R. v. Chalupiak, 2018 BCPC 82

Citation: R. v. Chalupiak 2018 BCPC 82 Date: 20180314 File No: 16111-1 Registry: Powell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. MARTIN ALLAN CHALUPIAK ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE ARTHUR-LEUNG Counsel for the Crown: J. Blackman Counsel for the Accused: J. Garrett-Rempel Place of Hearing: Powell River , B.C. Date of Hearing: December 14, 2017 Date of Judgment: March 14, 2018

[ 1 ] Martin Allan Chalupiak has entered a plea of guilty to Count 1 of this Information, wherein on or about the 4th day of September, 2016, at or near Powell River, in the Province of British Columbia, did kill wildlife, namely a grizzly bear, at a time not within open season, contrary to s. 26(1)(

c) of the Wildlife Act . [ 2 ] Briefly the facts are such that on September 6, 2016, Mr. Chalupiak emailed the conservation office inquiring about the removing of yellow tags bearing Numbers 852 and 868 on a bear that he had killed in the Fiddlehead Farm area at or near Powell River, British Columbia. The officer inquired and determined that the bear was a female grizzly that conservation officers had relocated from Powell River to Humphrey Channel on September 9, 2010. Mr. Chalupiak met the conservation officer, who obtained the two tags and the licence. [ 3 ] The female grizzly had been killed by Mr.

Chalupiak with a bow and arrow. [ 4 ] The officer was familiar with this particular female grizzly and her relocation in 2010. The officer asked of Mr. Chalupiak why he had killed the female grizzly, and he told the officer that he thought that it was a black bear. The officer Chartered and warned Mr. Chalupiak. Mr. Chalupiak took the officer to the site to show him the remaining four paws and head. Such photos are Exhibit 1 in these proceedings. [ 5 ] The statement furnished by Mr.

Chalupiak disclosed that he was hunting with his nephew and that they observed a bear by the apple tree, that he observed the bear for several minutes and determined it to be a black bear so he killed the bear up with a bow and arrow. He returned the next day to field dress the bear and the meat had turned. [ 6 ] He stated that he did not see the ear tags when he killed the bear from approximately 20 yards away, and confirmed that he had observed this bear for 15 minutes. This bear was killed in close range. [ 7 ] The mitigating factors before me are such that Mr.

Chalupiak did not deceive the officer, and was open and completely cooperative.

He has no criminal record and he has entered a guilty plea. [ 8 ] The aggravating factors are such that he was hunting in a designated management area which requires a heightened due diligence because both species are in that area; that this designated management area contains 116 grizzly and therefore the loss of a female who could have bred offspring is a significant loss to this area; and that it was not the season for killing grizzly bear. [ 9 ] Exhibit 1 in these proceedings is a series of exhibited photographs, including the site, the head and four paws of the deceased female grizzly, carcass and the yellow tags. [ 10 ] Exhibit 2 in these proceedings is a copy of the 2016 to 2018 Hunting and Trapping Synopsis from July 1, 2016, to June 30, 2016. [ 11 ] At Tab 2 of the Crown's Book of Authorities is a letter dated March 1, 2017, from the Ministry of the Environment, Large Carnivore Specialist, Tony Hamilton, wherein he provided a report on the killing of this particular female grizzly at Fiddlehead Farm.

Defence counsel took no objection to the report, and the qualifications of Mr. Hamilton, which states: The killing of this animal may well have precluded that success, at least for the interim. Recolonization is a slow process for grizzly bears and this mortality has set that recolonization back significantly. (On page 1) [ 12 ] Page 1 continues: The current population estimate for the Toba Butte GBPU is 116 grizzly bears. [ 13 ] It continues on page 1: The potential future reproductive output of this bear, with only a few opportunities over her remaining lifetime, may have been summarily cut off.

Adult female survivorship has been shown to be the utmost demographic parameter in any modelling of bear population status and trajectory. [ 14 ] It continues on page 1: As a consequence, our provincial and regional conservation and management programs always put adult female first.

We seek to protect adult females' seasonally important habits, and we try to manage motorized access to ensure adult females have secure or core security area within their home ranges . [ 15 ] It continues on page 2: The loss of this female is further lamentable because of the previous effort to save her from destruction, and its apparent success.

Knowing that she had survived against odds since her deliberate translocation in 2010, only to have her fate sealed in a case of mistaken identity, is extremely disappointing. [ 16 ] It continues on page 2: Evidence from elsewhere suggests that having survived this long since her translocation is a strong indicator that she would have, as hoped, entered the local breeding population and had cubs of her own. That hope is now gone. [ 17 ] It continues on page 2:

Killing a reproductive-aged female at the edge of its distribution is significant enough. To take out a bear that we had hoped for and putconsiderable effort into capturing and translocating because of the local conservation objectives is even more so. [18] And finally, on page 2: The guide outfitter sector typically charges non-resident hunters between $20,000 and $25,000 per bear. The extensive and growingcoastal grizzly viewing sector regularly charges their clients up to $400 per day simply to see a grizzly bear such as this one. [19] Attached to such report is the curriculum vitae of Mr.

Hamilton that includes a B.Sc. from UBC in 1978, majoring in animalscience. He is a registered professional biologist. He has been employed since May 2007 with the Ministry of the Environment as alarge carnivore specialist, and before such, has also been employed as a large carnivore research biologist. His curriculum vitae includesa number of publications to which he has authored. [20] A review of the case law notes that the foundational case in matters such as this is that of HMTQ v.

Shamrock Chemicals Ltd.and Samuel John Shirley, which is a February 1989 decision of the Ontario Provincial Offences Court of the Honourable Judge Phillips. [21] In the Shamrock decision, the court articulated sentencing principles that are still to be considered today and in particular, onpage 3, lines 19 to 29, wherein Judge Phillips stated: The true measure of the effectiveness of prosecutions for violation of environmental legislation, is not in laying charges or obtaining aconviction but in the result of the conviction.

The ultimate goals are to stop the offending behaviour, to clean up, mitigate or repair anydamage that has been done to the environment, and to prevent a recurrence of the offence. In addition to having the effect of "specific" deterrence, the prosecution should also deter others from engaging in similar behaviour. Prosecutions also reinforce societal values. [22] On page 4, lines 8 through 15, the court continued: . . . the sentence is the most visible result of prosecution, the outcome by which the general public - rightly or wrongly - judges thesuccess of a prosecution.

Therefore, the outcome of the sentencing process is an important determinant of whether the public has respectfor the legal system.

Justice cannot be said or be seen to have been done until the offender has received an appropriate and effectivesentence. [23] The court continued on page 4 at line 29, and stated: Each actor must bear his share of the responsibility for any ultimate harm, if there is to be an effective deterrent to an eventualdestruction which will harm human interests. [24] Of particular note, in addressing sentencing in environmental and conservation matters such as this, on pages 5 and 6, the courtspecifically addressed the importance of deterrence in stating: In the analogous areas of trade offences and tax evasion, deterrence is the major sentencing objective.

The classic statement with respectto deterrence, repeated in a number of subsequent cases, is that "the fine must not be a licence fee, something capable of being regardedas a probable cost of or necessary risk in doing business in the manner in question". The basic rule in environmental cases, as in other cases, is that "without being harsh, the fine must be substantial enough to warn othersthat the offence will not be tolerated.

It must not appear to be a mere licence fee for illegal activity". [25] In the Shamrock decision, the court articulated the relevant and specific factors that must be considered and applied inenvironmental matters. [26] First, the court must consider the extent of both the actual and potential damage caused by the action, noting on page 6: Environmental cases put the courts in a difficult position of having to impose a sentence in the context of uncertainty about the degree ofrisk inherent in the offence or in the amount of damage caused, since any damage may be latent or cumulative. [27] In applying that to the case before me, that damage, both latent and cumulative, is the loss of a reproductive grizzly bear. [28] Secondly, the harm to the common good must be considered in the imposition of the sentence, meaning that the court mustbalance the accused's apportionment for responsibility for the offence and the impact of such offence upon the good. [29] Thirdly, the offence has imposed costs upon the public and addressing that cost.

While difficult to quantify, public offencessuch as this are preventative and in accordance with the Shamrock decision, "no actual damage should be necessary to attract substantialpenalties", as noted on page 7, line 25. [30] The Shamrock decision remains the benchmark case to this day, and has been considered by judicial colleagues and rigorouslyapplied. [31] In the British Columbia Supreme Court decision of R. v. Abbott, 2005 BCSC 1523, the Honourable Madam Justice Gropperrelied upon the Shamrock decision and cited the case of R. v. Gulf Canada Corporation, (1987) (NWT TC), 4 F.P.R.237 (N.W.T. Terr.

Crt.) and noted on pages 240 and 241, and I quote: ... there is no harm to the environment, but there is harm inflicted upon the process of environmental protection. In a narrow way, it is not the environment that is compromised in this kind of case. The plans, process, system and future are the victims

of permit infractions. Legislative goals and objectives are undermined; disrespect for the law is engendered. These considerations, in turn, direct us to a particular sentencing goal, which must be to uphold the law itself over and above otherconsiderations. [32] Madam Justice Gropper applied the sentencing principles in the Shamrock decision that I have articulated, that being thepotential and actual damage, the harm to the common good, any licensing or regulatory regime in place, and the protection of the publicand that of the environment. [33] In the decision of R. v.

Yunhee (Sarah) Kim, 2016 BCPC 113 , 2016 BCPC 0113, the Honourable Judge Woodsreviewed the publication entitled "Sentencing in Environmental Cases: A study paper produced by the Law Reform Commission ofCanada" which noted: The true measure of the effectiveness of prosecutions for violation of environmental legislation is not in laying criminal charges orobtaining a conviction, but in the result of the conviction. The ultimate goals are to be stop the offending behaviour and to prevent arecurrence of the offence.

In addition to having the effect of specific deterrence, the prosecution should also deter others from engaging in similar behaviour. Prosecutions also reinforce societal values. The sentences imposed play a vital role in achieving those goals. Each actor must bear hisshare of the responsibility for any ultimate harm if there is to be an effective deterrent to eventual destruction which will harm humaninterests. In environmental cases, the effect of the principle that the protection of the society is paramount is to underline the serious nature of theoffence and to prevent its trivialization.

It supports the use of strong deterrence and punishments even in the absence of serious harm toindividuals or the environment. [34] The standards impose the threshold, the purposes and objectives in an environmental matter is vastly different from thatcontained in a Criminal Code offence, and those distinctions must be identified and considered when crafting a sentence in anenvironmental offence. [35] In R. v. Lamouche, [1998] A.J.

No. 1437, namely on page 2, the court succinctly articulated that distinction, and I quote: While both the circumstances of the offender and of the offence itself must be weighed in choosing an appropriate sanction, judges donot always make it clear [and should] that the objectives of the legislation being enforced are an essential part of the framework withinwhich that choice must be made.

In that regard courts have long recognized that the provincial Wildlife Act and federal statutes like theNational Parks Act as one of their objectives, the management and ultimately the preservation of the wildlife resource. [36] Defence counsel in the matter before me in his submissions to the court submitted that as the grizzly is dead, it is difficult toaffix a value to that bear, and similarly, provided as submission to this court, that some people affix a higher value to a bear for reasonsonly such that it is a white bear, for example, but referred to it as a Kermode or Spirit bear. [37] I found such submissions provided no guidance to this court, and was not cognizant of the purpose and intent of theenvironmental legislation in place, nor of indigenous peoples and environmentalists, and of the people of this province. [38] A female grizzly bear of reproductive age most certainly has a value.

The report written by Mr. Hamilton marked at Tab 2 ofExhibit 1, very clearly articulates the value of this female grizzly, that being the loss of a grizzly bear, a female of reproductive age, abear where there are so few physically observed, and the tourism and environmental value of the bear, both in current and prospectiveterms.

That report which is exhibited was not challenged, nor any report filed to refute such. [39] The matter of the standard of reasonable care is applicable with such an offence and that was addressed in the decision of R. v.Gonder, (1981) (YK TC), 62 C.C.C. (2d) 326 (YTC) wherein the court addressed reasonable care and the level of duediligence which was required. On page 4, paragraph 2, the court held: The primary objective of public welfare offences is to ensure the person in the best position to care will act to ensure public standards ofsafety are upheld.

This is not substantially different than the underlying principle and policy of civil negligence to shift responsibility. . . [40] What this means is that the accused person -- in this case Mr. Chalupiak -- was in the best position to ensure that no harm cameto the grizzly bear.

He failed to meet those public standards of safety and to ensure that a reasonable standard of care, which includedconsideration of the gravity of the potential harm, including the damage to the environment, the alternatives, if any available, and thelikelihood of harm (Gonder, page 5). [41] Crown counsel also seeks to rely upon a number of Provincial Court decisions, many of which were made within BritishColumbia communities where environmental offences have a significant impact upon those smaller communities. [42] In R. v.

Eyben, 2013 BCPC 300 , 2013 BCPC 0300, a 2013 decision of the Honourable Judge Challenger in thePemberton registry, the offence occurred in an area of that community where the taking of a grizzly bear is prohibited at all times. Mr.Eyben shot and killed a grizzly wherein it was after the second shot that he realized that he had killed the grizzly, a consideration inwhich Judge Challenger duly noted was evident that he was not well enough informed and knowledgeable to properly identify thisspecies of bear. [43] This too is of consideration before me with Mr.

Chalupiak who observed the bear for some 10 to 15 minutes before killing itwith a bow and arrow.

[44] As noted in the Eyben decision and in the other matters and materials filed before me by Crown counsel, grizzly bears have adistinctive square head, a distinctive hump immediately behind their head, and long claws, all of which Mr. Chalupiak could have andshould have observed in the time that he watched the bear. [45] The Fiddlehead Farm area is of significance to the reintroduction program in British Columbia and this female was a valuableconsideration for reproductive purposes. In the decision of R. v. Bergen, Quesnel Registry, File 21206-1, His Honour Judge Blake, for asimilar offence, sentenced Mr.

Bergen. In the Bergen decision, which was also cited by Her Honour Judge Challenger at page 2 andparagraphs 7 and 8 of the Bergen decision, the court held the following, cited R. v. Mota: To survive in any abundance Canada's wildlife must be accorded the priority of a treasured national heritage - which it is. It must beprotected and, within the resources of the law, defended. [46] As often noted, the environment is a precious resource that belongs to each and every one of us, and its preservation,maintenance and respect for it is the purpose of the legislation as the actions such as Mr.

Chalupiak's directly impact our wildlife, theenvironment and persons as a whole. [47] In the decision of R. v. Dalton, (2002), the Honourable Judge Blaskovits from the Dawson Creek registry imposed a fine of$6,500 and I note this is an older decision from 2002, in which at that time the court had information that the grizzly at that time wasvalued to be somewhere between $5,000 to $7,000. [48] I have also finally considered the decision of R. v.

Stoner, a 2016 decision of the Honourable Judge Hoy from the Bella Bellaregistry, wherein the court noted that this offence is one wherein the sentencing principles of both personal and general deterrence mustbe addressed, and that if one makes the decision to hunt, one must do so in a responsible manner and in accordance with the legislation. [49] Case law provided to me for consideration by defence counsel has provided me little guidance. The three cases furnished areall involving motor vehicle offences. [50] In R. v.

Cameron, 2004 BCPC 500 defence counsel before me is seeking to draw to my attention that, as a regulatoryoffence, it "carries with it less moral blameworthiness and less of a social stigma", (paragraph 9). So too I have reviewed R. v. Lineker,2013 BCPC 53 , 2013 BCPC 053 and R. v. Chand, 2009 BCPC 242 , 2009 BCPC 0242. [51] Defence counsel in his submissions told the court that it is difficult to ascertain the value of the bear, and that as the bear isdead, in reality it cannot be replaced.

No one is seeking the replacement of the bear. [52] So too defence counsel submitted that ascertaining any value to the loss of this bear is difficult, and submitted to the court that,in his words "nativists" place a higher value on some animals than others, and that there is no logical reason for an example that he gavefor a white bear to essentially have more value affixed to it simply by calling it a Kermode or Spirit bear. I could draw no value orguidance from defence counsel's submissions. [53] There are mitigating factors for consideration in addressing sentencing and those principles before me. Mr.

Chalupiak did notdeceive the conservation officer. He has no record, and he has submitted an early guilty plea. [54] Aggravating factors are such that he was hunting in a specific designated management area that requires a heightened duediligence in this 110,000 square mile area where 116 identified grizzly are located, and this was an important female of breeding age. This was not the season for hunting grizzly bears. This bear was shot at close range and Mr.

Chalupiak was in an open area withsufficient time to observe and properly identify the bear; however, failed significantly in doing so, including not identifying thedistinctive hump and the bright ear tags. [55] Defence counsel respectfully submits that Mr. Chalupiak is 29 years of age, has his red seal ticket in small engine repair.

Hehas been hunting for 16 years and I was perplexed by the submission that his client actually does know the difference between a grizzlybear and a black bear which in fact would have not brought us here with this matter had that been accurate. [56] So too, I have considered and reviewed the 2016 to 2018 Hunting and Trapping Regulations Synopsis that it was in place, asissued by the Government of British Columbia, and to which Mr.

Chalupiak would have and should have been completely versed. [57] Most notably, in the most simplistic and easy to comprehend diagrams, are an image of a grizzly bear and an image of a blackbear, with both depictions clearly pointing out to any hunter the extremely unique physical traits to each animal. It cautions hunters andnotes, "colour and size can be misleading". Thus, there is limited weight that I can put on defence counsel's submission that the bear wasin an orchard eating apples when Mr.

Chalupiak failed to know the difference between the two bears, that he has been cautioned aboutthe colour and size, and that he spent some 10 to 15 minutes observing the bear, and still failed to recognize it as being a grizzly bear,and failed to observe the distinctive tag markings. [58] The purpose of the legislation and regulations is abundantly clear. Such is in place for consistently the same reason, regardlessof where one resides in this province. [59] Defence counsel respectfully submits that the maximum allowable fine provisions are, in his words, "astoundingly high". Idisagree.

The legislation is in place for a reason. That reason is for the protection and maintenance of the environment for all BritishColombians, and for the environment and animals themselves. Preservation and protection of wildlife is in place and it has been in placefor a long period of time; thus, it is of importance that those participating and engaging in hunting activities must self-regulate and self-report and follow the law.

No one is above the law, and in crafting a sentence in this matter, I am required to make clear that the purposeand objectives of the legislation are enforced within the framework provided, that being the preservation and maintenance of wildlife. [60] That reliance upon self-regulation thus imposes the requirement that, when sentencing, general deterrence plays a significantrole in the crafting of each sentence for the offender.

[ 61 ] Crown counsel seeks to have the court impose a fine in the confines of $8,000 to $10,000, to be followed by a 12-month probation order, whereas defence counsel initially submitted for consideration that no fine be imposed; however, then asked for a fine of $1,000 to $2,000 be levied, and took no issue with the probation order. [ 62 ] The loss of a female grizzly bear that had been successfully relocated in 2010 and killed while of reproductive age is concerning. So too that Mr.

Chalupiak spent considerable time observing the bear eat apples in an orchard, and despite that time, failed to properly identify the bear. [ 63 ] The loss is a loss that must be addressed. It is a loss to the reproductive capabilities of other grizzly in that area. It is a loss to the animals and to the environment as a whole, and its preservation and maintenance. [ 64 ] I will impose a sentence as follows. I will impose a fine in the amount of $8,000.

Pursuant to s. 84.1(1)(e)(2) of the Wildlife Act , Martin Allan Chalupiak shall pay the sum of $8,000 to the Habitat Conservation Trust Foundation, to be used entirely for the area within that known as Fiddlehead Farm, in the Powell River area of British Columbia for conservation and maintenance purposes. [ 65 ] This court further orders that the $8,000 ordered to be paid to the Habitat Conservation Trust Foundation pursuant to s. 84.1(1) (e)(ii) of the Wildlife Act be delivered to the clerk of the court in Powell River, British Columbia, within six months of the date of this order, to be forwarded to the Habitat Conservation Trust Foundation located at Unit 107, 19 Dallas Road, Victoria, British Columbia. [ 66 ] Mr.

Chalupiak will also be bound by a 12-month probation order, with the following terms and conditions. [ 67 ] Keep the peace and be of good behaviour.

Appear before this court as and when required to do so. [ 68 ] You are required to report in person to your probation officer no later than 12 noon on Friday, March 16, 2018, in Powell River, British Columbia, and thereafter, as and when directed to do so, in order to ensure that the balance of this probation order has been complied with. [ 69 ] At your first reporting, you are to provide your probation officer with your residential address and telephone number and do not change that without the prior written consent of your probation officer. [ 70 ] Within the first eight months of this order, you must attend, complete and provide proof to the satisfaction of your probation officer that you have completed the CORE program, that being the Conservation and Outdoor Recreation Education Program, and you are not to engage nor participate in any hunting located in the Province of British Columbia until both the fine has been paid in full and you have completed the CORE program. [ 71 ] Those are my reasons. [ 72 ] MR.

BLACKMAN: Thank you very much, Your Honour. Just more of a housekeeping matter. The creative sentencing provisions lay out that, in addition to any other punishment imposed, and then Your Honour imposed the $8,000 monetary payment, could I suggest just to comply with that condition, that there might be a dollar fine payable today as a punishment, and then your Order goes after that? I can direct Your Honour to the actual position if you like. [ 73 ] THE COURT: How much are you looking to convince me that be paid today? [ 74 ] MR.

BLACKMAN: It doesn't have to be paid -- I am just thinking that if a dollar -- I'm just trying to satisfy the triggering mechanism. So if the dollar could be paid in six months too, I suppose. But -- [ 75 ] THE COURT: Submissions? [ 76 ] MR. GARRETT-REMPEL: It seems reasonable. It sounds like my friend is trying not to characterize the $8,000 as a fine, rather a donation to the Habitat Fund. [ 77 ] MR.

BLACKMAN: Well, it is important to impose monetary penalty, and just to assist the court, I will just -- the 84.1(1) says: If a person is convicted of an offence under this Act, in addition to any punishment imposed, the court may, having regard to the nature of the offence ... make an order [under the section] [ 78 ] So that's all -- I want him to comply with that as (1). [ 79 ] THE COURT: So you are looking for one dollar? [ 80 ] MR.

BLACKMAN: A one-dollar fine would do it, or if Your Honour thinks something a little higher is more appropriate, but - - because there is no punishment imposed -- yeah, the creative sentencing provision requires in addition to any other punishment imposed. [ 81 ] THE COURT: One dollar fine will be levied, payable forthwith. [ 82 ] MR. BLACKMAN: Thank you. [ 83 ] MR. GARRETT-REMPEL: Thank you. [REASONS FOR SENTENCE CONCLUDED]