R. v. Jacobs Date:, 2015 BCPC 273

Citation: R. v. Jacobs Date: 20150915 2015 BCPC 0273 File No: 26160-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ALLAN W. JACOBS LISA ELLIOT ORAL REASONS FOR SENTENCE RE ALLAN W. JACOBS OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: J. Blackman Appearing on their own behalf: Allan Jacobs Place of Hearing: Nanaimo , B.C.

Date of Hearing: September 15, 2015 Date of Judgment: September 15, 2015 Introduction: [ 1 ] THE COURT (orally): Allan W Jacobs is before the court having been charged with an offence, that on or about the 17th day of September, 2013, at or near Clisbako Forest Service Road, near Quesnel, in the Province of British Columbia, did unlawfully hunt wildlife, namely a bull moose, while not being a holder of a limited entry hunting authorization that is required by regulation. That is an offence contrary to s. 11(1) (

b) of the Wildlife Act , R.S.B.C. 1996, c. 488 (as amended). [ 2 ] Mr. Jacobs has entered a plea of guilty to that offence. He is before me to deal with sentencing. Circumstances of the Offence: [ 3 ] Crown has outlined the various circumstances with respect to this offence. No issue is taken by Mr. Jacobs with respect to those circumstances. I will briefly summarize the circumstances. [ 4 ] The allegation is that Mr.

Jacobs and a family member, namely his daughter-in-law, participated in a scheme to obtain what is referred to as a limited entry hunting authorization, otherwise referred to as an “LEH”, for the purposes of permitting him to hunt and kill a bull moose in the Quesnel area. [ 5 ] As I understand it, from both Crown's explanation, and from Mr. Jacobs's explanation, that this is a lottery system. Mr. Jacobs and his daughter-in-law applied at the same time. She was successful. He was unsuccessful. Accordingly, although she is apparently a moose hunter, she ended up with a licence, which she was prepared to permit Mr.

Jacobs to utilize for the purposes of his hunting trip in the fall of 2013. [ 6 ] The provisions of the LEH make it clear that it is not transferable and that it must be carried by the individual named while conducting the hunting. [ 7 ] Mr. Jacobs continued with his scheme by providing a certain amount of money to his daughter-in-law in order to obtain the hunting species tag in her name for the 2013-2014 hunting season. [ 8 ] Between September 8th and September 9th of 2013, he personally travelled from Vancouver Island up to the Quesnel area. There he met and was joined by an acquaintance.

According to the investigation that was conducted by the conservation officers, hat acquaintance was unaware of the scheme in which Mr. Jacobs was participating. [ 9 ] On the day in question of September 17th, 2013, they drove up the Clisbako Forest Service Road. It was during their drive up, of some 30 miles, that a bull moose presented itself on the road. Mr. Jacobs shot and killed the bull moose. At that time, he then took the required steps of physically cancelling the LEH licence by cutting it in the prescribed manner. [ 10 ] Mr.

Jacobs and his companion gutted and field-dressed the moose and left it overnight, however, as I understand it, they retrieved it the next day, hung the moose, skinned it and then, on September 19th, 2013, transported the moose to a local meat cutter for the purposes of having the moose butchered and, as I further understand it, to be shared between both Mr. Jacobs and his companion. [ 11 ] Around September 24th, 2013, Mr. Jacobs was continuing to hunt in the area. A conservation officer visited his campsite, at which time he was not present.

The conservation officer observed a set of moose antlers and moose hair, and drew the reasonable conclusion that a moose had been taken fairly recently. [ 12 ] The conservation officer accordingly returned at 4:00 p.m. that day to check with the occupants of the camp. At that point Mr. Jacobs reported to the conservation officer that his daughter-in-law had shot the moose. A check of the LEH indicated that it had been cancelled, and it was contended by Mr.

Jacobs that his daughter had cancelled the LEH in the appropriate manner, and then that she had departed from the camp to her residence on Vancouver Island. [ 13 ] It was also reported by Mr. Jacobs to the conservation officers that she had delivered the moose to the local meat cutter for the purposes of being butchered.

The conservation officers followed up with the meat cutter, who reported to them that two men, and not a female, had brought the moose in for the purposes of having it butchered and prepared. [ 14 ] The conservation officers followed up with the daughter-in-law and, on September 28th of 2013, she contended that she had been on site, had participated in the hunt, had shot the moose, and then had departed back to Vancouver Island. [ 15 ] On September 30th, 2013, in response to the request from the conservation officers about proof by way of receipts as to her travel and the timing of her travel, the accused Mr.

Jacobs phoned and indicated that his daughter-in-law had paid cash, and accordingly, did not have receipts for the travel in which she had previously indicated she had participated. [ 16 ] On October 26th, 2013, the daughter-in-law spoke with the local conservation officers, as I understand it, here in Nanaimo. At that point, she did not deny the questions and assertions being made by the conservation officers that she had not been present when the moose had been taken and, in fact, that somebody else had done that, utilizing her LEH. [ 17 ] On October 26th, 2013, Mr. Jacobs called.

He admitted that he had been the person responsible for shooting the moose, and that he did not want his daughter-in-law held responsible for his transgressions. [ 18 ] Accordingly, the conservation officers seized both halves of the moose that had been turned over to the local meat cutter in the

Quesnel area. Circumstances of the Accused: [ 19 ] Mr. Jacobs is a 69-year old resident of Nanaimo. He has been married for 38 years. He has four adult children. He has been retired for seven years from his former occupation as a plumber. [ 20 ] He states that he has participated in moose hunting for a period of some 40 years. He also indicated that he was sorry that he got his family involved in this scheme. He expressed some remorse for his participation in the deception in which not only he had participated, but also in which he had encouraged his daughter-in-law to participate.

Position of Crown on Sentencing: [ 21 ] Crown submits that the appropriate sentence in this matter would be a fine in the amount of $3,000, and a two-year provincial probation order, which would contain a provision prohibiting Mr.

Jacobs from hunting for a period of two years. [ 22 ] Crown recommends certain provisions should apply in addition to the mandatory provisions that are set out in s. 89.1 of the Offence Act of British Columbia. [ 23 ] Crown notes under s. 84 that the fines and penalties for offences under the Wildlife Act , (including offences under s. 11 of the Act , and in particular s. 11(1) (b), being this particular offence), are subject to ss.84 (5 (

a) of the Wildlife Act namely: that a person who commits an offence under the provisions of ss. 84 (1) (c), which includes the offence before me, is liable on a first conviction to a fine of not more than $50,000, or to a term of imprisonment not exceeding six months, or both. [ 24 ] Crown indicates that, in their view, the fine that is being suggested is appropriate for several reasons. First of all, Crown indicates that the sentence must fulfill the object of a general deterrence.

Second, Crown notes in particular that within the Province of British Columbia, there are a limited number of conservation officers who are charged with the responsibility of protecting the wildlife resources in a vast area.

Third that, given the limited resources available to them, and in particular the limited human resources available to them, that in many instances, including the case before the court, it is fortuitous when the conservation officers are able to detect people who are hunting contrary to the provisions of the Wildlife Act and specifically undermining the wildlife management and conservation goals and purposes of the LEH regime. [ 25 ] Accordingly, it is necessary to have a fine system, which reflects the importance of protecting the wildlife stock, since there may be instances where people go undetected in committing wildlife offences. [ 26 ] The Wildlife Act apparently contains a tiering of fines on the basis of three tiers.

This happens to be in the lower tier, although the amount provided by the legislature for fines indicates that a fine of $50,000 certainly demonstrates the seriousness to which the government, and also the residents of the Province of British Columbia, should take offences against the Wildlife Act . Position of the Accused with respect to Sentencing: [ 27 ] Mr. Jacobs does not take issue with what has been proposed in terms of the disposition of this matter. He does not have any prior criminal record.

He obviously believes that what is being proposed by the Crown may be what he describes as "a little harsh", but he does agree that appropriate sanctions need to be imposed upon him as a result of his conduct in this matter. Case Authorities relied upon by the Crown: [ 28 ] Crown has referred me to a 2003 decision of the Honourable Judge Doherty. That is in Campbell River, file number 29802-1, rendered on October 7th, 2003, in the matter of R. v. Brent Victor Fair . In that particular case, Mr. Fair had admitted the offence of hunting elk while not being a holder of a limited entry hunting authorization.

In that particular set of circumstances, Mr. Fair was in the presence of an individual who actually held an LEH. He did not. He and the other individual engaged in what was described in the reasons for judgment as "party hunting", which in the court’s words “is clearly illegal in relation to elk”. [ 29 ] In that particular matter, the Crown sought and the court imposed a fine in the amount of $2,000. It was noted that Mr.

Fair had been cooperative with the authorities when he was being investigated with respect to that particular offence. [ 30 ] The Crown says that the Fair decision is indicative of a fine, which is appropriate, but notes that at the time the Fair decision was rendered that the maximum penalty provided for offences of this nature was only $25,000.

Purposes, Objectives and Principles of Sentencing: [ 31 ] I agree with Crown's submissions described above and specifically that in matters of this nature it is important that there be sufficient general deterrence, and also specific deterrence, for people who choose to participate in violations of the Wildlife Act . Aggravating Factors: [ 32 ] The aggravating factor in this case was the continued deception in which Mr.

Jacobs participated in for several days until it was clear that he was putting his daughter-in-law at risk with possible charges. [ 33 ] It is noteworthy that she was, in fact, charged but Crown has stayed the proceedings against her with respect to an allegation that she made a false statement when she was required to provide information to an officer engaged in the discharge of duties under the Wildlife Act or its regulations, That is contrary to s. 82(1) (

d) of the Wildlife Act . Mitigating Factors:

[ 34 ] Mr. Jacobs comes before the court without any prior involvement before in the criminal justice system or offences under the Wildlife Act . He has been a contributing member of the community for several years, has a stable relationship, and has been actively engaged in hunting for a period of over 40 years without any prior violations. Analysis and Conclusions: [ 35 ] Based on the foregoing, I am of the view that the sentence being sought by the Crown in this matter is appropriate and meets the primary and general sentencing goal of deterrence with respect to offences under the Wildlife Act .

Disposition: [ 36 ] Accordingly, I will impose upon Mr. Jacobs -- I will need you to stand, sir -- I will impose upon him the fine being sought of $3,000. [ 37 ] I am going to impose upon him a probation order as contemplated by s. 89.1 of the Offence Act . [ 38 ] The mandatory terms will include the following. [ 39 ] THE CLERK: That's going to be? [ 40 ] THE COURT: I am sorry? [ 41 ] THE CLERK: Two years? [ 42 ] THE COURT: Two years duration, correct, and the terms will be as follows. I am just going to pause here for a moment. [ 43 ] Mr.

Blackman, are you seeking a reporting probation order, or a non-reporting? [ 44 ] MR. BLACKMAN: Non-reporting, Your Honour. I don't think there's any need for a reporting condition. [ 45 ] THE COURT: Thank you. [ 46 ] All right, the terms and conditions will be as follows: first, to keep the peace and be of good behaviour; second, to appear before the court as and when required to do so by the court; third, to notify the court or a person designated by the court (

i) in advance of any change of your name or your address; and (ii) promptly of your any change in your employment or occupation. [ 47 ] With respect to the optional conditions contemplated by s. 89.2 of the Offence Act there will be a condition as follows: that you will not apply for a hunting licence during the term of the probation order; next, that you will not be found in the company of other persons who are in possession of firearms, except at a bona fide rifle range or at a recognized fish and game club. [ 48 ] There will be a victim fine surcharge with respect to this offence. [ 49 ] Mr.

Jacobs, what will be the required amount of time for you to pay the fine and the victim fine surcharge, which is approximately another 10% as I understand it? [ 50 ] THE ACCUSED: A month. [ 51 ] THE COURT: I am sorry -- [ 52 ] THE ACCUSED: A month. [ 53 ] THE COURT: All right. I am actually going to give you two months to pay that total, and if you cannot do it for some reason, then you should be getting in contact with the court concerning that. [ 54 ] Anything further I need deal with respect to this matter? [ 55 ] MR. BLACKMAN: I don't think so Your Honour.

I think everything has been covered. [ 56 ] I believe for provincial offences, the surcharge is 15 per cent -- [ 57 ] THE COURT: Fifteen, thank you.. [ 58 ] MR. BLACKMAN: -- the last time I looked. [ 59 ] THE COURT: Thank you, I will accept that. The court registry will be able to tell Mr. Jacobs the exact amount. [ 60 ] Mr. Jacobs, there will be some documentation for you to sign down at the court registry. Thank you. [ 61 ] MR. BLACKMAN: Thank you, Your Honour. (REASONS FOR SENTENCE CONCLUDED