R. v. Tom, 2022 BCPC 116

Citation: R. v. Tom 2022 BCPC 116 Date: 20220623 File No: 54982-1 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. MICHAEL THOMAS TOM CORRIGENDUM REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. GUILD Counsel for the Crown: B. Petherbridge Counsel for the Defendant: G. Verdurmen Place of Hearing: Vernon , B.C. Dates of Hearing: March 4, April 19 & 27, 2022 Date of Judgment: June 23, 2022 A Corrigendum was released by the Court on June 23, 2022. The corrections have been made to the text and the Corrigendum is appended to this document. INTRODUCTION

[ 1 ] Mr. Tom and some of his relatives, all of whom are members of first nations, were hunting on the Okanagan Indian Band (OKIB) reserve. Another OKIB member called a conservation officer to report that it looked like people were hunting at night in a vehicle with a spotlight. Mr. Kneller, a conservation officer, responded to that call and drove to where the caller said he saw the vehicle travelling. He saw the blue truck Mr. Tom was in and stopped it. He talked to the driver and seized a loaded rifle that was improperly stored in the front of the truck.

At that point, the versions of events differ significantly between the Crown and defence. [ 2 ] Mr. Kneller said Mr. Tom got out of the truck and that he and the driver were uncooperative and threatening. He asked Mr. Tom for his name but Mr. Tom refused to identify himself. Mr. Kneller was forced to leave to ensure his safety. That led to Mr. Tom being charged with obstruction under s. 96 of the Wildlife Act . The Crown says that Mr. Tom’s failure to identify himself upon request and threatening manner obstructed the conservation officer in executing his duties. [ 3 ] Mr.

Tom and the others in their truck said Mr. Tom never got out of the truck or interacted with the conservation officer. Mr. Tom did not challenge the validity or applicability of the Wildlife Act to first nation’s land and reserves, and he did not allege that his Charter rights were violated. OUTLINE OF REASONS [ 4 ] I have not expressly referred to all of the evidence or submissions in this proceeding. At times, I have referred to evidence I do not accept, and the reasons why I have rejected it. If I do not refer to evidence or submissions, that does not mean I have not considered them.

I can selectively but fairly refer only to essential evidence and law [i] . Evidence-in-chief refers to evidence of a witness responding to questions asked by the party that called the witness. Cross-examination refers to evidence of a witness responding to questions asked by the opposing party. [ 5 ] I will first analyze a legal issue to resolve what the Crown must prove. I will then consider the evidence in this trial, and assess what I accept and what I reject. Based on the evidence I accept and my findings, I then consider whether the Crown has met its burden.

ISSUES What does the Crown have to Prove? [ 6 ] The first issue I must determine is what the Crown has to prove to prosecute Mr. Tom for the offence charged. [ 7 ] Mr. Tom is charged with obstructing Mr. Kneller under s. 96 of the Wildlife Act [ii] . That

section says: 96

(1) A person who resists or obstructs an officer from exercising his or her duty under this Act commits an offence. [ 8 ] Offences under the Wildlife Act are regulatory offences of strict liability. The Crown only has to prove the act was committed [iii] . The mental element of the criminal offence of obstructing a peace officer is absent. If the Crown establishes the act was committed, it is up to Mr. Tom to establish, on a balance of probabilities, that he exercised due diligence to prevent the offence from happening. He did not raise that defence.

At its lowest, obstruction requires the Crown prove that the act or acts impeded the officer, that is, made it more difficult for him to execute his duty [iv] . [ 9 ] Both counsel submitted that to be required to provide his name, Mr. Kneller had to see Mr. Tom commit an offence. The Crown maintained Mr. Kneller saw Mr. Tom committing an offence, Mr. Tom argued he did not. Both counsel referred to and relied on Moore v. The Queen [v] . I have concluded that the conservation officer did not have to see Mr. Tom commit an offence. [ 10 ] Mr.

Moore was charged under the Criminal Code with obstructing a peace officer in the execution of his duty. A police officer saw Mr. Moore ride his bicycle through a red light at an intersection. Although he avoided stopping when required by the officer, the analysis focussed on Mr. Moore’s refusal to give his name when asked, so the officer could issue him a violation ticket under the relevant Motor Vehicle Act ( MVA ). The officer did not have authority to arrest Mr. Moore under the MVA . The warrantless arrest provisions of the Criminal Code gave him authority to arrest Mr.

Moore, but only if that was required to establish his identity. It was on that basis that the court found the officer was acting in the execution of his duty [vi] : The constable, therefore, in requesting the appellant Moore to identify himself, was carrying out the duty of enforcing the law of the Province in this

summary conviction matter by attempting to identify the accused person so that he might proceed to lay an information or take the more modern form permitted under the said

Summary Convictions Act of British Columbia of issuing a ticket. I am of the opinion that the Court of Appeal of British Columbia was correct in finding that when the appellant Moore refused to accede to the constable’s request for his identification he was obstructing that constable in the performance of his duties .

As did the members of the Court of Appeal, I am confining my consideration of this matter to the actual circumstances which occurred, that is, that a constable on duty observed the appellant in the act of committing an infraction of the statute and that that constable had no power to arrest the accused for such offence unless and until he had attempted to identify the accused so that he might be the subject of

summary conviction proceedings. (Emphasis added) [ 11 ] The Court also held that the decision in Moore was not contrary to the decision in Rice v. Connolly [vii] , because in that case the officer only suspected criminal activity, whereas in Moore the officer had seen the offence. R. v. Guthrie [viii] , a case referred to by counsel for Mr. Tom, was factually similar to Connolly . The Court of Appeal in that pre- Charter case applied the principles in Connolly .

The Court of Appeal concluded that a person who had not been seen committing an offence could refuse to identify themselves and would be legitimately exercising their right to silence, so long as there was no other legal compulsion to identify themselves. [ 12 ] Those cases are inapplicable to the legal analysis at hand because the Wildlife Act provides that legal compulsion. [ 13 ] Hunting is broadly defined in s. 1 of the Wildlife Act , and includes what is alleged in this case: "hunt" includes shooting at, attracting, searching for , chasing, pursuing, following after or on the trail of, stalking or lying in wait for wildlife, or attempting to do any of those things, whether or not the wildlife is then or subsequently wounded, killed or captured, (

b) while in possession of a firearm or other weapon; (Emphasis added) [ 14 ]

Section 95 of the Wildlife Act requires a person to give their name upon request if a Conservation officer is investigating to determine whether the occupants of a vehicle have been hunting. Doing so is called a “hunter check”. No reasonable and probable grounds to believe an offence has been committed is required, and that

section is constitutionally sound [ix] . [ 15 ] Simply put, s. 95 imposed a legal requirement: Mr. Tom had to provide his name if Mr. Kneller asked him for it. There is no need to look to the arrest powers under the Criminal Code for that compulsion. [ 16 ] There is no doubt that Mr. Kneller stopped the blue truck for the purposes of the Wildlife Act . He was checking to see if the people in the truck were hunting. That was the evidence, that was admitted, and that is a finding I make. Further, if Mr. Tom refused to identify himself when asked, Mr. Kneller would have seen Mr.

Tom commit an offence under s. 95(2) of the Wildlife Act . At that point, the analysis in Moore could apply, but it would be redundant. [ 17 ] Accordingly, if the Crown has proved that Mr. Tom failed to identify himself upon request, just as Mr. Moore obstructed police by failing to give his name, so too would Mr. Tom have obstructed Mr. Kneller. If the Crown proves that Mr. Tom made Mr. Kneller’s investigation more difficult in some other way, the Crown will also have proved Mr. Tom committed the offence charged. What Facts has the Crown Proved? [ 18 ] The second issue requires me to resolve a factual dispute.

Mr. Kneller testified that he asked Mr. Tom for his name when Mr. Tom was outside of the blue truck. Mr. Tom denies he interacted at all with Mr. Kneller, and specifically denies he got out of the truck when the conservation officer stopped it. [ 19 ] Credibility and reliability are central to resolving the different evidence. If the defence evidence is believed, is capable of belief, or if I am left with a reasonable doubt by it, I must acquit Mr. Tom. I will also acquit him if the Crown’s evidence does not prove his guilt beyond a reasonable doubt. Mr.

Tom is presumed innocent. [ 20 ] Credibility assessment involves examining the veracity or sincerity of a witness, that is, whether they are trying to be truthful. Reliability issues revolve around a witness’s ability to make a memory, store it and accurately recall it. I must consider each witness’ honesty, objectivity and accuracy. I keep in mind that some might think that a simple denial is an easy way to avoid conviction. Yet an innocent person would forcefully protest their innocence and have no other option. Where there is nothing to protest because it did not happen, not much more can be said.

A simple denial is of itself no reason to reject a defence explanation. [ 21 ] The Crown argued that Mr. Kneller had no motive to lie, whereas the defence witnesses did. Two days before the end of the trial, the Supreme Court of Canada commented on this topic [x] . Other cases have more fully covered the issue [xi] . In

summary, if there is no evidence of a motive to lie, or there is evidence showing that a particular motive to lie does not exist, then common sense suggests the witness is more likely telling the truth: they do not have a reason to lie. However, I have to keep in mind that the two factors are different. A lack of evidence of a motive to lie is not the same as evidence that shows a particular motive does not exist. The second situation requires evidence and specific advertence to that motive in the trial, and is therefore a stronger indication of honesty, although neither are conclusive.

I must not shift the burden of proof and require Mr. Tom to show why the conservation officer might be lying, or to disprove that Mr. Kneller had no motive to fabricate . I must always analyse a witness’ testimony in light of all the evidence. I proceed to do so. Micah Kneller [ 22 ] Mr. Kneller, in his capacity as a conservation officer, received a call from the complaint centre at 4:30 or 5:00 in the afternoon of November 16, 2019 informing him of a complaint of hunting on OKIB land with a light. Mr. Kneller called the complainant, who was a member of the Band.

The complainant said some people were hunting at night with lights across the lake from where he was living. The complainant told Mr. Kneller how to get to where he saw the suspect vehicle with one light out. Mr. Kneller followed the directions, eventually going onto a very muddy dirt road on a hillside. He could see a light flashing quickly, scanning the east side of the hill above Okanagan Lake. He thought it looked like someone was ‘pit lamping’, which he said was using a light to hunt at night. From the way Mr.

Kneller saw the light moving, he did not think the light was attached to the vehicle, but was in somebody's hand. [ 23 ] Mr. Kneller found a blue truck with one light out coming down the muddy track towards him. He turned on his emergency lights and stopped the vehicle. The vehicles were facing each other. He got out of his marked truck which identified him as a conservation officer. He went to the driver's side window, which was rolled down.

He smelled an odour of liquor and saw a high-powered hunting rifle with a scope on it, with the barrel pointing towards the floor, in between the driver and the front passenger. For safety reasons, Mr. Kneller wanted to see if the rifle was loaded. He asked the driver to open the bolt. The driver complied. A bullet ejected from the chamber, which meant it was loaded. He also saw more bullets in the rifle. Mr. Kneller was satisfied that offences under the Criminal

Code and other legislation relating to unsafe transport of a firearm had been committed. [ 24 ] In addition to the male driver, there were two women and one man sitting in the back part of the cab. Mr. Tom was in the front passenger seat. Mr. Kneller did not know any of the people. Mr. Kneller saw many empty beer cans. Because of the loaded rifle and related safety concerns, Mr. Kneller asked the driver to get out of the truck and step to the front of it. He did and Mr. Kneller took the rifle, unloaded it, put it and the ammunition in his truck and then locked his truck’s door.

Defence counsel took no issue with the seizure or Mr. Kneller’s authority to do so under the Wildlife Act . [ 25 ] Mr. Kneller asked the driver if there were any more firearms in the blue truck. The driver said there were none, but Mr. Kneller needed to confirm that. In searching the blue truck, he saw an open beer can on the floor of the driver’s seat. He did not see any other firearms. At that point, the blue truck’s passengers were still in the vehicle. Mr. Kneller reached in, took the open beer from the driver’s floor area and walked back to his truck to speak further with the driver. [ 26 ] Mr.

Kneller asked the driver to identify himself for two reasons: to make sure he was allowed to have a firearm; and because it was apparent the driver was hunting at night. Mr. Kneller also asked about his status as a member of a first nation, because that might affect the driver's right to possess the firearm. The conversation with the driver, Mr. Bonneau, was not particularly confrontational. Mr. Bonneau identified himself, was cooperative, and answered the CO’s questions. Mr. Bonneau also asserted that that he had a right to hunt on the land and that Mr.

Kneller was trespassing. [ 27 ] In his evidence-in-chief, Mr. Kneller testified that there was a light affixed to the blue truck’s roof on the driver side and a handheld light on the floor by Mr. Tom. In cross-examination, he agreed that his notes were more accurate, and he had written down that he saw the spotlight on the driver's seat. The front seat of the truck was a bench seat. [ 28 ] At that point, Mr. Kneller saw Mr. Tom walk around the front of the truck to where he and Mr. Bonneau were standing. Mr. Tom was swearing, pointing at Mr.

Kneller, and yelling at him to get off the land because he had no jurisdiction. Mr. Bonneau then started to yell the same things. Around the same time, Mr. Kneller saw a younger woman get out of the truck and use her cell phone to record what was transpiring. According to Mr. Kneller, Mr. Bonneau and Mr. Tom were standing shoulder-to-shoulder in front and to the left of their blue truck, about two metres away from him. [ 29 ] At that point, Mr. Kneller asked Mr. Tom for his name. Mr. Tom refused to tell him. Mr. Kneller said Mr. Tom and Mr. Bonneau continued to yell at him, and Mr.

Tom was clenching his fists open and closed while looking straight at Mr. Kneller. Mr. Kneller backed up, trying to keep about two metres away from Mr. Bonneau and Mr. Tom. He testified that the woman called Mr. Tom to come back to his truck, but he ignored her. Mr. Kneller testified that at least once he told the two to backup because he wanted to be safe. He was concerned because he was by himself, there were five other people, alcohol was involved, and at least two of the people were aggressive and advancing towards him. [ 30 ] Mr.

Kneller thought it was unlikely he could proceed to identify the other people in the truck or get Mr. Tom to identify himself. Mr. Kneller thought safety was a priority. He had obtained Mr. Bonneau’s information, had the licence plate of the truck, and had the firearm. He got into his truck and drove off because he thought, from the way Mr. Tom was acting, he would be physically attacked if he did not leave. Mr. Kneller testified he was not able to complete his investigation under the Wildlife Act . [ 31 ] He then called for police to come and assist him, and the blue truck drove off.

He followed some distance behind it. Eventually, he came upon the truck parked across the road, blocking his path. Police were also nearby. He got out and saw Mr. Tom and another man coming toward him, with Mr. Tom yelling and clenching his fists just as he had done before. Mr. Kneller asked for their names but they refused to provide them. Eventually Mr. Gottfriedson provided his name, but Mr. Tom refused, even after he was told he would be arrested. [ 32 ] Mr. Kneller said he arrested Mr. Tom and turned him over to police who eventually were able to get his name.

Despite having conducted thousands of such investigations over his career, mostly in northern BC, he had always been able to de-escalate a situation and complete his investigation. He had never had to disengage as he did on this night. Michael Tom [ 33 ] Mr. Tom testified that he had great difficulty walking without a cane. He said that Mr. Kneller’s truck was parked behind and to the side of the blue truck. Mr. Kneller went to the driver’s side of the truck, Mr. Bonneau rolled down his window, Mr. Kneller asked if the firearm was loaded, asked Mr. Bonneau to open it, and agreed that Mr.

Bonneau did so and a bullet came out. Mr. Tom testified at that point Mr. Kneller grabbed the rifle and took the rifle to his truck. After that, Mr. Bonneau went out to talk to him. Mr. Tom testified that his daughter was the only other person who got out of the truck. She went through the driver's door. He testified his daughter told him to stay in the truck when she got out and she “went back to confront” Mr. Kneller. [ 34 ] Mr. Tom said he could not see or hear what was going on because the conversation was taking place outside the truck, behind him and to his left. He testified that Mr.

Kneller did not ask his name or interact with him in any way. Later, when stopped by the police, he testified he was shining the spotlight at the police until they got him out of the truck. The police put him in handcuffs and he was told he was detained until they found out who he was. They would not let him go until he told them his name. He testified that once he told them his name they released him and told him to walk home. He agreed in cross-examination that he would not tell the police his name and that he remained handcuffed until he identified himself. From that testimony, I find that Mr.

Tom refused to tell the police his name for some considerable time. [ 35 ] He admitted that all five of them were hunting with the spotlight. He also said that from his perspective, since no shots were ever fired, they were not hunting, but they were using lights to look for animals and that if they saw one they would have shot it. He said the light was very bright, a million candles. He testified it was legal to hunt on reserve land with a light. He said he was an experienced hunter and was aware of hunting regulations, but said they did not apply on OKIB land.

In his view, the law allowed him to hunt with a light, and the conservation officer had no jurisdiction unless he had permission from the OKIB Chief to come onto the land. In his view,

Mr. Kneller was trespassing and had no right to take the rifle. [ 36 ] He denied he was operating the spotlight when directly asked and said he did not operate anything. He also denied that he knew what the light was for, contrary to his evidence-in-chief. When he was asked if Mr. Bonneau was sitting on the light, which was some 6 inches around, his answer was that he guessed so. He was then asked to confirm if he was saying Mr. Bonneau was sitting on the light. Mr. Tom then denied saying he said Mr. Bonneau sat on it. That answer could mean Mr.

Tom has a very poor memory, that he denied he said it when he realized what he had said made no sense, or that he gave an incomplete answer. None of the possibilities showed Mr. Tom was trying to give a full, honest answer. [ 37 ] Generally, when testifying, particularly in cross-examination, Mr. Tom was very aggressive and argumentative. His voice was angry and he interrupted many times despite my warnings to let the Crown ask the question before he answered. His attitude was very different from when he was asked questions in chief.

His persistent and obvious hostility in cross-examination detracted from his credibility. So did his internally inconsistent testimony. Jazmin Gregoire [ 38 ] Jazmin Gregoire is Mr. Tom’s daughter. She lived next to her parents and saw them almost daily. Although not related by blood, Mr. Bonneau was like a brother. She did not think her father had an injured knee at the time of the alleged offence, although he had injured it several times before. [ 39 ] She described going hunting with her family, having left at about 11 am. They finished when it got dark, about 3 or 4 pm. She estimated they were stopped by Mr.

Kneller at about 6 pm. She drew a picture of how their truck and the conservation officer’s truck were parked, which was similar to what her father had said. She said Mr. Kneller reached through the open window and grabbed the gun from Mr. Bonneau as soon as he got to their truck. She was firm in her testimony that Mr. Bonneau did not open the rifle and eject ammunition. [ 40 ] She said Mr. Bonneau then got out to talk to the conservation officer to try to get it back. She said she got out of the truck to take a photograph of the conservation officer.

She had a somewhat surprising lack of recollection of details about that entire interaction. She said she was confused, as were the others in the truck, about why Mr. Kneller was there. She told her father not to get out of the truck because it was muddy and slippery out and he might fall. Only her and Mr. Bonneau got out of the truck. [ 41 ] She described Mr. Bonneau as compliant and merely wanting the conservation officer’s card so he could get his rifle back later. She said Mr.

Kneller permitted her to take a photo of his badge, although she ended up just taking a photo of the ground, and then ran to his truck right after she took a photo of him. She said he then sped off in his truck. From her description, there would be no reason for him to run to his truck or speed off. She did not explain how they were able to get in front of Mr. Kneller, even though he left first. [ 42 ] When stopped by police, she said only herself, her mother and Mr. Bonneau got out of the truck, that she did not interact with police but walked home with her mother, leaving her dog in the truck with her father.

The route they took was about half a mile through fields in the dark, which was the quickest and shortest route home. She said her father likely took the same route because he would have been upset by the police stop and full of adrenalin, which would have allowed him to walk on uneven ground through the fields. [ 43 ] She agreed in cross-examination that her father had used the spotlight in the front of the truck, as that was his role when they were hunting, although she added after a pause that on the way back down they had stopped hunting and were just looking around with the spotlight.

Later in cross-examination, she testified that when driving back after they stopped hunting, they were all looking around with the spotlight and that maybe they were looking for a deer if they saw one, perhaps for the next time. She said she knew they had stopped hunting because they were going back down the mountain and heading home. Shortly after, her testimony changed and she acknowledged that she did not know if Mr. Bonneau and her father had actually stopped looking for deer, impliedly to hunt.

She did not clarify how going home would stop people hunting, especially since they were unsuccessful in their subsistence hunting. [ 44 ] She thought the conservation officer had stolen the rifle and that he was trespassing and had no right to be on the OKIB lands. She stated that her father, Mr. Bonneau and in fact the entire OKIB membership shared the same view. She thought she was sitting right behind Mr. Bonneau in the truck, and that everyone drank alcohol that day while they were hunting. She said that Mr.

Bonneau had not given his name to the conservation officer, that she talked with him about giving their names and they agreed they should. That conversation appeared to have happened in the truck. [ 45 ] She agreed her father could be confrontational if the other person was. It was evident she thought Mr. Kneller was confrontational. She recalled Mr. Kneller saying, in response to the hunting party’s questions, that he was there because he had gotten a phone call from someone saying they had seen a truck hunting with a light. She said Mr. Bonneau did not argue with the conservation officer.

Although she said her father did not talk to the conservation officer, at other times she said he might have said he was an idiot; and other times that he said things like the conservation officer should not have been there or was trespassing. At the police stop, she told her father to go home with her and her mother, but he stayed and she expected he would either be in jail or would get a ride home with Mr. Bonneau. [ 46 ] Although not argumentative, she changed her evidence over the course of her testimony on important points, especially with respect to her father saying things to and about Mr. Kneller.

From her evidence-in-chief, my impression was her father was silent and remained in the truck; by the end of cross-examination, she conceded that he was objecting to the conservation officer being there. She was unable to recall many details about the incident, indicating poor recall to some extent. Finally, it was clear her perspective was the same as her father’s and others in the truck: Mr. Kneller was trespassing, had no right to be on the land, seize the rifle or even ask questions. Silas Gottfriedson [ 47 ] Mr. Gottfriedson was also in the back seat of the blue truck. He was related to the others.

He said he went hunting with Mr.

Bonneau and the others, that they turned around just before dark, which he thought was about 5:30 or 6 pm. He estimated he drank six to eight beers that day. His testimony about the conservation officer’s initial actions were mainly consistent with Mr. Kneller’s testimony. He said that he was sitting right behind Mr. Bonneau, that Ms. Gregoire got out of the truck within a minute of Mr. Bonneau getting out, and that he could not hear what Ms. Gregoire and the conservation officer talked about after she closed the truck door, even though they were only about 10 feet away. I infer from that evidence that Mr.

Bonneau’s window had been rolled back up fairly quickly after it was rolled down. He said Mr. Tom never got out of the truck and never interacted with Mr. Kneller, and the conservation officer left shortly after Mr. Bonneau got out to speak to him. [ 48 ] He said that there were three or four police cars, that the officers all had their guns drawn and that Ms. Gregoire and her mother left.

He said he and the others were handcuffed and told they were detained until they gave their names, and that if they did not give their names they would be arrested. [ 49 ] In cross-examination, he agreed that it was generally known that conservation officers are not allowed on reserve land, and that in his and Mr. Tom’s view, Mr. Kneller stole the rifle as he had no right to take it. He agreed he might have told the conservation officer he was trespassing and said he would support someone who tried to get Mr. Kneller to leave. He agreed Mr.

Tom’s job was to control the spotlight, that they were looking for deer, that they were all subsistence hunters, and that they were still looking for deer after they turned around. In his view, as OKIB members, they were allowed to hunt with a spotlight, as the law prohibiting it only applied to non- status members. [ 50 ] He agreed Mr. Kneller could not have taken the rifle by reaching through the window, but recalled it was left in the truck for a couple minutes while Mr. Bonneau and Mr. Kneller talked outside the truck. He thought Mr. Kneller left right after he seized the rifle.

He was vague on many details, but was certain that Mr. Tom did not get out of the truck. He agreed Mr. Tom might have said something about what the conservation officer was doing, but could not recall what it was if he did. [ 51 ] He said the interaction between Mr. Bonneau and Mr. Kneller was not confrontational, although he also admitted he could not see them for most of their interaction. He said the conservation officer left after about two minutes of conversation. He recalled that he, Ms.

Gregoire and her mother got out of the truck after the police told them to get out of the truck – which was different from what he had said before. Mr. Tom did not get out when asked. He saw Mr. Tom released by police, Mr. Tom did not ask for help getting home, and would have walked through dark fields to get home. He had no concerns about Mr. Tom’s ability to do so. Analysis [ 52 ] All the defence witnesses very firmly believed that Mr. Kneller was trespassing and had no right to be on the reserve land, seize the rifle or even investigate possible offences.

That perspective remained throughout trial, despite defence counsel specifically stating that the lawfulness of the conservation officer’s presence on the land and right to investigate were admitted, were not in issue, and that Mr. Kneller had the lawful right to do those things. I conclude all of the defence witnesses, especially Mr. Tom, remain adamant they are right, and will forcefully uphold their viewpoint when asserting what they believe are their rights. Since they continued to do so at trial, in opposition to their lawyer, they will not shy away from asserting those beliefs.

Their credibility suffered, as they were quite biased. [ 53 ] I also conclude that Mr. Tom is not afraid to confront authority figures and can get confrontational if others confront him. His daughter said he could. He was confrontational in cross-examination. He was confrontational with police, shining the spotlight on them even though they had drawn firearms, and was far from cooperative, refusing to give his name for some time. It is clear to me that Mr. Tom can be defiant and thinks the law and those that try to enforce it need not be heeded, at least with respect to first nation’s land. [ 54 ] Mr.

Kneller was clearly confronting the group about hunting at night with a light. Mr. Tom did not shy away from expressing his perspective, repeatedly and forcefully, at trial. I cannot imagine that he could, or would, stop himself from doing so directly to the person he thought was in the wrong on November 16, 2019. I conclude it is far more likely that Mr. Tom would have been equally if not more confrontational with the conservation officer when they were far away from anyone else and well onto reserve land. [ 55 ] Mr. Tom changed his testimony at times. So did Ms. Gregoire and Mr. Gottfriedson.

Those changes did not assist in the defence narrative. The changes indicated that Mr. Tom may well have or did assert his beliefs to the conservation officer, indicating some interaction with Mr. Kneller. If the people inside the blue truck could not hear conversations outside, they could not have heard Mr. Tom interact with Mr. Kneller. The changes in evidence also indicated that they were hunting at night with a light, despite attempts to deny it when testifying. The witnesses were vague on details, although that is not surprising given the passage of time.

They had all been drinking, perhaps further negatively impacting their recall. Accordingly, I have some concerns about their reliability. [ 56 ] Their testimony about Mr. Kneller’s interaction with Mr. Bonneau conflicted and made little sense. Mr. Gottfriedson was adamant the interaction was peaceful, or at least not confrontational. Yet he could not and did not see most of it, and he could not and did not hear it. If he did not see it or hear it, he could not speak to the nature of the interaction. I conclude he gave that evidence to try to support Mr. Tom, rather than being forthright. Ms.

Gregoire’s testimony that Mr. Kneller ran to his truck and sped off made no sense in that there was no need for him to do so on her version of the facts. [ 57 ] Mr. Tom and Ms. Gregoire’s reason for him staying in the truck – he had a bad knee and would be unable to handle slippery conditions – was contradicted by the fact he walked home, without any light, through wet fields, and did not ask for any help. No one else testified they had trouble walking or standing where the truck was stopped by the conservation officer. I find Mr.

Tom would also not have had any trouble. [ 58 ] I do not believe the exculpatory defence evidence, and it is not reasonably capable of belief, which is to say, I do not think a reasonable person could conclude it was true. [ 59 ] With respect to Mr. Kneller’s testimony, it was cohesive and made sense. He admitted when he had an inaccurate recollection. Mr. Kneller’s recollection of what Mr. Tom said, not contradicted by his notes, reflect exactly what Mr. Tom testified he believed. To be clear, I am not using any prior statement to buttress his testimony; I am only saying there was nothing to contradict it.

The fact that the

notes were made an hour after the events and did not capture precisely the words used is of little consequence. The point is that Mr. Kneller felt the words and interactions were threatening. That led to his response – flight, to avoid a fight. Mr. Kneller’s narrative was consistent with having a reasonable basis to fear the hunting party, and be concerned. It would make sense to speed off and call police based on Mr. Kneller’s version of events. It would make no sense to do so based on the defence narrative. [ 60 ] There is no doubt the police responded to his call and attended in numbers and force.

I conclude they would not have done so if the interaction was peaceful and not confrontational, as the defence witnesses claimed, whatever happened. All the police did was assist in completing Mr. Kneller’s investigation by getting the names of those he thought were involved in hunting contrary to the Wildlife Act . Mr. Kneller’s testimony was also corroborated in many respects by non-exculpatory defence evidence. I accept his testimony. [ 61 ] I agree with the Crown that there was no evidence of any motive for Mr. Kneller to lie; and that the defence witnesses had a motive to lie about Mr.

Tom interacting with the conservation officer. Mr. Tom’s actions, as described by Mr. Kneller, are consistent with the defence witnesses’ beliefs about the law, a conservation officer’s lack of authority to be on OKIB land, and right to enforce the law. [ 62 ] I am not requiring Mr. Tom to even raise the issue of why the conservation officer might be lying, or to disprove that he had no motive to fabricate. I only note that it would make no sense for Mr.

Kneller to fabricate a story, immediately call police to support that fabrication, then come to court and perjure himself, all in aid of convicting someone he did not know and could not identify until after the police got Mr. Tom to provide his name. That is supportive of credibility. In other words, there is nothing to detract from Mr. Kneller’s honesty and accuracy. CONCLUSION [ 63 ] I have rejected the exculpatory defence evidence and accepted Mr. Kneller’s testimony. The defence admitted that Mr. Tom’s failure to give his name to the conservation officer upon request would amount to an obstruction. I agree.

Accepting Mr. Kneller’s evidence means that I also find that Mr. Tom, along with Mr. Bonneau, approached the conservation officer in an aggressive manner, failed to stop as requested and prevented and hindered Mr. Kneller in completing his investigation. Mr. Tom acted in concert with Mr. Bonneau. He also obstructed Mr. Kneller in the execution of his duty by his actions and words. The Crown has proved Mr. Tom’s guilt beyond a reasonable doubt. ___________________ The Honourable J.

Guild Provincial Court Judge CORRIGENDUM - Released June 23, 2022 In the Reasons for Judgment dated June 23, 2022, the following changes have been made: [ 64 ] Paragraphs [1], [2], [3], [23], [40], [50], [52] & [56] are amended to reads as follows: [1] Mr. Tom and some of his relatives, all of whom are members of first nations, were hunting on the Okanagan Indian Band (OKIB) reserve. Another OKIB member called a conservation officer to report that it looked like people were hunting at night in a vehicle with a spotlight. Mr.

Kneller, a conservation officer, responded to that call and drove to where the caller said he saw the vehicle travelling… [2] …The Crown says that Mr. Tom’s failure to identify himself upon request and threatening manner obstructed the conservation officer in executing his duties. [3] Mr. Tom and the others in their truck said Mr. Tom never got out of the truck or interacted with the conservation officer… [23] … He got out of his marked truck which identified him as a conservation officer… [40] She said Mr.

Bonneau then got out to talk to the conservation officer to try to get it back… [50] … He was vague on many details, but was certain that Mr. Tom did not get out of the truck… [52] All the defence witnesses very firmly believed that Mr. Kneller was trespassing and had no right to be on the reserve land, seize the rifle or even investigate possible offences… [56] …Ms. Gregoire’s testimony that Mr. Kneller ran to his truck and sped off made no sense in that there was no need for him to do so on her version of the facts… [ 65 ] My Reasons for Judgment are amended accordingly.

___________________ The Honourable J. Guild Provincial Court Judge [i] R. v. Tse, 2013 BCCA 121 at para. 56; R. v. Blacklaws, 2012 BCCA 2017 at para. 50 (aff’d, 2013 SCC 8); and R. v. Dinardo, 2008SCC 24 at para. 30. [ii] RSBC 1996, c 488 [iii] Martin v. R., 2003 BCSC 1973 [iv] R .v. Porter, 2004 BCSC 1520 [v] (SCC), [1979] 1 SCR 195 [vi] Moore at pp. 203-204 [vii] [1966] 2 All E.R. 649. [viii] 1982 ABCA 201 [ix] R. v. Rice, 2009 BCCA 569 [x] R. v. Gerrard, 2022 SCC 13 [xi] R. v. Ignacio, 2021 ONCA 69, leave to appeal refused, [2021] S.C.C.A. No. 127; R. v. S.S.S., 2021 ONCA 552