R. v. Eyben Date:, 2013 BCPC 300

Citation: R. v. Eyben Date: 20131003 2013 BCPC 0300 File No: 3441-1 Registry: Pemberton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRETT MICHAEL EYBEN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE CHALLENGER Counsel for the Crown: J. Riddle (as Agent for J. Cryder) Counsel for the Defendant: G. Diamond Place of Hearing: Pemberton , B.C. Date of Judgment: October 3, 2013 [ 1 ] THE COURT: On August 1st, 2013, Brett Michael Eyben pleaded guilty to a charge of killing a grizzly bear on November 17th, 2011, at a time not within open season contrary to s. 26(1)(

c) of the Wildlife Act . The offence occurred in a wilderness area near Pemberton where the taking of grizzly bears is not permitted at any time. A second count of failing to promptly report the accidental

killing was not proceeded with, but the circumstances were put before the court for consideration on sentence. [ 2 ] Mr. Eyben was hunting in the area for deer. He was properly licenced in all respects and also possessed a valid tag for taking a black bear. The grizzly bear was first seen from some distance away walking on a forestry road near to where Mr. Eyben and his hunting companion were seated in their vehicle. Others who were present in the area reported that it was difficult to determine if it was a large black bear or a grizzly.

Its fur was very dark brown and there was heavy snowfall on the ground so the bear's paws were not visible. [ 3 ] Before confirming which species of bear it was, Mr. Eyben got out of his vehicle and proceeded down the road toward the bear and lay in wait in the bushes by the roadway. This activity falls within the definition of "hunting" as he was in possession of a firearm; see s. 1 of the Wildlife Act . According to his companion who was watching through his rifle scope, the bear was relaxed and it was waddling serenely toward where Mr. Eyben was situated when it was shot.

The cartridge from the bullet was found 39 metres from where the bear was eventually killed. [ 4 ] Mr. Eyben says that when the bear appeared around a bend in the road, it began heading toward him and so he stood and yelled and waived his rifle over his head. The bear continued walking toward him and he panicked and shot it. The bear was not immediately killed and tried to climb a bank across the road. Mr. Eyben then approached and fired a second shot which killed the bear. He said it was only at that time that he realized it was a grizzly.

This admission makes clear that he was not sufficiently well informed to enable himself to properly identify which species of bear it was even in close proximity to it. [ 5 ] A report was made to the RAPP (Report All Poachers and Polluters) line at 3:45 p.m. on the 17th by other hunters. Conservation officers confirmed the killing of the bear and located the carcass by 7:00 p.m. that day.

The claws of the bear had already been taken by unknown persons and it is believed that First Nations persons had placed an offering of dried fish and sage by the carcass. [ 6 ] Prompt reporting of accidental shooting or killing of wildlife in defence is important for many reasons including the need to track and kill any wounded animals and to allow for preservation of the carcass.

Section 75 of the Act states:

(1) A person who kills or wounds wildlife, other than prescribed wildlife, either by accident or for the protection of life or property, must promptly report to an officer (

a) the killing or wounding, and (

b) the location of the wildlife.

(2) A person who fails to report as required under subsection (1) commits an offence. [ 7 ] Mr. Eyben did not report the killing of the bear until November 19th at 10:00 a.m. At that time, he was not forthright with the Conservation officers as he reported that the grizzly was expressing aggression and ran toward him. He said the bear was 30 feet away when he fired. His account of the events changed in a subsequent statement. [ 8 ] In my view, it is also significant that initially his hunting companion and others advised him not to report the killing.

By the time of his reporting, the killing of the grizzly had been broadcast and resulted in notable public outcry. Mr. Eyben was otherwise cooperative with the investigation. [ 9 ] The grizzly bear was a dominant male which was estimated to have weighed 800 pounds when alive. It weighed 726 pounds when the carcass was weighed after significant loss of blood. Grizzly bears differ physically from black bears in size as the average weight for a black bear is 250 to 300 pounds.

Grizzly bears also have a distinctive square head and a hump behind their heads and long claws. [ 10 ] This bear was of particular importance to a reintroduction program in the area where the grizzly is considered a species of concern. The Conservation officers determined that this bear was 20 years of age and in the prime of life. Examination of DNA collected in the area through fur samples establishes that this bear ranged over 500 square kilometres and mated with at least four females in several isolated pockets of grizzly population which is important to the strengthening of the gene pool.

Antecedents [ 11 ] Mr. Eyben is now 33 years of age. He was born and raised in Surrey. His parents separated when he was age seven and he has one full sibling and three half-siblings. He resided with his mother who was involved in a long-term abusive relationship, during which he was exposed to violence in the family home. The family also moved frequently and lived in rough neighbourhoods. [ 12 ] Despite these difficulties, he graduated high school at the top of his class. He has been self-supporting since his teen years. He is a qualified top level ski instructor. He has worked in the summers as a rafting guide.

For three years, he ran a non-profit organization which provided underprivileged children with the opportunity to engage in outdoor activities. More recently, he started a home-building business which is now his primary employment. He estimates his income is approximately $50,000 per year gross. He married in 2002 and he and his wife have two young children. His wife is employed and earns approximately $40,000 a year gross. [ 13 ] A number of letters of reference were filed with the court which confirmed Mr. Eyben's otherwise excellent character.

They also support that he is a normally cautious and responsible hunter. He hunts for sustenance only and ensures that all parts of any animal

killed are consumed or used. [14] As a child, he became estranged from his father who was an avid hunter and fisher. He reconnected with his father in his mid-20s by learning to hunt with him. His father taught him never to wait until it is too late when faced with threatening behaviour fromwildlife. [15] The aggravating factors in this matter are the failure of Mr. Eyben to confirm the species of bear before he began hunting.

Theresult was that he put himself in a position which would require him to shoot the bear to preserve his own safety when it approached hislocation regardless of what species it turned out to be. His carelessness in this regard resulted in the loss of a dominant male which hadbeen playing a vital role in the reintroduction program underway. [16] It is also aggravating that he failed to promptly report the killing and that he misrepresented the circumstance when he first didso. [17] The mitigating circumstances are that Mr.

Eyben's illegal act arose from inexperience and fear and was negligent in naturerather than the wilful taking of a prohibited species. I accept that he initially panicked at the prospect of being held responsible for thecareless killing of a majestic and protected animal.

I have no doubt he would have been acutely aware of the strong publicdisapprobation he would likely face from his community. [18] It is also mitigating that he comes before the court with no history of prior Wildlife Act or other regulatory or firearms violationsand that he has had no contact with the criminal justice system. [19] This matter was outstanding for two years. During that time, he indeed faced significant stigma as well as stress. He waited ayear for charges to be laid and then another year for the matter to be resolved. He entered a guilty plea and I accept as sincere hisexpression of remorse.

He also expressed to the court that he feels great shame and regret. [20] The primary principles of sentence which must be addressed in sentencing for regulatory offences aimed at the preservation andprotection of wildlife are denunciation and general deterrence. In matters involving the taking of wildlife, it is of the utmost importancethat those who engage in hunting self-regulate and self-report as enforcement of the Act and Regulations is extremely difficult due to thechallenges of detection in wilderness areas. [21] The Crown cited the decision of R. v.

Lamouche, et al, unreported, Alberta Provincial Court, Edmonton Registry, December14th, 1998, for the following principles. The task of imposing a fit sentence is the most difficult challenge a judge faces. In our system, with few exceptions, he or she cannothide behind mandatory sentences imposed by statute. Instead, the judge is required to choose among the options provided by thelawmaker, all the while attempting to do justice to each of the competing interests involved. It is an obligation more easily expressedthan fulfilled.

While both the circumstances of the offender and of the offence itself must be weighed in choosing an appropriatesanction, judges do not always make it clear that the objectives of the legislation being enforced are an essential part of the frameworkwithin which that choice must be made. In that regard courts have long recognized that the provincial Wildlife Act and federal statuteslike the National Parks Act ... have, as one of their objectives, the management and ultimately the preservation of the wildlife resource.Mr.

Justice McClung, for the Alberta Court of Appeal, articulated the importance of that task in R. v. Mota (1992) 1991 ABCA 188, 117 A.R. 42 at p. 43 when he said, 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. [22] Later, the court said as follows: As has been pointed out elsewhere, wildlife offences are easy to commit and hard to detect. It is virtually impossible to adequately policethe large geographical areas open to the hunter.

The illegal hunter often operates in sparsely populated areas at a distance from mainhighways. He or she usually has no qualms about hunting under cover of darkness. Perhaps more than in any other area of lawenforcement, wildlife officers depend on tips from concerned citizens to extend their reach further than would otherwise be possible.Where the chance of discovery is small, temptation increases.

That is why general deterrence, usually expressed by high fines even forfirst offenders, plays ... a significant role in sentencing for wildlife offences. [23] There is no minimum punishment prescribed for this offence and the maximum fine is $50,000. The Crown submits that amonetary penalty in the range of $10,000 to $12,000 is appropriate given the aggravating circumstances of the offence.

They are alsoasking for a prohibition against any hunting for a period of three years pursuant to s. 84.1(1)(a), forfeiture of the firearm used pursuant tos. 84(6.1)(a), and forfeiture of the carcass of the grizzly pursuant to s. 84(6)(4.3). [24] Mr. Eyben asked the court to impose a fine of $5,000. He submitted that to impose a very high fine would result in huntersbeing deterred from self-reporting accidental killings.

I am unable to accept this submission as correct in principle as those whopromptly and accurately self-report should receive a lesser penalty as full and forthright compliance is properly considered as amitigating circumstance on sentence. A strong message must be sent that those who fail to report will face a much higher penalty thanthose who comply with the Act and Regulations. [25] The Crown provided a number of cases to assist in determining the appropriate range of sentence for similar offences andsimilar offenders. Unfortunately, there are few such cases available.

I also note that the cases cited below are from a period before themaximum was raised from $25,000 to $50,000.

[ 26 ] R. v. Bechard , unreported, B.C. Provincial Court, Surrey Registry 106105-01-C, May 29th, 2000, is a case involving the trafficking in bear parts. In that matter, a 30-day jail sentence was imposed and a $3,500 fine on "each count." The case does not set out how many counts were sentenced for. However, I infer there were at least two and that the fine, therefore, in that matter amounted to $7,000 plus the jail penalty. [ 27 ] R. v. Bergen , unreported, Quesnel Registry 21208, October 9th, 2003, is a decision of the Provincial Court after a trial.

It involved a similar offence, being the killing of a grizzly sow and two cubs and a similar offender. The killing was promptly self- reported. A fine of $8,000 was imposed. In that matter, the grizzly was not a species at risk in the area where taken. [ 28 ] R. v. Cadorette and Haines, is a decision of this court, unreported, Prince George Registry C01025-C, July 20th, 1998. It also involved the killing of a grizzly sow and cubs and a failure to self-report. A fine of $13,500 was imposed on offenders of otherwise good character. [ 29 ] Finally, R. v.

Bell et al is a decision of this court, unreported, Abbotsford Registry 11646, April 29th, 2002. Again, it was a case involving the killing of a grizzly sow and two cubs and offenders of good character.

A fine of $6,000 was imposed on each offender. [ 30 ] I find that the Bergen case has provided the greatest assistance to me in determining an appropriate fine in this matter, however the maximum fine has been increased since the time Bergen was decided from $25,000 to $50,000. [ 31 ] Taking into account all the circumstances of this offence and this offender and balancing the aggravating and mitigating factors, I find that a monetary penalty of $10,000 is appropriate. [ 32 ] That fine will be allocated between a fine and a donation, and I am sorry, I do not -- did Mr.

Cryder give you the information or the order? [ 33 ] MS. RIDDLE: There is a draft order, yes [ 34 ] UNIDENTIFIED VOICE: There is a draft order, and it is page 2. [ 35 ] THE COURT: Is it correct that it can be as low as $1 in the fine? The cases seem to indicate that. [ 36 ] MR. DIAMOND: I hope so. [ 37 ] CONSERVATION OFFICER PETER BUSINK: Typically, it is $100 is what I have seen with some of them. [ 38 ] THE COURT: Oh, I am sorry, sir, you are one of the Conservation officers? [ 39 ] CONSERVATION OFFICER PETER BUSINK: Yes, Conservation Officer Peter Busink.

Typically, the minimum fines that I have seen in terms of fine versus Habitat Conservation Trust Fund is $100 for the fine. [ 40 ] THE COURT: $100, okay. Thank you. [ 41 ] Now, Mr. Diamond, with respect to the hunting prohibition, Mr. Cryder was seeking a three-year prohibition, but I take it your client has already effectively been prohibited for two years? [ 42 ] MR.

DIAMOND: Yes, and that was part of the submission I made, was that should be taken into consideration if Your Honour felt the need to do three years, then consider that he had already served two, effectively. [ 43 ] THE COURT: Yes, and I agree that I will now impose a further one-year prohibition from hunting. [ 44 ] So the order will be that -- and what about time to pay? It is also set out in the order here. [ 45 ] MR. DIAMOND: Well, my instructions are that Mr. Eyben's plan all along was to borrow the money and pay it right away.

I perhaps could just simply ask for two to three months just in case, and he can always come back to court and seek an extension if the borrowing does not work. [ 46 ] THE COURT: So January, February? [ 47 ] MR. DIAMOND: February 1st? [ 48 ] THE COURT: All right. February 1st, 2014. All right, and of course, I am also ordering the forfeiture of the bear carcass as well as the -- this does not cover forfeiture of the firearm. [ 49 ] MR. DIAMOND: It does on the last -- I think it is the last part. [ 50 ] THE COURT: Oh, all non-wildlife items. [ 51 ] MR.

DIAMOND: And I spoke -- if I may, Your Honour, I spoke to a conservation officer and you may recall that somebody from the local Native community had indicated that, if possible, they can use the carcass and parts for ceremonial things and other things as part of their traditional culture. I spoke to the conservation officer and he said that they do have some decision-making power collectively -- he and his colleagues have decision-making power in that regard and he prefers that as an option and what to do with the carcass. [ 52 ] THE COURT: Do I provide for that?

[ 53 ] MR. DIAMOND: I -- [ 54 ] THE COURT: Though once it is in their hands, they then have the discretion to deal with it as -- [ 55 ] MR. DIAMOND: Yes, I do not know that Your Honour -- [ 56 ] THE COURT: -- they see fit. [ 57 ] CONSERVATION OFFICER PETER BUSINK: That is correct, yes. [ 58 ] THE COURT: Well, I am sure the local First Nations people will appreciate -- all right. That is my decision in the matter. I do not think there are any other ancillary orders or other things that need to be addressed having dealt with that. [ 59 ] MR. DIAMOND: The other count? [ 60 ] THE CLERK: Count 2? [ 61 ] MS.

RIDDLE: Direct a stay of proceedings on Count 2. [ 62 ] THE COURT: Oh, and I will order a transcript of the proceedings, Madam Clerk, the reasons on sentence. [ 63 ] THE CLERK: Yes, Your Honour. [ 64 ] MR. DIAMOND: And if I could just confirm, does Mr.

Eyben need to sign anything or does the order stand as it is? [ 65 ] THE CLERK: Well, is he fined $10,000 or five -- $100? [ 66 ] THE COURT: Sorry, did I make a mistake? [ 67 ] THE CLERK: Sorry, he was sentenced to pay a -- [ 68 ] THE COURT: No, he is -- [ 69 ] THE CLERK: -- fine of $10,000 with respect to -- so, sorry -- [ 70 ] THE COURT: Yes. [ 71 ] THE CLERK: -- should that be $100 and then -- [ 72 ] THE COURT: No, it is $10,000 -- oh, no. Sorry, the fine is $100.

Is that -- [ 73 ] THE CLERK: Sorry, and then the other portion of the fine will be paid out -- paid in and out to the benefit of -- but Court Services will receive $100. [ 74 ] THE COURT: Okay, so it is fine of $100 -- oh, yes, okay, and in addition, the $9,900 -- [ 75 ] THE CLERK: $900. [ 76 ] THE COURT: -- and that math is correct, is it not? [ 77 ] THE CLERK: Thank you. [ 78 ] THE COURT: Thank you. [ 79 ] THE CLERK: Okay, there will be a fine order, then, for $100 -- [ 80 ] MR. DIAMOND: That he has to sign. [ 81 ] THE CLERK: -- so he will have to sign. [ 82 ] MR.

DIAMOND: Okay, thank you. [REASONS FOR SENTENCE CONCLUDED]