R. v. Gilbert Date:, 2016 BCPC 339

Citation: R. v. Gilbert Date: 20161103 2016 BCPC 339 File No: 26187-01 Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAVID DENSMORE GILBERT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. T. DOULIS Counsel for the Crown: G. MacDonald Appearing on his own behalf: D.D. Gilbert Place of Hearing: Quesnel , B.C. Dates of Hearing: October 19, 20, & 21, 2016 Date of Judgment: November 3, 2016 INTRODUCTION

[1] By Information 26187-01 sworn September 1, 2015, David Densmore Gilbert is charged with the following regulatoryoffences: Count 1: David Densmore Gilbert, between the 1st day of September 2012 and the 25th day of August, 2015, inclusive, at or near theCity of Quesnel, in the Province of British Columbia, did maintain, operate or use works without authority, contrary to Section 93(2)(i)of the Water Act, R.S.B.C.

(1996) Chapter 483. Count 2: David Densmore Gilbert, on or about the 25th day of August, 2015, at or near the City of Quesnel, in the Province of theBritish Columbia did use Crown land without lawful authority, contrary to

Section 60(

b) of the Land Act, R.S.B.C. (1996),

Chapter 245. Count 3: David Densmore Gilbert, on or about the 25th day of August, 2015, at or near the city of Quesnel, in the Province of the BritishColumbia did occupy Crown land without lawful authority, contrary to

Section 60(

a) of the Land Act, R.S.B.C. (1996),

Chapter 245. [2] These are all regulatory offences, which the Supreme Court of Canada in R. v. Sault Ste. Marie (City), ,described as quasi-criminal in nature. The Crown is required to prove the wrongful act beyond a reasonable doubt, after which theburden shifts to the accused to show that he took reasonable steps to achieve compliance. The accused also bears the burden of provinghe had authorization where authorization is required. (See Offence Act, RSBC 1996, c 338, s. 98) [3] This matter came before me for trial on October 19, 20, and 21, 2016. Mr. MacDonald appeared on behalf of the Crown andMr.

Gilbert was self-represented. [4] The Crown called only one witness in its case, Natural Resource Officer Herbert Roodenburg, who investigated the allegedoffences on behalf of the Ministry of Forests, Lands and Natural Resources (the “Ministry"). NRO Roodenburg entered into evidence amap, two land title searches, 17 photographs and 13 aerial photographs. These documents were marked Exhibits 1 to 17 in theseproceedings. [5] Mr. Gilbert testified on his own behalf. He entered into evidence a number of photographs he had taken and letters he hadexchanged with the Ministry and various government officials.

These documents were marked Exhibits 18 to 32 in these proceedings. On first blush, Mr. Gilbert’s correspondence to various government officials offends the rule against self-serving evidence. The Crowngenerously consented to its admission as an aide memoire to Mr. Gilbert, who was self-represented. I have not used correspondence Mr.Gilbert has authored and entered into evidence as corroboration of the veracity of his oral evidence. I do accept these Exhibits asevidence that Mr. Gilbert did in fact write the letters he claims to have written in his attempts to resolve these matters. [6] Mr.

Gilbert did not cross-examine NRO Roodenburg, but then testified about many events and conversations to which NRORoodenburg and the Crown were entitled to respond. The Crown declined to recall NRO Roodenburg or rebuttal evidence, althoughinvited to do so. BACKGROUND [7] David Densmore Gilbert is the registered owner of the following parcels of land situated in the Cariboo Assessment Area: a. Parcel Identifier: 015-295-478, legally described as: District Lot 11826, Cariboo District. b. Parcel Identifier: 015-121-399, legally described as: The north ½ of the south east ¼ of District Lot 4988, Cariboo District. c.

Parcel Identifier: 015-121-402, legally described as, the south ½ of the north east ¼ of District Lot 4988, Cariboo District. d. Parcel Identifier: 015-113-981, legally described as Block A of the south west ¼ of District Lot 4988, Cariboo District. e. Parcel Identifier: 015-113-990, legally described as the north west ¼ of District Lot 4988, Cariboo District. [8] A copy of a land title search conducted by NRO Roodenburg on June 7, 2013, was entered into evidence in these proceedingsas Exhibit 2. This document shows that Mr.

Gilbert’s title to Parcel Identifier: 015-295-478 was registered in his name in the PrinceGeorge Land Title Office on January 27, 1993. Exhibit 2 further shows that from October 25, 1985 to January 27, 1993, ParcelIdentifier: 015-295-478 was registered in the name of Fred Elmer Gilbert, who I understand to be Mr. Gilbert’s uncle. [9] Parcel Identifier: 015-295-478 has been referred to in these proceedings as District Lot 11826 or the Mount Creek site, farm orranch.

These lands, comprising 160 acres, are situated in the vicinity of the Nazko Highway approximately 30 miles from Quesnel, B.C. [10] Parcel Identifiers: 015-121-399, 015-121-402, 015-113-981 and 015-113-990 represent Mr. Gilbert’s interest in District Lot4988. A copy of a Land Title Search conducted by Herbert Roodenburg on November 7, 2014, was entered into evidence in theseproceedings as Exhibit 3. [11] Exhibit 3 indicates Mr. Gilbert’s titles to Parcel Identifier: 015-113-981 and Parcel Identifier: 015-113-990 were registered inthe Prince George Land Title Office on August 2, 1985. Mr.

Gilbert’s titles to Parcel Identifiers: 015-121-399 and 015-121-402 wereregistered in the Prince George Land Title Office on November 24, 1989. [12] Parcel Identifiers 015-121-399, 015-121-402, 015-113-981 and 015-113-990 are the only privately owned portions of District

Lot 4988. Mr. Gilbert’s interest in those lands has been referred to in these proceedings alternatively as the privately owned portion of District Lot 4988 or the Bluestone Creek site, farm or ranch. These lands comprise of 332 acres and are situated at the end of Gilbert #2 Road, 23 miles west of Quesnel B.C. [ 13 ] Mr. Gilbert also owns District Lot 9515, Cariboo District, which is referred to on Exhibit 1 as the Chevans Creek site. The lands are at the end of Gilbert #1 Road, 18 miles west of Quesnel, B.C., off the Nazko Highway. Mr. Gilbert refers to these lands as the Chevans Creek farm or ranch.

The Chevans Creek farm is not subject of the offences charged by Information 26187-01. [ 14 ] Mr. Gilbert inherited the Chevans Creek, Bluestone Creek, and Mount Creek farms from his father and uncles. He inherited the Mount Creek farm from his Uncle Fred Gilbert. He acquired title to the Mount Creek farm on January 27, 1993, but did not begin operating the farm until approximately 2008. Prior to this time, Fred Gilbert and another rancher, Wayne Anderson, operated the Mount Creek farm. [ 15 ] Mr.

Gilbert also inherited the Bluestone Creek farm from his Uncles Bill Gilbert and Fred Gilbert in 1985 and 1989 respectively. [ 16 ] Fred Gilbert initially lived at Mount Creek farm. Upon inheriting Bluestone Creek property, Fred Gilbert moved to the Bluestone Creek residence because the Mount Creek farm had no telephone service or hydro power. At some point, Fred Gilbert decided to move back to Mount Creek farm and bequeathed the Bluestone Creek farm and its cattle to his nephew. Mr. Gilbert did not make Bluestone Creek farm his residence for some time.

Although he cared for the cattle on Bluestone Creek farm, he rented the Bluestone Creek residence and lived with his father in his trailer on the Chevans Creek farm. Eventually, Mr. Gilbert inherited the Chevans Creek farm from his father. [ 17 ] Exhibit 1 is a map prepared by NRO Roodenburg from the iMapBC, a publically available mapping system. The map shows the geographical area west of the Quesnel and the Fraser River encompassing the Nazko Highway, the Chevans Creek, and Bluestone Creek and Mount Creek sites. [ 18 ] In addition to the three farms he inherited from his father and uncles, Mr.

Gilbert also has a trap line he uses to harvest small fur bearing animals. He identified the location of this trap line on Exhibit 1. ISSUES [ 19 ] There were a number of issues raised at trial, both by the Crown and Mr. Gilbert. Some of these issues were not apparently germane to the offences charged. Nevertheless, I have addressed these issues as Mr. Gilbert is self-represented and needs to know how and why I have reached the decision I have. A. Changes in or about Mount Creek 1. Did Mr. Gilbert divert Mount Creek near the west boundary of District Lot 11826 without authority? 2. Did Mr.

Gilbert divert Mount Creek near the east boundary of District Lot 11826 without authority? 3. Did Mr. Gilbert remove vegetation from the Mount Creek stream banks on Crown land near the northwest boundary of District Lot 11826 without authority? 4. Did Mr. Gilbert use the natural occurring changes in and about Mount Creek without authority? 5. Did Mr. Gilbert construct works in Mount Creek on Crown land without authority? 6. Did Mr. Gilbert use the works constructed on Mount Creek on Crown land without authority? B. Changes to Bluestone Creek 7 . Did Mr.

Gilbert divert Bluestone Creek from its natural stream channel without authority? 8. Did Mr. Gilbert install works on the Bluestone Creek without authority? 9. Did Mr. Gilbert use works on the Bluestone Creek without authority? C. Land Act offences 10. Did Mr. Gilbert occupy the Mount Creek farm trespass lands? 11. Did Mr. Gilbert use the Mount Creek farm trespass lands?

D. Defences 12. Did Mr. Gilbert exercise due diligence? 13. Are these proceedings an abuse of process? [20] The Crown provided the Court with a copy of the Water Act, 1996, c. 48 in force on January 6, 2016, and a copy of s. 60 of theLand Act, R.S.B.C., 1996, c. 245. I have reviewed such other legislation and case authorities I considered relevant. FINDINGS of RELIABILITY and CREDIBILITY [21] Mr. Gilbert is presumptively innocent. The Crown is required to prove its case against him beyond a reasonable doubt. If Ihave reasonable doubt with respect to any element of any offence with which Mr.

Gilbert is charged, he is entitled to an acquittal. [22] As Mr. Gilbert has testified I must apply the guidelines articulated by Justice Cory in R. v. W. (D), (SCC),[1991] 1 S.C.R. 742. I found Mr. Gilbert to be a credible and reasonably reliable witness. I say “reasonably reliable” because,understandably, he could not always remember the date when some historical events occurred. [23] Much of Mr. Gilbert’s defence of due diligence or allegations of bad faith went unchallenged and unanswered. Still, Mr.Gilbert’s rancour at the Ministry in general and NRO Roodenburg in particular was palpable.

For this reason I have exercised cautionwhen assessing the veracity of Mr. Gilbert’s accusations of bad faith and malfeasance. [24] I found NRO Roodenburg’s evidence as to his own observations and activities credible and reliable. I do not accept hisevidence on aerial

interpretation or causation where it conflicts with Mr. Gilbert’s evidence. Although I have no doubt NRO Roodenburgwas trying to be truthful, I found some of his conclusions as to causation speculative. The Water Act offences [25] The Water Act vests ownership of all water in a stream in the government.

Water in a stream is statutorily defined as including“a natural watercourse or source of water supply, whether usually containing water or not, and a lake, river, creek, spring, ravine, swampand gulch.” The Water Act requires a person to have a license, permit or authorization before diverting, using, storing or conveyingwater in a stream or altering a stream or channel or making changes in and about a stream. (See Sections 2, 5, 9 and 26). Changes in or about Mount Creek [26] The Crown alleges Mr. Gilbert is responsible for making three changes in and about Mount Creek: (

a) diverting the streamchannel near the west boundary of District Lot 11826; (

b) diverting the stream channel near the east boundary of District Lot 11826; and(

c) removing vegetation from the Mount Creek stream banks on Crown land near the northwest boundary of District Lot 11826. Thesediversions and changes constitute “works” within the definition of that term under the Water Act. [27] The Crown entered into evidence two aerial photographs NRO Roodenburg took of the Mount Creek Farm in 2014. (SeeExhibits 4 and 5). They shows an iconic family farm with neatly cultivated fields cross cut with meandering creeks. The creeks areflanked by willows and the farm is surrounded by a forested Crown land.

NRO Roodenburg identified the creek flowing from the southto the north as Mount Creek and the creek running from east to west as a tributary of Mount Creek. [28] Exhibits 6, 7, 8, 9, 10, 14, 15 and 16, are aerial photographs of the Mount Creek farm and surrounding Crown land taken invarious years. Exhibit 10 was taken in 1997, Exhibit 9 in 2005, Exhibits 8, 14,15 and 16 in 2006, Exhibit 7 in 2010 and Exhibit 6 in2013. On Exhibits 14, 15, 16 NRO Roodenburg superimposed in red the metes and bounds of District Lot 11826.

On Exhibit 16, NRORoodenburg superimposed the geographical location of the improvements shown in 22 photographs comprising Exhibit 17. Hedetermined the exact geographical coordinates of these sites using a Global Positioning System. 1. Did Mr. Gilbert divert Mount Creek near the west boundary of District Lot 11826 without authority? [29] The Crown alleges Mr. Gilbert diverted Mount Creek without authorization.

The Water Act defines divert as follows: “divert", or a word of similar import, means taking water from a stream and includes causing water to leave the channel of a stream andmaking a change in or about the channel that permits water to leave it; [30] The Crown’s allegations are based principally on NRO Roodenburg’s

interpretation of aerial maps. NRO Roodenburg saysExhibits 7 and 9 show that where Mount Creek once meandered through the western portion of District Lot 11826, it now flows in arelatively straight line.

[ 31 ] Mr. Gilbert agrees that Mount Creek channel has changed its course over the years, but not as the result of anything he has done. Mr. Gilbert says the logging in the Mount Creek area began in 1975 with the construction of 3700 Road. Initially, the logging was confined to the flat lands; however, since the advent of the northern pine bark beetle infestation, the entire Mount Creek watershed has been clear cut and carved up by logging roads.

The resulting deforestation allows massive volumes of water and debris to hurl unimpeded down the mountainside causing extensive flooding. [ 32 ] Each spring, these floodwaters inundate the Mount Creek farm lands and erode the banks of Mount Creek itself. A rain storm can cause the creek to rise two feet in six hours. It remains that height for two or three days after the rains stops. Presently, there is four feet of water in Mount Creek when it should be only four inches. Mr.

Gilbert attributes the changes to the Mount Creek’s channel to the carnage resulting from the Ministry’s policy to allow extensive logging in the Mount Creek water shed. [ 33 ] Exhibit 27 comprises 12 photographs corroborates Mr. Gilbert’s evidence of widespread flooding. Exhibit 28 comprises 13 photographs Mr. Gilbert took in the summer of 2014 showing the extensive erosion to Mount Creek caused by the annual flooding. These photographs show Mount Creek’s bank sloughing into the creek and the creek carving new channels in Mr. Gilbert’s hay fields. Mr.

Gilbert has complained to the Ministry repeatedly of the impact of deforestation on his Mount Creek farm. (See Exhibit 18). [ 34 ] Mr. Gilbert says beavers also contribute to the ongoing changes to Mount Creek’s channels. They dam portions of Mount Creek for their lodges to gain ready access to willows upon which they feed. Mr. Gilbert is constantly pulling apart their dams by hand. [ 35 ] Mr. Gilbert moved onto the Chevans Creek farm with his parents when he was 18 months old. He has spent many years in that area, more so since he retired from his career with B.C. Telephone in 1996.

In addition to caring for the three farms he inherited, Mr. Gilbert has a working trap line. He has personally observed and experienced the incremental changes to the Crown forests and the impact of these changes on Mount Creek. The Crown has provided no evidence which contradicts or undermines Mr. Gilbert’s explanation as to why Mount Creek has changed its course over the years. Even absent that explanation, I am not prepared to find that Mr. Gilbert is responsible for Mount Creek changing its course on the western portion of District Lot 11826 based on the investigating officer’s

interpretation of aerial maps. NRO Roodenburg’s expertise in the

interpretation of aerial photography has not been established. The Crown has charged Mr. Gilbert with quasi-criminal offences and bears the burden of proving its allegations beyond a reasonable doubt. The Crown cannot establish causation or liability by simply pointing out changes to a feature on a series of aerial maps taken in different years. This would impermissibly shift the burden of proof from the Crown onto the accused. 2. Did Mr.

Gilbert divert Mount Creek near the east boundary of District Lot 11826 without authority? [ 36 ] NRO Roodenburg testified that Photographs 21 and 22 of Exhibit 17 and Exhibit 7 depict an area near the east boundary of District Lot 11826 where the stream has been diverted and the original channel infilled. He points to the exposed soil in support of this assertion. Mr. Gilbert agrees the shoe shape feature in Exhibit 7 may depict the site of an old meander of Mount Creek. He also agrees that

section of Mount Creek appears relatively straight, but so do a number of other sections. [ 37 ] The Crown postulates that someone used an excavator to divert Mount Creek to straighten it and then infilled the natural meander. This would have been done sometime before the aerial photograph was taken in 2010. (See Exhibit 7). Mr. Gilbert said if this happened it wasn’t his doing. Farmers routinely try and level their field by filling stump holes and old depressions. If the shoe shaped feature on Exhibit 7 was an old meander, someone, not him, may have infilled the residual depression. Mr.

Gilbert says the Mount Creek fields are full of depressions. Exhibits 2 and 3 appear to corroborate that statement. [ 38 ] Mr. Gilbert asserts the change in Mount Creek’s watercourse in the east portion of District Lot 11826, as in the west, was caused by the Ministry’s polices to clear cut the Mount Creek watershed with the result that in the spring, Mount Creek becomes a muddy flush of clay, silt, sand, gravel and logging debris. This extreme annual flooding has carved and continues to carve up his meadow lands. Tons of soil, willows and trees are being flushed down Mount Creek on the way to Baker Creek. Mr.

Gilbert has brought this horrendous damage from the spring floods to the attention of the Ministry. (See Exhibits18 and 27). [ 39 ] Mr. Gilbert says the beavers caused changes to Mount Creek stream channel in the east of District Lot 11826, as they have in the west. Recently, he discovered a 300 yard dead channel of Mount Creek in his southwest meadow caused by beaver activity. There he found dead trout in its warm landlocked waters. [ 40 ] I find the Crown’s allegations that Mr. Gilbert diverted and infilled Mount Creek in the areas depicted in Photographs 21 and 22 of Exhibit 17 and Exhibit 7 unfounded. 3.

Did Mr. Gilbert remove vegetation from the Mount Creek stream banks on Crown land near the northwest boundary of District Lot 11826 without authority? [ 41 ] The Water Act prohibits any person from making any changes in or about a stream without authorization.

Section 1 defines “ changes in and about a stream " to mean: (

a) any modification to the nature of a stream including the land, vegetation, natural environment or flow of water within a stream, or (

b) any activity or construction within the stream channel that has or may have an impact on a stream; [ 42 ] The Crown asserts that Photograph 13 in Exhibit 17 depicts an area of Mount Creek where an excavator had been used to “scrape” the bank. This area is located near the northwest quad bridge Mr. Gilbert had constructed over Mount Creek on Crown land.

NRO Roodenburg took Photograph 13 on May 16, 2013. He did not further investigate this impugned area nor did he produce any closeup or detailed photographs. Mr. Gilbert denies using an excavator at the site. Had this occurred, he says, there would be visible tracksor tire marks. He has a point; there is no forensic evidence of this nature. Certainly, nobody testified to having observed Mr. Gilbertoperating an excavator in that location. In fact, NRO Roodenburg saw Mr. Gilbert on Mount Creek farm on one occasion only, namelyAugust 25, 2015, and even then, from a distance while Mr.

Gilbert was operating his tractor and mower. [43] Mr. Gilbert attributes the devegetated area to the debris and fast moving water characteristic of the spring floods. In my viewthere is a dearth of evidence that Mr. Gilbert or anyone on his behalf used an excavator at the impugned site. Mr. Gilbert’s theory as tothe causation is as reasonable and probable as the Crown’s. 4. Did Mr. Gilbert use the natural occurring changes in and about Mount Creek without authority? [44] Section 93(2)(

i) makes it an offence to use works without authorization. The definition of works includes “changes in and abouta stream.” Can it be said that even if Mr. Gilbert did not cause the impugned changes to Mount Creek, that he “used those changes” incontravention of s. 93(2)(

i) of the Water Act? [45] As the Water Act does not define “use”, the court must engage the principles of statutory

interpretation to ascertain its meaning. The modern principle of statutory

interpretation is that adopted by the Supreme Court of Canada in in Bell ExpressVu LimitedPartnership v. Rex, 2002 SCC 42 , para 26: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context, in their grammatical andordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [46]

Section 8 of the

Interpretation Act, RSBC 1996, c 238 states: Every enactment must be construed as being remedial, and must be given such fair, large and liberal construction and

interpretation asbest ensures the attainment of its objects. [47] Where a term within a regulatory statue has not been defined it is open to the judge to consult a dictionary to assist in definingits meaning. In fact, a dictionary is often the starting point: R. v. Skakun, 2014 BCCA 223 , para. 10. This was the SupremeCourt’s approach in R. v. Steele, 2007 SCC 36 when considering the meaning of the word “use” in the context of a criminalproceeding.

At issue in that case was the meaning of the word “uses” under s. 85(1) of the Criminal Code, which makes it a separateoffence to use a firearm while committing certain enumerated indictable offences. Fish J., for a unanimous court noted in paragraph 28that it is settled law that use and mere possession are not synonymous. At paragraph 31, Fish J. states: [31] . . . the Court has recognized that the ordinary meaning of “use” (or “utilise”, in the corresponding French version of a statute)can be discerned from its dictionary

definitions in both languages. In determining the meaning of utiliser, albeit in a different context, theCourt adopted its definition in the Petit Robert, which includes [TRANSLATION]“render useful [or] employ for a specific purpose”(Veilleux v. Quebec (Commission de protection du territoire agricole), (SCC), [1989] 1 S.C.R. 839, at p. 854). Thisdefinition, the Court found, “implies both the idea of activity and the idea of an ultimate purpose”.

Similarly, the Canadian OxfordDictionary (2nd ed. 2004) defines “use” as “employ (something) for a particular purpose . . . [or] exploit (a person or thing) for one’sown ends”.

Likewise, according to Black’s Law Dictionary (6th ed. 1990), “use” means “make use of; to convert to one’s service; toemploy; to avail oneself of; to utilize; to carry out a purpose or action by means of; to put into action or service, especially to attain anend” (emphasis added). [48] In my view, before a person can be found guilty of using a works, the Crown must prove that person put into action or servicethat works for his or her own purpose. In this case the Crown has not established that Mr.

Gilbert made use of the naturally occurringchanges to Mount Creek to the extent those changes constituted a “works” within the meaning of that term under the Water Act. All Ihave gleaned from the evidence led at trial is that by virtue of his ownership of the Mount Creek farm, Mr. Gilbert had “passivepossession” of the changes to Mount Creek caused by spring floods and beavers and that he was not particularly happy about it.

I do notaccept the legislature intended to make a landowner guilty of an offence for merely possessing lands on which a stream changed itschannel or appearance as the result of naturally occurring factors. If the Crown’s point is that Mr. Gilbert infilled the stream channel toprevent Mount Creek from reverting back to its original water course after the flood waters subsided, then it has failed to prove the factsunderlying those allegations. 5. Did Mr.

Gilbert construct works in Mount Creek on Crown land without authority? [49] On May 16, 2013, May 28, 2013 and June 11, 2013, NRO Roodenburg observed and photographed the following works onCrown land in the vicinity of District Lot 11826: (

a) a drainage ditch, (

b) a culvert; and (

c) two narrow quad bridges, one in the north andone in the south; and (

d) a variable height fence. [50] He observed these works again on August 25, 2015. The drainage ditch is depicted in Photographs 1, 2, 6, 7, 8, 10; the culvert

is depicted in Photographs 8, 9, 10, 20, and the bridges are depicted in Photographs 3, 4, 12, 14, 15; and the variable height fence is depicted in Photographs 3 and 4. NRO Roodenburg was able to determine the precise location of these works through a GPS system. He also located and photographed the northwest and southwest survey corner pins of District Lot 11826. (See photographs 5 and 11, Exhibit 17). The Drainage Ditch and Culvert [ 51 ] Mr. Gilbert admits that he excavated the drainage ditch and installed the culvert on Crown lands as depicted in photographs number 1, 2 4, 6, 7, 8, 19, 20 of Exhibit 17.

He did so in October 2012 in order to drain water from his meadowlands. [ 52 ] The ditch, which is identifiable on Exhibit 6, is constructed for some distance across the northwest portion of Mr. Gilbert’s meadow lands. Ninety-seven percent of the ditch is on Mr. Gilbert’s titled property.

Three percent, or 85 feet, extends beyond the northwest boundaries of District Lot 11826 onto Crown land where it connects to Mount Creek via culvert. [ 53 ] NRO Roodenburg identified Photolocation Map marked as Exhibit 16 an aerial map taken from 2006, on which he has superimposed the boundaries of District Lot 11826 and the location from where he took the photographs comprising Exhibit 17. This aerial map shows a feature which has been identified as the ditch Mr. Gilbert excavated on his meadowlands.

Either NRO Roodenburg’s evidence as to the date of the aerial map is incorrect, or the feature associated with Photographs 6, 7, 8 and 9, existed on or before 2006. I think it more likely Exhibit 16 was a copy of Exhibit 6, taken in 2013. [ 54 ] Mr. Gilbert admits he excavated the drainage ditch and installed the culvert on Crown lands, but says this was done in October 2012. He also says when he carried out this work, Mount Creek was bone dry and no turbidity went into the creek.

He placed a filter cloth at the entrance of the creek in the ditch on wood stakes to mitigate any flushing of peat soil turbidity into Mount Creek. Quad Bridges [ 55 ] Mr. Gilbert admits that he constructed the two narrow quad bridges on the Crown trespass lands that NRO Roodenburg observed and photographed on May 16, 2013, and depicted in Photographs 3, 4, 12, 14 and 15 of Exhibit 17. Mr. Gilbert does not know when he built these bridges. NRO Roodenburg observed these bridges intact on May 16, 2013, June 11, 2013, and August 25, 2015.

I understand it is the Crown’s position the quad bridges constituted “c hanges in and about a stream” and therefore fall within the definition of “works”. Variable Height Fence [ 56 ] Mr. Gilbert admits he built the variable height metal fence that NRO Roodenburg observed attached to the north quad bridge on May 16, 2013. (See Photographs 3 and 4 of Exhibit 17). Mr. Gilbert designed and erected the fence at the same time he built the north quad bridge. The fence is a cattle guard of sorts to be raised or lowered depending on the water levels in Mount Creek.

Its purpose is to keep cattle from crossing the creek onto his hay fields. Arguably, this cattle guard also constitutes “c hanges in and about a stream” and falls within the definition of “works”. Authorizations for Works Constructed on Crown land [ 57 ] The Water Act requires Mr. Gilbert to have a permit to construct works such as a drainage ditch, culvert, quad bridges or cattle guard on Mount Creek on Crown lands. He had no such authorization. 6. Did Mr. Gilbert use the works constructed on Mount Creek on Crown land without authority [ 58 ] Mr.

Gilbert admits he has used and continues to use the drainage ditch, culvert, quad bridges or variable height fence on Crown lands for his own purposes. He used the ditch and culvert to drain the water from his meadow lands; he used the quad bridges to access his trap line and repair his fences and he used the variable height fence as a cattle guard. This usage took place sometime during the offence period, which was September 1, 2012 to August 25, 2015. Mr. Gilbert admits he had no permit from the Ministry to use these works. A.

Summary of Findings with Respect to Count 1 with Respect to Mount Creek Farm [ 59 ] The Crown has charged Mr. Gilbert with maintaining, operating or using works without authority between September 1, 2012 and August 25, 2015, inclusive. With respect to Count 1, as it applies to the Mount Creek Farm lands, the Crown has not proven, nor has it asserted, that Mr. Gilbert constructed, operated or maintained works during the offence period. At trial, the Crown particularized the charge set out in Count 1 to “use works without authority.”

[ 60 ] I find the Crown has proven beyond a reasonable doubt that during the period of September 1, 2012 and August 25, 2015, Mr. Gilbert used the drainage ditch, culvert, north and south quad bridges and variable height fence constructed on Crown lands and that he did not have authority to do so. I do not understand the Crown to be arguing Mr. Gilbert needed a permit to construct or use the ditch on his titled lands. If I am wrong in this understanding, I find the Crown has not proven this allegation. [ 61 ] The Crown’s allegation Mr.

Gilbert is responsible for Mount Creek changing its channel or using an excavator on its banks is unfounded. B. Changes to Bluestone Creek 7 . Did Mr. Gilbert divert Bluestone Creek from its natural stream channel without authority? [ 62 ] The Crown has relied on aerial photography to support its allegation that Mr. Gilbert used unauthorized works on the Bluestone Creek farm between September 1, 2012 and August 25, 2015. NRO Roodenburg says Exhibit 11 was taken sometime in 1997 and Exhibits 12 and 13 were taken in 2005 and 2012 respectively.

He says at some point during this 15 year period Bluestone Creek had been diverted from its original channel, which ran through the middle of the cultivated lands, to its current location at the southern edge of the cultivated fields. Using the iMapBC system, NRO Roodenburg superimposed a solid blue line on Exhibit 12 depicting the approximate location of the original Bluestone Creek channel and dash lines depicting the location of ditches carrying the new flow of water.

NRO Roodenburg opines the “strong black line” to the south, west and north of the fields are manmade ditches and the white spots within those black lines are ditch crossings. NRO Roodenburg admits the only ditches he personally observed were on the far right hand side of Exhibit 13. He circled the location from where he had made these observations. I note this location is at the far east end of the 332 acre Bluestone Creek farm. [ 63 ] NRO Roodenburg met Mr. Gilbert at his residence on the Bluestone Creek farm on April 24, 2013, and again on September 26, 2013.

He did not actually inspect Bluestone Creek, its works or original channel. NRO Roodenburg’s assertion the dark line to the south and west of the fields depicted on Exhibits 12 and 13 are manmade ditches is based on his own

interpretation of the aerial photography. I note there are four dark lines in the area NRO Roodenburg circled on Exhibit 13 as representing the location from where he observed the ditches. He did not identify which of these lines he believes to be the ditches and which, if any, was Bluestone Creek. [ 64 ] Mr. Gilbert says the feature NRO Roodenburg has interpreted to be the Bluestone Creek on Exhibit 13 is in fact a ditch. He says that if Bluestone Creek was diverted by human endeavour, this was done years ago by his uncle when he owned and operated the farm. [ 65 ] Bill Gilbert died in 1985 - over 30 years ago.

As long as Mr. Gilbert has been on the property, Bluestone Creek was located in its present channel south and west of the fields. I need not determine when or even if Bluestone Creek’s was diverted because Mr. Gilbert is not charged with under s. 93(2)(

k) of the Water Act . I accept Mr. Gilbert’s evidence that Bluestone Creek is located where he says it is and that it has been in that location long before the offence date. 8. Did Mr. Gilbert install works on the Bluestone Creek without authority? [ 66 ] Mr. Gilbert says that works on Bluestone Creek have been in place since he has owned the property. He believes they were installed by his Uncle Bill Gilbert who originally owned the Bluestone Creek farm. 9. Did Mr. Gilbert use the Bluestone Creek works without authority? [ 67 ] Mr. Gilbert has been charged with “using works without authority” contrary to s. 93(2)(

i) of the Water Act . The “works” are the ditches and culverts on and changes to Bluestone Creek. I accept Mr. Gilbert’s evidence that even if it had been diverted years ago, the Bluestone Creek has become naturalized in its present course. What NRO Roodenburg refers to as a manmade ditch, is Bluestone Creek’s stream channel. [ 68 ] Mr. Gilbert says the culverts on the Bluestone Creek have been in place since he has owned the property. He has never had to fix or maintain them. They are now covered in sod. The Crown argues that even if these works were installed long ago by someone else Mr.

Gilbert was still obligated to obtain a licence for their use. [ 69 ] The Crown cross-examined Mr. Gilbert on whether he diverted Bluestone Creek or installed or maintained the existing culverts. Mr. Gilbert was never asked if he withdraws and uses water from the Bluestone Creek, and if so, for what purpose. The evidence before me does not go beyond establishing Mr. Gilbert passively allowed the works on the Bluestone Creek to continue to exist as they have for years, if not decades. I am not persuaded this passive possession of pre-existing culverts is suffice to establish use for the purposes of s. 93(2)(

i) of the Water Act .

Summary of Findings with Respect to Count 1 as it applies to the Bluestone Creek farm. [ 70 ] I find the Crown has not proven that Mr. Gilbert diverted Bluestone Creek, constructed works on Bluestone Creek or used works on Bluestone Creek.

C. The Land Act O ffences [ 71 ] At issue in these proceedings are areas of trespass onto Crown land adjoining the District Lot 11826, the titled lands to the Mount Creek farm. The Crown’s evidence includes: (

a) NRO Roodenburg’s oral evidence as to his investigations and observations; (b) 22 photographs comprising Exhibit 17; and (c) 10 aerial photographs was taken in 1997 (Exhibit 10), 2005 (Exhibit 9), 2006 (Exhibits 8, 14, 15 and 16), 2010 (Exhibit 7), 2013 (Exhibit 6) and 2014 (Exhibits 4 and 5) of the Mount Creek farm and surrounding Crown land. The Crown has used these Exhibits to show the site and nature of the trespass of the Mount Creek farm onto Crown land. This trespass encompasses the following encroachments and improvements: a. 10.48 hectares of Crown land which have been converted into hay fields.

These lands are situated within an area depicted by a yellow solid line on Exhibit 14. District Lot 11826 is identified on Exhibit 14 as the lands bounded by a solid red line; b. 2,327 meters of unauthorized fencing on Crown land which effectively isolates 19.57 hectares of Crown land. This 19.57 hectares is identified on Exhibit 15 as a broken black line. District Lot 11826 is identified on Exhibit 15 as the lands bounded by a solid red line.

The 10.48 hectares of Crown land which have been converted into hay fields are found between the boundary of District Lot 11826 and the 19.57 hectares of unauthorized fencing; and c. improvements constructed on Crown land within the unauthorized fenced 19.57 hectares. These improvements include: (

a) the fence itself; (

b) a drainage ditch, (

c) a culvert; and (

d) two narrow quad bridges, and a the variable height bridge. NRO Roodenburg observed and took photographs of these improvements on May 16, 2013, June 11, 2013 and May 28, 2013. On Exhibit 16, NRO Roodenburg imposed the geographical location of the improvements shown in the 22 photographs comprising Exhibit 17. [ 72 ] Mr. Gilbert is charged with both using and occupying Crown land without authority. Neither verb is defined in the Land Act . I have already discussed the meaning of the word “use” above.

Merriam Webster Online dictionary define occupy as follows: transitive verb 1 : to engage the attention or energies of 2a : to take up (a place or extent in space) <this chair is occupied> <the fireplace will occupy this corner of the room> b : to take or fill (an extent in time) <the hobby occupies all of my free time> 3a : to take or hold possession or control of <enemy troops occupied the ridge> b : to fill or perform the functions of (an office or position) 4 : to reside in as an owner or tenant [ 73 ]

Section 60 of the Land Act sets out separate offences for using or occupying or possessing Crown land without authorization. Since the legislature does not speak in vain, these three verbs must mean something different. They are not synonymous or rhetorical. 10. Did Mr. Gilbert occupy the Mount Creek trespass lands? [ 74 ] Mr. Gilbert did not reside on the Mount Creek farm. In the past, Mr. Gilbert cut domesticated hay on the enclosed trespass lands, but it was Fred Gilbert who planted and cultivated this crop. Since 2012, Mr.

Gilbert harvested the domestic hay which grows on the trespass lands if permitted to do so by the Ministry. [ 75 ] Mr. Gilbert’s evidence that he applied for hay cutting permits for the Mount Creek farm trespass lands is corroborated by Exhibit 20, a letter dated November 4, 2015, which Mr. Gilbert received from Rick Manwaring, the Assistant Deputy Minister. Mr. Manwaring states Mr. Gilbert’s application to purchase the Chevans Creek farm trespass was “still in process and should be completed soon.” Mr. Manwaring goes on to say that in the event his application for a Crown Grant was unsuccessful, Mr.

Gilbert would have the option of applying to the district for a long-term hay cutting licence of up to 25 years. With respect to the Mount Creek farm, Mr. Manwaring said that as it was part of a court action, no hay-cutting tenure would be issued. [ 76 ] Exhibit 23 is a letter which Mr. Gilbert wrote on August 12, 2016, to Julie Pinette, the Senior Portfolio Administrator for the Ministry concerning his application to purchase the Chevans Creek trespass lands. In his letter Mr. Gilbert objected to an invoice he received from the Ministry for occupational rent of the Crown trespass lands.

He protested he had been compliant with the Ministry’s orders not to cut or destroy the hay for the past two years. He says he had explained this to Ms. Pinette many times and the Ministry staff knew he complied with their wishes. Although the letter seems to be about the Chevans Creek farm, it does support Mr. Gilbert’s evidence that in recent years, the Ministry has prohibited him from haying his trespass lands without a permit. [ 77 ] It appears the Ministry’s management and monitoring of Mr. Gilbert’s use of the trespass lands on all his farms commenced long before the offence date. In Exhibits 24 and 25, Mr.

Gilbert asserted to Ministry officials that his efforts to purchase the trespass lands have been ongoing for six years. At trial, Mr. Gilbert indicates his entanglement with NRO Roodenburg over the trespass lands has been ongoing for seven years. He complained of Mr. Vanderburgh’s letter to him of October 22, 2015 threatening to “smash and destroy” his corrals, calf shelter and riding arena fence. Mr. Gilbert testified that Mr. Vanderburgh and NRO Roodenburg ordered him to remove his gate and sign. Although Mr. Gilbert’s evidence intermingles administrative proceedings relating to all three farms, it is

apparent that in recent years, the Ministry has escalated its oversight and control of Mr. Gilbert’s presence on and use of the Crown trespass lands. [ 78 ] The Ministry’s intense monitoring and supervision of Mr. Gilbert’s use of the Crown trespass lands militates against his having “occupied” those lands without authority on August 25, 2015. Although Mr. Gilbert exercised some measure of control over who could access the trespass lands by maintaining fences and locked gates, he did not have exclusive or ultimate control.

The Ministry restricted the manner in which he could use the trespass lands and charged him for their use. At any time the Ministry could have simply ordered Mr. Gilbert remove the fences or have them removed at his expense. This appears to be what happened to improvements on the Bluestone Creek farm trespass lands. (See Exhibits 31 and 32). There is no evidence before me of any

Section 59 Land Act orders made against Mr. Gilbert with respect to the Mount Creek trespass lands. Still, I cannot conclude this absence of evidence is evidence of absence. If the Ministry did tolerate the fences on the Mount Creek trespass lands, it certainly did not tolerate Mr. Gilbert’s free use of the Crown lands enclosed by those fences. Accordingly, I do not find that on August 25, 2015, Mr. Gilbert occupied Mount Creek trespass lands without authority. 11. Did Mr.

Gilbert use the Mount Creek trespass lands? [ 79 ] On May 28, 2013, NRO Roodenburg had observed and photographed a fence on the Crown trespass lands associated with the Mount Creek Farm. (See Photographs 18 and 19, Exhibit 17). Mr. Gilbert agrees that the broken black line which NRO Roodenburg superimposed on Exhibit 15 accurately shows the location and extent of fencing on the Crown trespass lands. NRO Roodenburg digitally measured this fencing to be 2,327 meters long, isolating 19.57 hectares of Crown land. Mr.

Gilbert accepts the accuracies of these measurements and calculations. [ 80 ] Although he denies constructing the fencing, Mr. Gilbert admits he maintained the fences with its locked gates which enclosed the trespass lands that impeded public access. [ 81 ] Mr. Gilbert also admits to having constructed and used water works on the Mount Creek trespass lands in the nature of a ditch, culvert, and two bridges, one with an attached cattle guard. [ 82 ] There is no doubt that Mr. Gilbert used the trespass lands from time to time.

Although these works and improvements were constructed outside the offence period, they were available for his use on the offence date, namely August 25, 2015. NRO Roodenburg observed the improvements on the Mount Creek trespass lands, intact, on August 25, 2015. There is, however, no evidence Mr. Gilbert actively used the bridges, culvert, ditch and cattle guard on August 25, 2015. The fact these improvements were available to be used is not the same as their being actively used on the offence date. NRO Roodenburg said he saw Mr.

Gilbert on the Mount Creek farm on August 25, 2015, from a distance, in his tractor and mower. Obviously, he was not using the improvements at that time. [ 83 ] There is no evidence of any water being drained from Mr. Gilbert’s meadow on August 25, 2015, to engage the use of the ditch and culvert. I understood from Mr. Gilbert’s evidence the excess meadow water was present in spring time. I note in NRO Roodenburg’s photographs marked Exhibit 17 there is very little water in the ditch on May 16 and none in the culvert.

I would be surprised if there was any water in the ditch and culvert by late August. [ 84 ] In the absence of evidence of active utilization, it cannot be said that on August 25, 2015, Mr. Gilbert “used” Crown trespass land simply because those improvements existed on that date. [ 85 ] The Crown’s only viable argument that Mr. Gilbert used Crown land on August 25, 2015, arises from the fact that on that day, portions of his fence remained functional on the Mount Creek Crown trespass lands. Mr. Gilbert admits he used this fence on, before and after the offence date.

It was the only intact fence protecting his property; it kept out unwanted cattle, predators and humans. Mr. Gilbert admits he had no Ministerial authorization to “use” this fence on Crown land on the offence date. Findings with Respect to the Mount Creek Trespass Lands [ 86 ] I do not find that Mr. Gilbert occupied the Mount Creek trespass lands on the offence date, August 25, 2015. I do find Mr. Gilbert’s ongoing use of the fence on Crown land constituted a “use” for the purposes of Count 2. Accordingly, the Crown has proven beyond a reasonable doubt that Mr.

Gilbert used Crown land on August 25, 2015, for his fence to protect his Mount Creek farm from animals and unwanted guests. Due Diligence 12. Did Mr. Gilbert exercise due diligence? [ 87 ] I have found the Crown has proven its case beyond a reasonable doubt that Mr. Gilbert has committed the following offences: 1. Count 1, as it relates to the use of the works on Mount Creek on Crown land between September 1, 2012 and August 25, 2015; 2. Count 2, use of Crown land on August 25, 2015, without authorization as it relates to the fencing on the Mount Creek farm trespass land.

[88] This is not the end of the inquiry. As these are regulatory strict liability offences, Mr. Gilbert is entitled to advance a defence ofdue diligence. In order to avoid penal liability, Mr. Gilbert must satisfy the court on a balance of probabilities: (

a) he believed in amistaken set of facts which, if true, would render the act or omission innocent; or (

b) he took all reasonable steps to avoid the particularevent. Count 1: The quad bridges on Crown land [89] Mr. Gilbert admits that he used the two quad bridges NRO Roodenburg observed and photographed on May 16, 2013. Heknew these bridges were on Crown land, because in 1976 he attempted to purchase those lands from the Crown as part of a larger 320acre parcel. Mr. Gilbert testified he built the bridges to replace the rotten bridges his Uncle Fred Gilbert constructed many years earlier.

He assumed that if a permit was required for these bridges, his uncle would have obtained one and that he was entitled to replace thebridges. In fact, he went into the Ministry’s office at Williams Lake, B.C. and spoke with either Josh Pressy or Lee Naith. He told themhe had two rotten bridges and asked what he should do about them. They told him to take them out; they also told him be careful. Mr.Gilbert has no recollection of their saying the bridges were not permitted or that he required a permit to replace them. Mr. Gilbertdescribed the attention and care he took to replace the bridges.

The Crown acknowledges the bridges are well built. [90] At some point, NRO Roodenburg told Mr. Gilbert he required a permit for the bridges. It is not clear when this occurred. I inferfrom Exhibit 17, it would have been sometime after NRO Roodenburg discovered the bridges during his inspection in May and June2013. Mr. Gilbert said he went into the Ministry to apply for a permit on three occasions, including last year. On each of those threeoccasions he was told he could not apply for a permit because he was under investigation. Recently, this has changed.

This year Mr.Gilbert has been allowed to apply for a permit for the bridges, which he has done. He paid a $250 non-refundable deposit and submittedan engineered drawing in support of his application for permits for the two bridges. His application is still outstanding. [91] Mr. Gilbert’s defence is a melange of mistake of law, officially induced error and due diligence. I am not convinced it issufficient to avoid liability if he was charged with constructing the quad bridges and cattle guard; however, he is charged with usingthese works. I accept Mr.

Gilbert did exercise due diligence with respect to his use of the quad bridges with its attached cattle guard. Count 1: The Ditch and Culvert on Crown Land [92] Mr. Gilbert admits he constructed this ditch and culvert on the Mount Creek Crown trespass lands. He said it did not occur tohim he would require a permit for this small end

section of a ditch he excavated on his titled lands. He says the works are not causingany harm. In R. v. Desautels, 2015 BCSC 463 , Mr. Justice G.P. Weatherill, adopted a correct the following submission of theCrown: [93] . . . it would be a mistake in law to acquit the respondent due to lack of familiarity with permit requirements. The requirementfor government permission flows from the Water Act in the charging

section which makes it an offence to make changes without lawfulauthority. [94] Mr. Gilbert said that NRO Roodenburg has been troubling him over the various encroachments and improvements on Crownland associated with his three farms for the past seven years. In my view, by October 2012, Mr. Gilbert ought to have known or at leastinquired about a permit. This he did not do. I find that Mr. Gilbert did not exercise due diligence with respect to the ditch and culvertused on Crown land and represented in photographs 1, 2, 4, 6, 7, 8, 9,10. Count 2: Use Crown land [95] Mr.

Gilbert denies constructing the fencing or initiating the encroachment onto the Mount Creek farm trespass lands. He saysthe Mount Creek farm encroachment and fencing on Crown land has existed since 1956 when his Uncle Fred Gilbert acquired the lands. It appears that historically these trespass lands adjoining District Lot 11826 were simply incorporated into the Mount Creek farm andcultivated by its then owner or operator as an extension to the title lands. Although Mr. Gilbert acquired title to District Lot 11823 in1993, he did not take over operations of the Mount Creek farm until 2008.

Previously, Fred Gilbert and Wayne Anderson operated theMount Creek farm. Mr. Gilbert has never resided on the Mount Creek farm; however, he hays its cultivated fields and uses its land forcattle husbandry. [96] Mr. Gilbert says the Mount Creek Crown trespass occurred under the “Pre-emption Method” of buying Crown land foragricultural purposes. In order to purchase Crown land, the farmer had to first fence the area of intended purchase and built a habitabledwelling. After the land was fenced, the government official inspected the lands to ensure the improvements had actually been made.

Once this inspection confirmed the farmer had made the required improvements, the land could be surveyed and purchased. [97] Mr. Gilbert says that he had walked with Ministry employees, Josh Pressy and Lee Naith, to show them the original log fencehis uncle built on the Mount Creek trespass lands, as well as the post and wire fence he constructed to replace it. The post and wirefence was built even closer to the private land boundaries then the pre-existing log fence. Exhibit 29 consists of photographs of MountCreek farm’s old log fence and the newer post and wire fence, neither of which Mr.

Gilbert built. [98] Mr. Gilbert sought to prove to the Ministry he did not initiate the Mount Creek farm’s trespass onto Crown land. Exhibit 24 is aletter dated August 4, 2016, which Mr. Gilbert wrote to Kevin Cameron, the Regional Manager of Compliance and Enforcement,Cariboo Region. In this correspondence, Mr. Gilbert explains the origins of the Crown trespass on Mount Creek, Chevans Creek andBluestone Creek farms.

[99] Mr. Gilbert testified that in the fall of 2011, NRO Roodenburg told him he would either have to remove the improvements orpurchase the areas of Crown trespass associated with the Chevans Creek, Bluestone Creek and Mount Creek farms. Since that time, Mr.Gilbert has been trying to do just that. He has attempted to regularize or legalize the historical trespasses with limited success. [100] Mr.

Gilbert has entered into evidence a number letters he has received from and sent to the Ministry and others with respect tohis efforts to purchase the Crown trespass lands. (See Exhibits: 18, 20, 21, 22, 23, 24, 25, 31, 32). He says the Ministry’s practice is toallow farmers to apply to purchase trespass lands. Mr.

Gilbert testified his neighbours on either side of his Bluestone Creek farm, BobGranholm, Bucky Flanagan and Wayne Anderson to the east and Ted and Lorrie Cooper to the west were allowed to purchase theirtrespass lands and were not subject to fines or remediation orders. [101] One of the impediments to Mr. Gilbert resolving the historical trespass is the Ministry’s policy which allows only oneapplication to purchase trespass lands to proceed at one time in the same policy area. As Mr.

Gilbert inherited three farms, all of whichincluded some trespass onto Crown land, this one application at a time policy has hindered his ability to legalize the Mount Creek farmCrown trespass lands. Mr. Gilbert makes reference to this restriction in his September 12, 2016 letter to Ms. Pinette which is marked asExhibit 23 in these proceedings. It is also confirmed in a letter dated March 20, 2015, from Jane A. Nicol, RPF for the Ministry to Mr.Gilbert which was marked Exhibit 30 in these proceedings. [102] I have found Mr.

Gilbert did use Crown lands without authorization on August 25, 2015, as charged by Count 2. Mr. Gilbert, inhis defence, testified as to his efforts to deal with the Crown land trespasses with respect to all three farms he inherited from his fatherand uncles. When Mr. Gilbert testified about his interactions with the Ministry, it was not always clear which of the three farms he wasreferencing. He has not always compartmentalized the farming operations as to a specific site, understandably so, as these farms havebeen in his family since they were first established. Clearly Mr.

Gilbert inherited a regulatory headache, both for himself and theMinistry. He testified about his ongoing effort to purchase the Crown trespass lands on the three farms. He says he has complied withministerial directives restricting his use of those lands. He says it makes no sense to remove the fence on the trespass lands only toreplace them again when he obtains legal title. He is 69 and in failing health; his farming income does not rise above the poverty level;he is not strong enough to remove the fences himself and cannot afford to hire someone to do it for him.

Moreover, this is not somethingthe Ministry seems to require of other similarly situated farmers in the vicinity whose culpability for Crown trespasses was far greaterthan his own. [103] Mr. Gilbert says once he has been ordered to remove the improvements on the trespass lands, not to remove the improvements,but to purchase the lands, and not to remove the improvements, because the Ministry is going to do this and charge him for thedemolition. Again, Mr. Gilbert does not specify which orders applied to which farm. There is, however, no evidence Mr.

Gilbert wasordered to remove the fence on the Mount Creek trespass lands. [104] In my view it was reasonable for Mr. Gilbert’s to assume he was not required to remove the fences on the Mount Creek farmtrespass lands until his application to purchase those lands had been determined. Long before the offence date, Mr. Gilbert had ceasedcutting hay or ranging cattle on the enclosed trespass lands and the Ministry staff had access to those lands.

Despite the Crown’sarguments to the contrary, I find it difficult to believe that on August 25, 2015, there was a compelling need for snowmobilers or huntersto enter upon those isolated trespass lands. [105] I find in the circumstances, Mr. Gilbert did exercise due diligence with respect to his use of the fence and gates on the MountCreek trespass lands on August 25, 2015. Are these proceedings an abuse of process? [106] Mr. Gilbert argues these proceedings are the result of NRO Roodenburg and possibly other Ministerial employees acting in badfaith.

Although he did not frame it in these terms, he argues this prosecution should be judicial stayed as an abuse of process. An abuseof process in a criminal prosecution or a quasi-criminal prosecution is a violation of an accused’s

section 7 Charter right to liberty: R. v.Nixon, 2011 SCC 34 . The abuse of process doctrine is available where there is evidence of: (1) prosecutorial conduct affectingthe fairness of the trial; and (2) prosecutorial conduct that contravenes fundamental notions of justice and thus undermines the integrityof the judicial process. Where an accused argues investigatory misconduct, as in this case, the accused bears the burden of proving theimpugned conduct undermines society's expectations of fairness in the administration of justice. [107] Bad faith is a serious allegation.

It is not simply negligence, oversight or neglect. It implies conscious wrongdoing because ofdishonesty or moral obliquity. In HMTQ v. Ambrosi, 2008 BCSC 886 , Mr. Justice Ehrcke discussed the meaning of bad faithand the evidentiary burden on its accuser. He states in part: [53] . . . . Bad faith has been held to include dishonesty, fraud, bias, conflict of interest, discrimination, abuse of power, corruption,oppression, unfairness, and conduct that is unreasonable.

The words have also been held to include conduct based on an impropermotive, or undertaken for an improper, indirect or ulterior purpose. . . . [54] The allegation of bad faith must be proven by the party asserting it. . . Bad faith in the purchase of trespass lands [108] Mr. Gilbert became involved in imbroglio with the Ministry over the historical trespasses on Crown lands perpetrated by hisfather and uncles. This issue has been ongoing now for six or seven years. Mr.

Gilbert claims the Ministry has not been even-handed inthe manner in which it has dealt with the Crown trespasses by farmers and ranchers in the region. Mr. Gilbert says he has been deniedthe right to purchase the Crown trespass lands associated with his farms where his neighbours to the east and west, who were far moreculpable, have been permitted to purchase their trespass lands. Mr. Gilbert is blameless in that when he inherited the farms, the trespass

was already in existence and had been for decades. Nevertheless he has been burdened with fines and remediation orders and now these charges as a result of this inherited trespass. Furthermore, the Ministry has given him inconsistent and contradictory directives as to what he is to do with respect to the improvements on the trespass lands. Had he been allowed to purchase the trespass lands in a fair and timely manner, these charges would never have been approved and prosecuted. [109] Mr. Gilbert has been instructed to purchase the Crown trespass lands on his three farms, which he is willing and eager to do.

He testified to a number of incidents which he says amount to bad faith. For example, Mr. Gilbert says the Ministry imposes deadlines for his applications which are impossible for him to meet by operation of its own “one application at a time” policy. He is told to apply to purchase one of the trespass land parcels by a specified date, but he cannot proceed with the application because of an outstanding application with respect to another trespass. The Ministry then claims he abandoned his subsequent application because he could not perfect it within the deadline. (See Exhibits 23 and 25). [110] Mr.

Gilbert says that in order to undermine his attempts to purchase the trespass lands NRO Roodenburg and perhaps others in the Ministry have alleged a non-existent First Nation’s interests in the trespass lands. Mr. Gilbert says his family has been working the farms for close to 80 years. Had there been any First Nations presence on these lands, they would have known about it. [111] Mr. Gilbert also says the Ministry has imposed unreasonable cost-intensive prerequisites to his purchasing the Crown trespass lands.

For example, he was initially asked to produce a $5,000 agrologist report to confirm the trespass lands were suitable for agriculture even though the Ministry charged him for hay harvested on these very lands. Mr. Gilbert objected to the $5,000 agrologist report and a $30,000 archaeological survey. I understand from his evidence his objections were heard and these requirement lifted. Exhibit 21 confirms Mr Gilbert has been allowed to purchase the trespass lands associated with the Chevans Creek farm. [112] Mr.

Gilbert sincerely believes he is being treated differently and unfairly with respect to his applications to purchase the trespass lands associated with his three farms. However, in Exhibit 24 (Mr. Gilbert’s August 4, 2016 letter to Mr. Cameron) Mr. Gilbert acknowledges his situation is unique because he owns three farms, all of which encompass some trespass onto Crown land. Even if he was not responsible for the initial trespass, he is its beneficiary. The Ministry is the steward of those public lands and cannot simply surrender title to the trespass lands on any terms Mr. Gilbert demands.

There are multiple competing interests in play which the Ministry must balance, including agricultural, environmental and First Nations’. [113] If these proceedings have interfered with Mr. Gilbert’s application to purchase the trespass lands, as it has with his ability to apply for permits, this collateral consequence has not been brought to my attention. Bad faith in levying fines and remediation orders [114] Mr. Gilbert says NRO Roodenburg has levied fines against him without justification.

He described an incident in which Canfor obtained a harvesting licence for a small grove of dead beetle killed pine enclosed by a fence in the Bluestone Creek farm trespass lands. When Canfor arrived to harvest the trees, Mrs. Gilbert facilitated their access. Canfor decided against harvesting the trees and bequeathed them to Mr. Gilbert. Canfor had paid stumpage on the trees and told Mr. Gilbert he could have the trees for his own use. Mr. Gilbert believed Canfor had the legal right to give him this 33 cubic meters of timber on which it had paid stumpage. When Mr.

Gilbert harvested the trees with Canfor’s consent, NRO Roodenburg fined him $1500 - triple the applicable stumpage fees. NRO Roodenburg justified this extraordinary fine on the basis Mr. Gilbert needed a “Free Use” permit before harvesting the dead trees. [115] With respect to remediation penalties or administrative penalties imposed on Mr. Gilbert, I note in Exhibit 31, Mr. Vanderburgh set out Mr. Gilbert’s right and opportunity for review. This right of appeal would have existed with respect to any fines or remediation orders, including the $1,500 fine NRO Roodenburg imposed as a result of Mr.

Gilbert harvesting the timber Canfor had given him. [116] To the extent Mr. Gilbert asserts these court proceedings overlaying administrative sanctions are unfair, I note that s. 59(9) of the Land Act specifically states that nothing in that

section “limi ts, restricts or derogates from a court's power and jurisdiction in respect of an offence under

section 60 .” I am not aware of any impediment to the Crown prosecuting an offence under the Water Act even though the Ministry is also pursuing administrative remedies. In any event, there is no evidence before me in this case of the Ministry levying fines or imposing remediation orders with respect to the Water Act offence charged under Count 1 of Information 26187-01. Bad faith in officer misconduct [117] Mr. Gilbert allegations of bad faith also encompass NRO Roodenburg’s personal harassment of himself and his family.

This harassment involved: a. conducting perimeter searches of his residence which frightened and upset his teenage daughters; b. using a low flying helicopter to take photographs of his home and family; c. appearing unannounced at his gate and hollering at him and his 15 year old daughter; d. poisoning his reputation with his neighbours by describing him as a dangerous man; e. unreasonably pursuing his brother for a minor trespass on his acreage which adjoins one of Mr. Gilbert’s farms; and f. going onto his Bluestone Creek farm property to investigate without his consent or a warrant. [118] Over the years, Mr.

Gilbert has made a number of complaints about NRO Roodenburg, to the Ministry, various government officials, politicians, the RCMP and Transport Canada. Exhibit 21 is a letter dated August 15, 2014, which Mr. Gilbert received from Gary Townsend the Assistant Deputy Minister. Mr. Townsend indicates he is responding to Mr. Gilbert’s letter of June 17, 2014 to

the Honourable Steve Thomson, Minister of Forests, Lands and Natural Resource Operations about NRO Herb Roodenburg. Mr.Townsend also comments that many of Mr. Gilbert’s complaints against NRO Roodenburg were grieved earlier in a letter to the Premierdated July 16, 2013. Mr. Townsend writes “Many of the officer’s actions you present as vindictive are either standard procedure orprofessional courtesy.” Mr. Townsend goes on to say: Lastly, you seem to hold NRO Roodenburg responsible for your inability to purchase Crown land or receive authorization for bridges,fences and ditches.

NROs have no authority to approve, or deny, permits, grants or tenures of any kind. You have, however, been giventhe opportunity to pursue a Land Act application as part of the determination against you through Remediation order No. 1. DQU 29339. I encourage you to pursue this opportunity if you are still interested. (Remediation Order No. 1 DQU 29339 was not put into evidence but Exhibit 31 suggests it is in relation to the Bluestone Creek farmtrespass lands.) [119] Exhibit 19 is a letter Mr. Gilbert wrote to Mike Petersen on July 13, 2016, setting out four complaints against NRO Roodenburg.

On July 19, 2016, Mr. Cameron advised Mr. Gilbert these complaints were sent to the Compliance and Enforcement Branch Director,Kevin Edquist, for his review. (See Exhibit 32). [120] I have no doubt Mr. Gilbert found NRO Roodenburg’s investigatory methods and enforcement strategies intrusive, offensive,and annoying. This is not an uncommon reaction by persons who find themselves subject of an investigation, regulatory or otherwise. Generally, they prefer the investigator to just leave them alone and go away. Mr. Gilbert believed NRO Roodenburg conduct was illegaland oppressive and complained to various officials.

Mr. Gilbert’s complaints were forwarded to NRO Roodenburg’s superiors for theirreview and assessment. I find Mr. Gilbert has not proven on a balance of probabilities that the manner in which NRO Roodenburgconducted his investigation of these offences constituted bad faith. Bad faith with respect to these proceedings [121] Mr. Gilbert argues these proceedings are the culmination of the Ministry and/or NRO Roodenburg bad faith in dealing withhim. Mr. Gilbert says he has repeatedly asked the Ministry staff to attend at his Mount Creek farm and view the horrific flood damage inspring time.

They claim they are too busy. Instead, the Ministry has initiated these proceedings and accused Mr. Gilbert of divertingMount Creek without ever viewing the flood damage caused by the deforestation of the Mount Creek watershed. [122] Mr. Gilbert says for many improvements, such as the bridges, ditch and culverts, he was not aware at the time of theirconstruction he required permits. When NRO Roodenburg told Mr. Gilbert he needed bridge permits, he tried to apply for them but wasrefused for no better reason than he was under investigation. Mr. Gilbert was thereby forced into perpetual state of non-compliance.

Hecould not obtain permits for the bridges because he was under investigation for not having the permits; if he tried to remove the bridges,he would be “making changes in and about a stream” without authority. [123] Similarly, Mr. Gilbert does not understand why he has been charged with using or occupying Crown land when he has eitherpaid for a hay-cutting tenure on the trespass lands, occupational rent, or avoided using them entirely. He cannot understand why hecould not have a permit for the fences on his Mount Creek property pending the finalization of his purchase. [124] The Ministry did not provide Mr.

Gilbert with any reason for refusing him the opportunity to apply for permits to bring hisminor violations into compliance beyond the fact the matters were under investigation or before the court. Although I found Mr.Gilbert’s effort to try and regularize his trespass and bridges established due diligence, I am not prepared to say the Ministry acted in badfaith. [125] Mr. Gilbert believes these proceedings are profoundly unfair. In his view, his ancestors created the farms in an era when thegovernment encouraged pioneers to forge a family farm in the wilderness with a pick, an axe, a shovel, swede saw.

Times have changed.Now, he says, mega logging, mining and hydro projects cause devastating environmental damage with impunity. They are too big, toowell-lawyered to pursue. Meanwhile, he, a small-time subsistence farmer, is harassed and fined and charged over minor historicalinfractions, most of which were not of his doing. [126] The Crown did not call any evidence contradicting Mr. Gilbert’s allegations of bad faith. Even so, I do not find theseproceedings have been brought in bad faith. Neither the Ministry nor NRO Roodenburg charged Mr. Gilbert with offences he now faces.

In British Columbia it is the Crown Counsel who approved and prosecuted these charges. Absent conduct amounting to an abuse ofprocess, commencing and prosecuting offences are acts of core prosecutorial discretion which are generally beyond the reach of thecourt: R. v. Nixon , 2011 SCC 34 ; Krieger v. Law Society of Alberta, 2002 SCC 65 . I find nothing in the conduct ofthe Crown which would constitute an abuse of process. [127] In

summary, I do not find that the Ministry or NRO Roodenburg or the Crown acted in bad faith or in such a manner thatcontravenes fundamental notions of justice and thus undermines the integrity of the judicial process. Accordingly, I reject Mr. Gilbert’sargument for a judicial stay for these proceedings. [128] It seems Mr. Gilbert is experiencing a cultural disconnect from the isolated independent farms of yesteryear and today’s highlyregulated environment. I say this because in his submissions, Mr.

Gilbert accuses the Ministry of having “their secret laws hidden awayin their computers that never have been seen by the everyday farmers/ranchers of this province and then pounce upon us after five yearsof investigations.” Both the Land Act and Water Act have been around for over 100 years. Mr. Gilbert testified that long ago his fatheralerted him to the need to purchase the trespass lands associated with Chevan’s Creek. Mr.

Gilbert learned of the Mount Creektrespasses 40 years ago when he tried to obtain a 320 acre Crown Grant for lands adjoining those of District Lot 11826. [129] It was only on February 29, 2016, the Water Act was replaced with the Water Sustainability Act, SBC 2014, c. 15. In Saik’uzFirst Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc., 2015 BCCA 154 , Mr. Justice Tysoe, for the unanimous court,

discussed the extinguishment of riparian rights. He states: [45] Shortly before the end of the 19th century, the Province enacted the Water Privileges Act, S.B.C. 1892, c. 47, which vested inthe Province all water remaining unrecorded and unappropriated as of April 23, 1892. In Cook v. Corporation of the City ofVancouver, (UK JCPC), [1914] A.C. 1077, 18 D.L.R. 305, the Privy Council held that the effect of the Act was to takeriparian rights away from land owners. [46] In 1925, the Water Act Amendment Act, 1925, S.B.C. 1925, c. 61, amended the Water Act, R.S.B.C. 1924, c. 271, to replace s. 4with the following: 4.

The property in and the right to the use of all the water at any time in any stream in the Province is for all purposes vested in theCrown in the right of the Province, except only in so far as private rights therein have been established under special Acts or underlicences issued in pursuance of this or some former Act relating to the use of water. …

Section 2 of the current version of the Water Act is to the same effect. [130] I hope that eventually Mr. Gilbert will find common ground with the Ministry so his modest farming operations can prosper freeof conflict with those whose job it is to ensure the public lands, forests and waterways endure for the benefit of present and futuregenerations.

DISPOSITION [131] As to Count 1, I find you guilty of using works, namely, a ditch and culvert on Mount Creek without authority. [132] As to Count 2, I find you not guilty of using Crown land on August 25, 2015. [133] As to Count 3, I find you not guilty of occupying Crown land on August 25, 2015. ________________________ J. Doulis Provincial Court Judge Province of British Columbia