R. v. Ingram, 2023 BCPC 11

Citation: R. v. Ingram 2023 BCPC 11 Date: 20230110 File No: 36834 Registry: Hudson's Hope IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. BENNWARD DALE INGRAM REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D.T. REEVES Counsel for the Crown: S. Cassell Counsel for the Defendant: S. Gerstel Place of Hearing: Fort St. John , B.C. Date of Hearing: November 7, 2022 Date of Judgment: January 10, 2023

[ 1 ] Mr. Ingram has pled guilty to an offence under the Land Act , RSBC 1996, c. 245 , for excavating on Crown land contrary to s. 60(

e) and thus, will be sentenced under the Offence Act , R.S.B.C. 1996, c. 338 . This offence occurred in relation to the Six Peaks Dinosaur Track Site (“SPDT”) near Hudson’s Hope, British Columbia. Mr. Ingram, along with a Mr. McNolty and two other men, used a combination of power tools and heavy-duty hand tools to excavate and remove fossilized dinosaur footprints which formed part of identified dinosaur trackways. Mr.

McNolty earlier pled guilty to this offence and received a sentence of 30 days’ custody, plus a fine of $20,000 and a Victim of Crime Surcharge of $3,000, pursuant to a joint sentencing recommendation. [ 2 ] Here, the Crown seeks a sentence of 30-35 days’ custody plus a fine of $20,000 and a Victim of Crime Surcharge of 15%. Counsel for the defendant urges that a suspended sentence of 12-months’ probation, including 120 hours of community service and a fine of $10,000, would be more appropriate in the circumstances of his client. [ 3 ] The issue before this Court is to determine a fit sentence for Mr.

Ingram. [ 4 ] In determining the sentence to be imposed here, I will address the facts, the law and the considerations I must apply in the following order: A. What is the nature of palaeontological resources and the resultant loss? i. scientific loss; ii. cultural loss; iii. natural resource loss. B. What is the applicable law in relation to sentencing similar regulatory offences? C. What are Mr. Ingram’s personal circumstances? D. What is a fit sentence for Mr. Ingram? A.

WHAT IS THE NATURE OF PALAEONTOLOGICAL RESOURCES AND THE RESULTANT LOSS? [ 5 ] All fossil footprint sites represent palaeontological resources that fall under the general category of natural resources. The SPDT is situated just outside the Tumbler Ridge UNESCO Global Geopark near Hudson’s Hope in British Columbia and is anticipated to be included in the Klin-se-za Provincial Park.

The site was discovered in 2008 and first studied by an international team of palaeontologists in the summer of 2016. [ 6 ] Vandalism of the site was reported in July 2020 and investigation revealed that power tools and heavy-duty hand tools had been used to remove fossilized tracks in six discrete areas, which resulted in collateral damage to additional tracks and areas of track-bearing strata. Upon being designated under the Land Act in 2016, a sign had been posted at the SPDT that stated: PROTECTED SITE This site is designated for its significant paleontological resources.

Research is being conducted by authorized personnel. Damaging site is an offence. The sign was removed and discarded when the SPDT site was damaged. [ 7 ] Surveillance photos and witnesses reported four men driving in two vehicles and using power tools to remove individual tracks from the site over a period of at least 2½ hours. Large slabs of fossil tracks were either removed, or were damaged by being broken up, and were possibly destroyed. The power tools used included a portable generator, air compressor and air chisel, and heavy-duty hand tools including sledgehammers and pry bars. Mr.

Ingram was observed using a sledgehammer and pry bar and other excavation tools. [ 8 ] Investigation determined that Mr. Ingram drove one of the vehicles and Mr. McNolty drove the other vehicle along with the two unidentified men.

The excavation work was halted only when two separate groups of witnesses arrived and began observing the work, at which point the four men packed up their equipment and departed. [ 9 ] No fossil tracks removed from the site have ever been recovered. i. scientific loss [ 10 ] Preliminary studies of the SPDT determined an assemblage of over 500 dinosaur footprints over approximately 750 square metres. These tracks represent diverse dinosaurs from the Early Cretaceous epoch who walked on sandy ground approximately 125-113 million years ago, following which their tracks were fossilized.

The dinosaur tracks include three of the major groups of dinosaurs that lived during that period, specifically: theropods; ornithopods; and sauropods.

[11] The SPDT comprises one of the largest found in Western Canada in more than a generation and is noted for its potential to yielda large dataset. As one of the 10 most important track sites in North America, it is objectively ranked as a “high value” track site onnational and global dinosaur listings. Based on objective scientific, cultural and natural resource indicators, the site was ranked as one ofthe most important in Western Canada and potentially in North America. As a result, on October 17, 2016, the SPDT was awardedprotected status under the Land Act for five years.

This designation prohibits any activity or use other than conservation and preservation. [12] The SPDT is made up of not only dinosaur tracks, but track sequences or “trackways” that represent the passage of a singleanimal and in this instance, represent approximately 56 distinct animal trackways.

Tracks themselves occupy an unusual category ofpalaeontological resource, as, unlike skeletal fossils commonly seen in museums, dinosaur tracks exist on surfaces that themselvesrepresent portions of the ancient landscape that have become part of the current physical and cultural landscape via natural erosion orexcavation. Trackways also evidence how the dinosaur lived, moved, its gait and behaviour.

Damaging and removing an individualfootprint not only destroys that footprint for its scientific value, it also disturbs the integrity of the remaining tracks and landscape andthe series of tracks of which it was part. [13] The composition of the SPDT track-bearing surface is 8-10 cm thick sandstone, which is normally resistant to natural erosion.Due to the damage caused during the illegal excavation, however, it is now far more susceptible to deterioration through naturalprocesses.

Cracks or fractures have been created that will now more rapidly accelerate otherwise natural erosion and as a result, asignificant degree of scientific information has been lost and will continue to be lost as the damage now naturally propagates. ii. cultural loss [14] Fossil footprints such as the SPDT are frequently linked to Indigenous peoples’ traditional stories and form valued parts of theircultural heritage. A Community Impact Statement from the Saulteau First Nations Treaty Rights and Environmental ProtectionDepartment was received.

The statement noted that the destruction of tracks occurred in the Saulteau First Nation’s “backyard” and wasvery disturbing. The SPDT is located on the traditional territory of the Saulteau First Nations and as a result of this destruction, thecommunity feels less safe and their enjoyment of the area as a place of solace or “peaceful enjoyment” is disrupted.

Several additionalFirst Nations cultural locations are found close to the SPDT and community members are now fearful that additional acts of vandalismmay occur in these otherwise remote and culturally important areas. [15] A Victim Impact Statement was also received from Dr. Helm, who, along with two youths, is the person that initially discoveredthe SPDT in 2000, contacted palaeontologists and thereafter, has undertaken his own graduate level palaeontology studies.

As a directresult of his discovery, the Tumbler Ridge Museum Foundation and the Dinosaur Discovery Gallery as a tourist attraction andpalaeontological research centre have been formed. Also as a direct result, financial support from the Dalglish Family Foundation wascombined with support from the area First Nations, local volunteers and international experts to conduct the initial scientific excavationof the SPDT. iii. natural resource loss [16] As a natural resource, a commercial value is often associated with the resource when managed by lawful agencies such asgovernments.

Palaeontological resources are normally only excavated, exploited, or otherwise handled under strict permit and regulation,as the “value” of the resource is supported by remaining in the public domain in perpetuity, in either state museums or formally-protectedareas. Dinosaur footprints when found in trackways such as SPDT are best left and preserved in place, where they serve as both an onsitepalaeontological resource and an educational and interpretative tourist destination. In the case of trackways, this is even more critical, aspublic education and

interpretation of the now extinct animals are made possible through observations of intact trackways. [17] The Saulteau First Nations maintain a community initiative, the Carbon Lake Lodge Restoration Project, in close proximity tothe SPDT. This project is a community initiative and includes an economic development model that would include eco-tours of the fossilsite and as such, the damage to the SPDT has had an immediate and long-term economic impact on their plans. B.

WHAT IS THE APPLICABLE LAW IN RELATION TO SENTENCING SIMILAR REGULATORY OFFENCES? [18] Regulatory legislation exists to protect the public or broad segments of the public from the potentially adverse effects ofotherwise lawful activity, and emphasizes public protection and societal interests over protecting individual interests, deterrence andpunishment for past and inherently wrongful conduct. Regulatory measures seek to prevent future harm through enforcing minimumstandards of conduct and care (R. v. Wholesale Travel Group Inc., (SCC), at p. 219). This said, the leading Canadiancase of R. v.

Terroco Industries Ltd., 2005 ABCA 141, at paras 53 and 60, states that breaches of regulations established to protect theenvironment should emphasize specific and general deterrence. [19] Regulatory offences and crimes do embody different concepts of fault, as the former are directed primarily to the consequencesof conduct and thus normally import a significantly lesser degree of culpability than conviction of a true crime. The concept of fault inregulatory offences is based upon a reasonable care standard and not moral blameworthiness as is found in criminal fault.

This said,regulatory breaches may still create serious harm on large segments of society and thus, sentencing for regulatory breaches should notdownplay the potential harm to the vulnerable, nor the potential for responsibility of the offender (Wholesale at pp. 219-220). [20] Sentencing principles involving environmental offences require a “special approach” (Terroco at para 34). Regulatorypunishments in environmental cases should be and are varied to account with the nature of the affected environment and the extent ofdamage inflicted (R. v. United Keno Hill Mines Ltd., 1980 CarswellYukon 9, [1980] Y.J.

No. 10 at para 11). [21] A significant factor in environmental-offence sentencing is that of culpability, based on the circumstances of what occurred andconsideration of reasonable foreseeability. This can range from a due diligence “near miss” where the danger is obscure through a failureto take reasonable care, to outright intent to breach the regulation regardless of the danger (Terroco at paras 35-37). [22] There are few examples of regulatory prosecution for similar offences. Mr. Ingram’s co-accused, Mr. McNolty, was sentenced to

the maximum fine under the regulation, $20,000, plus Victim of Crime Surcharge, plus a custodial sentence in the mid-range of thatallowed under the legislation, or 30 days. This was pursuant to a joint sentence recommendation of defence counsel and the Crown and inhis brief oral reasons, Judge Fleck noted that given mitigating circumstances before the court, notably an absence of a criminal recordand Mr. McNolty’s demonstrated remorse, the sentence was a fit one (R. v. Bennward Ingram and Austin McNolty, (unreported) October18, 2021, no. 36836-2-C, Fort St. John Registry (BC PC)). [23] Counsel for Mr.

Ingram urged that as this Court is not aware of the mitigating circumstances considered for his co-accused Mr.McNulty, that sentence and the principle of parity thus engaged should be given little weight. That would run contrary to the finding inR. v. Christie, 2004 ABCA 287 , and since adopted by BC courts including R. v. Bingley, 2021 BCCA 444 . There, thecourt emphasized that parity as a principle must be accounted for in all sentences and in particular, where the offence is one of jointventure (Bingley, para 13).

In Christie, the court was faced with a similar situation as this: a co-accused had been sentenced pursuant to ajoint submission. The court there noted that while factors leading to a joint submission that the sentencing court may not be aware ofcomplicated the analysis, ultimately the co-accused’s sentence must still be considered (Christie at para 46). [24] In R. v. Haensel, (unreported) April 27, 2022, no. 35396-1, Cranbrook Registry (BC PC), the offender pled guilty to two countsof removing and trafficking Burgess Shale fossils contrary to the Canada National Parks Act. Mr.

Haensel both sold and donated forscientific study, fossils he personally removed from the site. In sentencing Mr. Haensel, the court noted the seriousness of his offence,involving as it did: one of the most significant fossil finds in the world; the deliberate nature of his acts; Canada’s obligation to conservesuch artefacts for the benefit of future generations; that Mr. Haensel himself was a youthful student of palaeontology and without acriminal record; and that any future in the palaeontology field was now impossible given the convictions.

The court, citing Terroco asthe leading Canadian decision on environmental sentencing, accepted a joint sentence recommendation (“JSR”) and imposed a five-month conditional sentence order (“CSO”) with significant curfew and related conditions. The court also imposed a fine of $20,000 thatwas not the subject of the JSR. [25] Counsel for Mr. Ingram argued to distinguish the sentence imposed in Haensel, suggesting that the acts in that matter were moreserious, yet only a five-month CSO was imposed.

I do not agree with this characterization – a CSO remains a custodial sentence, a“sword of Damocles” with significant restrictions on the offender. Likewise in that case, the offender, through his actions, had sufferedthe collateral consequence of losing a potentially significant career in palaeontology. Likewise, I was urged to accept the reasoningexpressed in R. v. Lee, 2012 ABCA 17 , where at paras 38-39 the court cited R. v.

Proulx, 2000 SCC 5 , for theproposition that courts should be wary of placing too great an emphasis on deterrence when choosing between a CSO and incarceration.Unfortunately here, as conceded by both Crown and counsel, a CSO is not available to this Court as the offence committed was contraryto the Land Act, which, along with the Offence Act, precludes such a sentence (R. v. Naidu, 2017 BCSC 671 , paras 38-41; R. v.Corbett, 2005 BCSC 1437 , paras 22-26; and R. v. Wong, 2017 BCSC 1030 , para 35). C. WHAT ARE MR. INGRAM’S PERSONAL CIRCUMSTANCES? [26] Mr.

Ingram is 39 years old, has a grade 12 education and has no prior involvement before the courts. He and his young familylive in Pincher Creek, Alberta where he works as an excavator operator and is the sole source of support for the family. He currently alsosupports a refugee from the war in the Ukraine and sponsors a Guatemalan child through World Vision. Mr. Ingram frankly admitted tothe court he had no excuse for his actions, that he did not appreciate the importance of the site to the First Nations or science, andexpressed deep remorse for his actions and the damage he created. D.

WHAT IS A FIT SENTENCE FOR MR. INGRAM? [27] The Crown in this matter, citing both general deterrence and parity, is seeking a custodial sentence of 30-35 days, plus a fine of$20,000 and Victim of Crime Surcharge. Crown did provide the sentencing judge’s oral reasons for Mr. Ingram’s co-accusedMr. McNolty; however, was unable to advise this Court of what aggravating or mitigating circumstances were placed before that court inagreeing to the JSR. In contrast, counsel for Mr.

Ingram suggests that a suspended sentence involving 120 hours of community workservice, plus a $10,000 fine, is appropriate, citing the mitigating factors present in Mr. Ingram’s situation. [28] I find as aggravating factors the following: the harm done to the trackways was significant, permanent and will continue to causedamage well into the future as natural erosion is now accelerated through the damage done; actual harm and the degree of that harm, aswell as the potential for harm to the environment, are properly considered as aggravating circumstances at sentencing for environmentaloffences.

This is particularly so where an affected environment is a delicate site not easily rejuvenated, or where the cost of repair ormitigation of damages is significant (Terroco at paras 45, 48-51). [29] The deliberate nature of these acts are also aggravating. Mr. Ingram, in company with others, used heavy-duty hand and powertools to remove fossils from a remote site, causing significant damage to the surrounding trackway over a period in excess of 2½ hoursand only ceasing when they became aware that witnesses were present.

This evidences planning and preparation, effort to obtain thefossils, and an understanding at the time of the wrongfulness of their acts, as they fled the scene once they were aware of being observed. [30] Victims of this offence are particularly wide ranging. Beginning with the Saulteau First Nations, their traditional territory hasbeen damaged, a source of cultural reflection has been interfered with and along with the rest of BC, a potential source of economicdevelopment has been harmed. Next, are those citizens of British Columbia and Canada whose educational opportunities have beenretarded.

Lastly, is the scientific community whose research and insight have been damaged, potentially with longer and more far-reaching consequences as natural erosion is accelerated through the acts of Mr. Ingram. [31] In mitigation, I note the following: Mr. Ingram entered an early guilty plea, which, for an environmental offence, is properlyconsidered a mitigating factor (Terroco at para 39); Mr. Ingram has no prior criminal record; and this Court received numerous letters ofsupport speaking to the uncharacteristic nature of his offence and his otherwise positive character.

In particular, I note a letter from Mr.Ingram’s employer who noted Mr. Ingram as an above-average worker and long-time friend. [32] Where such offences as this are committed, general deterrence must be emphasized. Sites like the SPDT are often in remotelocations that are not easily monitored and rely on courts like this to impose sentences that will give pause to others who may seek to

engage in the same behaviour. Likewise, I must also consider the principle of parity, noting that by imposing a similar sentence to that imposed on a co-accused for the same offence avoids bitterness and resentment that may otherwise be found by the recipient of a harsher sentence and therefore, reduce the chance of rehabilitation ( Bingley at para 14 ).

In so doing, I note that the Honourable Judge Fleck in McNolty at para 4 considered that absent the significant mitigating circumstances before him, a harsher sentence would have been imposed. [ 33 ] Having directed my mind to the circumstances of the offence, to the sentencing decisions cited above that deal with similar acts, and to the circumstances of Mr. Ingram, I find as a fit sentence the following: [ 34 ] Mr. Ingram, you are sentenced on count 1 of the information to a custodial sentence of 25 days. In addition, I am ordering a fine of $15,000, payable no later than January 31, 2027.

The Victim of Crime Surcharge also applies and shall be due no later than January 31, 2027. _____________________________ The Honourable Judge D.T. Reeves Provincial Court of British Columbia