R. v. Dyck, 2019 BCPC 341

Citation: R. v. Dyck 2019 BCPC 341 Date: 20191216 File No: 4043-1 Registry: Pemberton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KENNETH FRANKLIN DYCK BRIAN ANTHONY MCCORMICK ORAL REASONS FOR SENTENCE (RE THE ACCUSED MCCORMICK) OF THE HONOURABLE JUDGE B. DYER Counsel for the Crown: J. Cryder Counsel for the Defendant: H. Lucky Place of Hearing: North Vancouver, B.C. Date of Hearing: December 16, 2019 Date of Judgment: December 16, 2019

[ 1 ] THE COURT: I have before me this morning Brian McCormick, who has pled guilty to two counts on an information before the court, both alleging offences under the provincial Wildlife Act . He has pled guilty to Count 1 on the information, and I will summarize, in that he did hunt a moose at a time not with an open season, contrary to s. 26(1) (

c) of the Wildlife Act . As well, he has pled guilty to Count 3 on the information, which alleges that he made a false statement when he was required to provide information to an officer engaged in the discharge of their duties under the Wildlife Act or Regulations , contrary to s. 82(1) (

d) of the Wildlife Act . [ 2 ] The facts of this matter are not greatly in dispute. On November 10, 2017, Mr. McCormick, and a then friend, a First Nations individual by the name of Mr. Dyck, elected to go hunting in the Gold Bridge area. They both lived in or near Abbotsford in the Province of British Columbia, and drove in Mr. McCormick's truck to an area outside the town of Pemberton in the Province of British Columbia.

They had with them appropriate information, in the sense that they carried not only a synopsis setting out the rules and regulations that applied to all hunters in the Province of British Columbia, but as well as a back-road atlas that would assist them in locating precisely where they were at any given point in time. That ability to do so is important because there are management areas within the Province of British Columbia where hunting is sometimes permitted, or sometimes not permitted at all. [ 3 ] Mr. Dyck and Mr.

McCormick both had what is referred to as a basic resident hunting licence, which permitted them to hunt for a moose, but only Mr. McCormick had a further licence or authorization that permitted him to hunt a bull moose of any size, however, only within Management Area Number 3-33. Mr. Dyck, by reason of the licence that he held, was only permitted to hunt an immature bull one that rather than having a full set of antler, had only spikes. [ 4 ] On November 10, 2017, when on a very rural road, they sighted a moose on the road ahead. Mr.

McCormick apparently audibly yelled that the animal had “spikes” in which case, it would have been an animal that might have been taken by Mr. Dyck, but for the fact that the two men were then in Area Number 2-11, which was a fully closed area, and no hunting was permitted therein. What then happened was that Mr.

Dyck obtained his rifle and ultimately brought this moose down, killing it after a number of shots were fired. [ 5 ] When the men approached the animal, they saw immediately that it was contrary, I assume, to their earlier belief -- not an immature animal, but what is referred to as a three-point bull moose, one that Mr. Dyck had no lawful ability to take, both because of its maturity and because, they were in Area Number 2-11, which was a fully closed area where no hunting was permitted. What next occurred is that Mr.

McCormick made a decision that he would cancel his licence by taking out a portion of the licence indicating that it was he who had killed the animal. Again, he was able to take a mature bull moose by reason of the authorities and licences that he carried, but, not within the area where the animal was taken. [ 6 ] A number of witnesses observed various parts of the events that were then ongoing and contacted the Conservation authorities who almost at the time these events occurred, came to know that a breach of the legislation had occurred, in that an animal had been killed in a closed area.

The two hunters, Dyck and McCormick, then butchered the animal, put it on board the McCormick truck, and drove off, only to be apprehended later by the Royal Canadian Mounted Police. At the time they spoke with the police, they did not tell the truth as to what occurred; however, later in time after some reflection, both did ultimately give the correct facts, certainly, to the wildlife authorities. [ 7 ] It appears that Mr. Dyck did so first and, in November of 2017, contacted the wildlife authorities and, on the 21 st day of November 2017, gave a statement accurately setting out what had occurred.

At about this time, it seems that Mr. Dyck and Mr. McCormick were not getting along, may have had some form of falling out, and certainly there seemed to be little, if any, communication that occurred between the two men. Mr. Dyck, I am told, did not contact Mr. McCormick and tell him that he had gone in to speak to the authorities to tell them the truth. [ 8 ] Later, after a further period of reflection, Mr.

McCormick made his own decision, with no doubt some influence on the part of his spouse, that telling the truth was the right way to go under the circumstances and, on the 31 st day of January, he attended at the Conservation office and gave a full statement indicating what had occurred. He did so not knowing that Mr. Dyck had earlier given a statement. However, I am told that on the 31 st of January, the wildlife officers did bring to his attention that Mr. Dyck had done so, and, in fact, drew to his attention certain things that Mr. Dyck had said in his statement for his comment. [ 9 ] In the result, Mr.

McCormick has pled guilty to hunting in a closed area, which is contrary to s. 26(1) (

c) of the Wildlife Act , R.S.B.C. 1996, c. 488 , and, in addition, in not initially telling the truth to the wildlife authorities, he has contravened s. 82(1)(

d) of the same legislation. I should point out for purposes of completeness that s. 26(1) of the Act provides that a person commits an offence if the person hunts, takes, traps, wounds, or kills wildlife, (c), at a time not within the open season. Section 82(1) provides that: A person commits an offence if the person knowingly makes a false statement … (

d) to an officer engaged in the discharge of his or her duties under this Act, if the person is required to provide information under this Act. [ 10 ] There is no disagreement that in this case, I believe pursuant to s. 75 of the Wildlife Act , Mr. McCormick ought at an early opportunity to have indicated to the wildlife authorities that he, I think it fair to say, in error was hunting in a closed area, and that this animal was taken by Mr. Dyck. [ 11 ] The purpose of the Wildlife Act is to protect the wildlife in the Province of British Columbia, and the laws and regulations that are made serve that purpose.

The Conservation Officers who are employed to police the regulatory and provisions found in the Wildlife Act , or made thereunder, are, in my general understanding, few and far between, in the sense that British Columbia is a very large area and there is various kinds of wildlife throughout the province. [ 12 ] In the result, Crown counsel points out that there are, certainly, trust concepts involved in hunting under the Wildlife Act in the wild, in the sense that the hunters must scrupulously comply with the laws in order that the wildlife will be properly managed and conserved for all purposes.

Crown points out that to be untruthful with a wildlife officer is certainly to some extent breaching the trust

that is expected of a hunter in coming clean to explain what has occurred at any given point in time, including simply that somehow a mistake was made in either taking an animal in a closed area, or the wrong type of animal, either within or without a closed area. [ 13 ] The sentencing principles in this case are substantially focused on the concept of general deterrence. I have no reason to believe that this has not been a learning experience for Mr.

McCormick, in the sense that this matter has weighed heavily upon him and has been with him for some time, from the date of the offence to today's date when this matter is finally being disposed of and being put behind him. I have no concerns that there is any need for me to pronounce a sentence that will somehow specifically deter him from doing this sort of thing again. Therefore, the more important guiding principle is general deterrence.

I need by my sentence here this morning to be sending a message to all hunters that if they do not comply with the relevant laws that a certain result will follow if they are caught and convicted. [ 14 ] To his credit, Mr. McCormick did, albeit somewhat late in the day, go in on the 31 st of January 2018, and make a clean breast of things and explain to the Conservation authorities exactly what had happened on the day in question. I have no doubt that he felt considerably better that day having done so.

Likewise, he has accepted responsibly for the matters for which he has pled guilty by doing just that in court today and a two day trial was prevented. [ 15 ] The position taken by Crown as to what a fit and just sentence in this matter would be is that there should be a $1,000 fine with respect to each count to which the accused has pled guilty, and a three-year hunting prohibition, as well as a forfeiture order of all things seized.

What was seized was the remains of the moose taken near Pemberton on November 10, 2017, I am told that with any luck, those remains have been distributed to a First Nations community somewhere in the Lower Mainland area. This is not a fact that is before the court, but it is, nonetheless the methodology that the wildlife authorities sometimes use in cases such as this. [ 16 ] Mr. Lucky, on behalf of the accused, suggests that a fit and just sentence would be a fine of $1,001 and a two-year hunting prohibition.

He does not object to the forfeiture order being made. [ 17 ] Crown points out that there is an interesting aspect to the legislation that I am dealing with this morning, to be found in the creative sentencing provision of the Wildlife Act , where I am empowered not only to make an order prohibiting someone from hunting for a period of time under ss. (a), but pursuant to s. 84.1(1)(e), can direct that the accused before the court pay an amount of money that the court considers appropriate into (ii) or to "the trustee under

Part 3 for inclusion in the trust property, as that term is defined in

section 118."

Section 118 of the legislation contains some

definitions and, more importantly, s. 119 defines what "trust property" is. Generally, this area of the legislation seems to set up a fund, which is managed and the monies that find their way therein, including pursuant to a court order, are used in what is called the Habitat Conservation Trust Fund, which monies are broadly speaking used to assist in the overall management of wildlife in the Province of British Columbia. [ 18 ] Mr.

Lucky proposes that what I ought to do is fine his client the amount of 50 cents on each offence, and make an order that $1,000 be deposited to this trust fund under the provisions that I have alluded to. Mr. Cryder, for the Crown, suggests that it is really up to the court as to what I might do, if anything, in breaking out a portion of the proposed amount of his fine, namely, $2,000. He but did point out to me that my sister judge Bond at an earlier sentencing of Mr.

Dyck, whom I have referred to in these reasons, provided that where he pled guilty as well to counts exactly similar to Counts 1 and 3 on the information before this court, that there would be a dollar fine on each matter and the sum of $250 on each count, for a total of $500, would be directed to go to this trust that I have alluded to. [ 19 ] In my view, a fit and just sentence in this matter would be a fine of $1,500. I think there are some aggravating circumstances in this matter, and they are really twofold; the false cancellation of Mr.

McCormick's licence at the scene and, as well, misleading statements made to the wildlife officers and possibly other authorities, initially.

In my view, there should be a $1 fine with respect to each matter, and the total sum of $1,498 will be directed to be paid, pursuant to s. 84.1(1) (e)(ii) of the Wildlife Act , to the trustee of the trust property or the Habitat Conservation Trust Foundation or $749 on each count. [ 20 ] I am of the view that something somewhat more than the minimum hunting prohibition would be appropriate for general deterrence purposes, and there will thus be a prohibition under the appropriate

section of the legislation of 30 months or 2.5 years, not the three years sought by Crown and, essentially, one-half-year beyond the minimum provision required in the Act . [ 21 ] Likewise, there will be a forfeiture order made as sought pertaining to the items seized by the Conservation officers at the material time in the fall of 2017. [ 22 ] The orders in this case will follow those orders helpfully prepared by Crown counsel, and I have covered the amount of the fines in each cases -- with respect to each count, as well the forfeiture order, the hunting prohibition and the fines and the contribution to the Habitat Conservation Trust Fund, and I think nothing further is required. [ 23 ] These are my reasons. [ 24 ] MR.

CRYDER: And the Crown directs a stay of proceedings regarding all other counts that apply to Mr. McCormick. (REASONS CONCLUDED)