 Signed: “Justice of the Peace D.J. MacKinnon”