R. v. Beaulieu, 2015 MBPC 24

R. v. Beaulieu Citation: 2015 MBPC 24 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) Heather Leonoff, Q.C. and Darrin Fenske, for the Crown ) - and – ) ) ) Ellis James Beaulieu ) ) Jeffrey R. W. Rath, for the Defendant ) ) Judgment delivered: ) June 22, 2015 FINLAYSON, P.J. Introduction [ 1 ] The accused is charged with two offences under The Wildlife Act of Manitoba. These charges are: A.

On or about October 27, 2012 in the Rural Municipality of Silgunes, in the Province of Manitoba, did unlawfully contravene Section 12(1) of The Wildlife Act by, at night use lighting or reflecting equipment for the purpose of hunting, killing, taking or capturing a vertebrate animal or attracting or confusing a vertebrate animal for the purpose of hunting, killing, taking or capturing it, and did thereby commit an offence contrary to

Section 13 of The Wildlife Act. B. On or about October 27, 2012 in the Rural Municipality of Silgunes, in the Province of Manitoba, did unlawfully contravene

Section 33(

a) of The Wildlife Act by, hunt wildlife on private land without the permission of the owner or lawful occupant of the land, and did thereby commit an offence contrary to section 36(1) of The Wildlife Act. [ 2 ] In the vernacular these offences are hunting on private land without permission and hunting using a night light. Both of these offences are alleged to have occurred near Ashern, Manitoba on October 27, 2012. [ 3 ] The Crown alleges that in the early morning hours of October 27, 2012, the accused Mr.

Ellis Beaulieu contravened the sections of The Wildlife Act previously referred to and should be convicted accordingly. [ 4 ] At issue for the court to decide is whether the accused was indeed hunting within the definition of The Wildlife Act. If the court finds that the accused was hunting then there are two other issues the court must deal with. Firstly, was the accused permitted to hunt on the land in question by virtue of his claim that he had previously hunted on that

section of land for many years; Secondly, was the accused permitted to hunt with a night light by virtue of his aboriginal status. [ 5 ] As in most cases, the facts of this particular case are particularly important. In examining the facts the court must remember that the onus is on the Crown to prove all of the elements of each charge beyond a reasonable doubt. In addition, even though the charges here are under a Provincial Statute and not the Criminal Code ¸ the accused did testify so the court must remember to apply, in my opinion, the principles enunciated in the Supreme Court of Canada decision of R. v.

W.D. Therefore I will deal with the R. v. W.D. case at the appropriate time. [ 6 ] The Crown relies on the evidence as agreed to by counsel, the exhibits filed and the evidence of Conservation Officer Carmichael.

Officer Carmichael’s evidence is that he was watching the property in question when a truck in which the accused was a passenger started coming down March Road, turned on a spotlight and drove into the field which is the property of Judith Lynn McDougal. [ 7 ] According to Carmichael the light illuminated some cattle that were present in the field and the light also swung by some deer that were present as well. The vehicle then went to the end of the property, turned around and came back off the property and onto the road again, all the way the spotlight was continuing to be shone.

The vehicle was then stopped by Officer Carmichael and his partner.

The rifle was located in the backseat of the vehicle. It was unloaded. A magazine for the rifle was also seized. While I did not hear any direct evidence from the Crown witnesses on this point, according to the accused the magazine was being stored in the glove compartment of the vehicle. Again, according to the accused, the magazine was empty although he admitted that he did have ammunition in his possession for the magazine. [ 8 ] The accused was apprehended by the officer and the weapon, ammunition and spotlight were seized. [ 9 ] During argument, I advised the Crown, Ms.

Leonoff, that I had difficulty accepting the proposition that based upon the facts presented that the Crown had proven beyond a reasonable doubt that the accused was hunting. [ 10 ] The Crown Attorney quite properly pointed out to the court that the definition for hunting – as contained in

Section 1 of The Wildlife Act is quite broad and includes chasing, driving, flushing, attracting, pursuing, worrying, following after or on the trail of, searching for, shooting at, stalking, or lying in wait for wildlife, whether or not the wildlife is then or subsequently captured, killed, taken or wounded. Quite clearly the

section is intended to include a wide variety of activities relating to the hunting of wildlife. [ 11 ] The Crown therefore argues that it is their respectful submission that at the time in question Mr. Beaulieu and his partner were searching for wildlife and is therefore guilty of the offence as charged. [ 12 ] I have had the time to look at Webster’s dictionary for the definition of searching and there are three different or possible

definitions provided:

a) diligent and thorough in inquiry or investigation;

b) having keenness and forcefulness and penetration in thought;

c) exploring thoroughly. [ 13 ] Regardless of the option you employ, it is clear to me that searching clearly involves something more than just looking or looking for something. [ 14 ] The facts placed before me by the Crown – the time of day being 2:30 a.m.; the location of the alleged offence, that is, an open field where wildlife are actually seen; the use of the spotlight to highlight and possibly freeze potential targets; the location of the gun in the cab portion of the truck; and, the statement of Mr.

Beaulieu himself – all of these things are certainly sufficient for the court to be satisfied that there is a prima facie case that the accused and his friend were searching for wildlife at the relevant time. [ 15 ] However, in this particular situation, the accused has given evidence under oath. He testified that he never intended to shoot anything in the field or from their location on the highway just before he was stopped by Officer Carmichael. [ 16 ] Mr. Beaulieu`s evidence was that he and his partner were done hunting for the night. They had started hunting at 7:30 p.m. and it was now 2:30 a.m.

He stated that he was tired; he had taken the magazine out of the gun and the bullets out of the magazine. He placed the magazine in the glove compartment and he placed his empty rifle in the backseat of the truck. This is, in my view, the uncontradicted evidence before the court. Mr. Beaulieu further testified that they were headed to the field in question to relieve themselves and while doing so his friend told him to shine the spotlight at something he sighted. Mr. Beaulieu did so. He spotted a doe and a calf. He said he had no intention to shoot either one. [ 17 ] Based upon the test enunciated by Mr.

Justice Cory, in R. v. W.D. , it is my understanding that if one of two situations exists; either I believe Mr. Beaulieu or his evidence raises a reasonable doubt, then I should acquit Mr. Beaulieu. [ 18 ] Why should I accept Mr. Beaulieu’s evidence? Firstly, he gave his testimony openly and without hesitation. Secondly, he was not contradicted by Crown counsel with respect to any critical issues or facts. Thirdly, Mr. Beaulieu`s evidence, as to his intention or lack thereof, was corroborated by the proven facts of the case. The empty gun was in the backseat of the truck.

The empty magazine was in the glove compartment. If it was his intention to continue to hunt, then in my view he had not placed himself in a very prepared position to do so – and that did not change until the very time of his arrest. It is not a situation where he was found fumbling for his gun or his magazine or both. Mr. Beaulieu had taken no steps to act upon the seeing or spotting of wildlife at the time of his arrest. [ 19 ] Is it suspicious that Mr. Beaulieu and his partner drove into the field to go to the bathroom? Yes, although we do know that there was traffic on Marsh Road even at this late hour.

Is it suspicious that he still had the spotlight on at the time he was stopped? Yes, but again, his uncontradicted testimony is that they keep the spotlight in the front of the truck at all times. [ 20 ] Were Mr. Beaulieu and his partner still looking for wildlife? Possibly. Were they searching for wildlife as defined by

Section 1 of The Wildlife Act ? I do not believe so. One of the cases referred to by the Crown is R. v. Daniels et al , a 1984 decision of the Manitoba Court of Appeal. In that case the accused were hunting at night using a spotlight and the two rifles were among them at the time of their arrest. [ 21 ] In my opinion, the positioning or readiness of the firearm or weapon in question is an essential component of the offence.

Short of some expert testimony from the Crown that the use of a spotlight could freeze a target for a long enough period for the accused to obtain the weapon and the magazine, load the magazine with bullets, fasten it to the weapon and take aim – short of that kind of evidence, which is not before me, it is difficult for the court to reject the evidence of Mr. Beaulieu. [ 22 ] The inference that was drawn in the Daniels case was that the light was shone in furtherance of an intention to shoot deer if they could be located and attracted by the light.

However, as I said earlier, in Daniels the rifle was found amongst the accused at the time of their arrest. Presumably although it is not specifically stated, the weapon was loaded and ready to be used in Daniels . [ 23 ] In my view, I cannot draw the same inference in the present case unless I reject the evidence of Mr. Beaulieu or at least find him

uncredible on the issue of what his intention was when he was in the field in the early morning hours of October 27, 2012. [ 24 ] In my opinion, Mr. Beaulieu’s evidence does raise a reasonable doubt as to what his intention was while in the field and on Marsh Road in the early morning hours of October 22, 2012 and accordingly, I do find him not guilty on both charges. “ORIGINAL SIGNED BY:” FINLAYSON, P.J.