R. v. Stevikova, 2021 BCPC 235

Citation: R. v. Stevikova 2021 BCPC 235 Date: 20210929 File No: 68088-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. ZUZANA STEVIKOVA REASONS FOR SENTENCE OF THE HONOURABLE JUDGE L. SMITH Counsel for the Crown: N. Farinelli Counsel for the Defendant: G. Diamond Place of Hearing: North Vancouver , B.C. Dates of Hearing: Jan. 25, Feb. 8 , 26, Apr. 19 , May 26, July 20, Sep. 28, 2021 Date of Judgment: September 29, 2021 A. INTRODUCTION

[1] On January 25, 2021 Zuzana Stevikova entered guilty pleas to two charges under the provincial Wildlife Act. [2] After the pleas were entered, counsel jointly proposed a financial penalty of $3,500 in relation to Count 2, comprised of a $500fine and a $3,000 donation to the Habitat Conservation Trust Foundation, (“the Foundation”).

Counsel jointly proposed a financialpenalty of $7,000 in relation to Count 3, comprised of a $500 fine and a $6,500 donation to the Foundation. [3] The charges span three months in the summer of 2018. [4] The maximum sentence for the offence in Count 2 is a $50,000 fine and six months’ imprisonment. The maximum sentence forthe offence in Count 3 is a $100,000 fine and one year’s imprisonment. There is no minimum sentence for either.

Under the WildlifeAct, a person who continues to commit either offence for more than a day can be fined to the maximum each day that the offencecontinues. [5] I did not accede to those proposed submissions. As discussed below, a number of further appearance occurred, following theprocess set out in the leading case on joint sentencings, R. v. Anthony-Cook, 2016 SCC 43. I remained unpersuaded that the sentencesproposed adequately reflected the gravity of the offences, the offender’s culpability and the principles relevant to the offences,particularly deterrence. [6] These are my reasons for sentence. B.

THE CHARGES [7] Count 2 charges the following: From June 1, 2018 to August 31, 2018, inclusive, at or near Whistler, B.C., Ms. Stevikova did leave or place an attractant in, on or aboutany land or premises where there are or where there are likely to be people, in a manner in which the attractant could attract dangerouswildlife to the land or premises, and be accessible to dangerous wildlife, contrary to

Section 33.1(2) of the Wildlife Act. [8] Count 3 charges that: From June 1, 2018 to August 31, 2018, inclusive, at or near Whistler, B.C., Ms. Stevikova did intentionally feed or attempt to feeddangerous wildlife, to wit, bear(s), contrary to

section 33.1(1) of the Wildlife Act. C. THE WILDLIFE ACT [9] The Wildlife Act is regulatory in nature; an environmental protection act. [10] The main purposes of the Wildlife Act include the preservation and conservation of wildlife habitat and the enhanced productionof wildlife; (see: The Association for the Protection of Fur-Bearing Animals v.

B.C. (Minister of Environment and ClimateChange Strategy), 2017 BCSC 2296, at para. 46; 2018 BCCA 240; (SCC)). [11] As well, some of its provisions, including those here, aim to protect the public, as the statute’s subject matter includes animalsthat can pose life threatening danger to people who encounter them, (to the people’s detriment and, often, to the wild animal’sdetriment). As a result, there is a public safety or welfare aspect to the legislation. [12] In the Act, “dangerous wildlife” includes (

a) bear, cougar, coyote or wolf…. [13] "Attractant" means any of the following: (

a) food or food waste, compost or other waste or garbage that could attract dangerous wildlife, as well as carcasses and other items prescribed by regulation. [14] Under the heading “Attracting Dangerous Wildlife” the offences here are set out: s. 33.1

(1) A person must not (

a) intentionally feed or attempt to feed dangerous wildlife, or (b) ….

(2) A person must not leave or place an attractant in, on or about any land or premises where there are or where there are likely to bepeople, in a manner in which the attractant could (

a) attract dangerous wildlife to the land or premises, and (

b) be accessible to dangerous wildlife. [15] Subsection 33.1(4) is the

section which provides that where offences such as those committed by Ms. Stevikova continue formore than one day, an offender may be fined (up to the maximum) for each day the offence continues. In this case, “repeated” may bemore appropriate than the word “continued,” but in any event, the subsection is relevant because it demonstrates the sentencing exposurethe conduct here can attract.

[ 16 ] Subsection 33.1(7) of the Act provides a non-exhaustive definition of the word “leave,” found in subsection 33.1(2): s. 33(7) For the purposes of this section, "leave" , in relation to a person who is an owner, tenant or occupant of land or premises, includes to fail to remove an attractant from or to allow an attractant to remain in, on or about that land or those premises. [ 17 ] Subsection 84(5) of the Wildlife Act sets out the maximum penalties for the offence in Count 2 for a first time offender. [ 18 ] Subsection 84(3)(

a) of the Act sets out the maximum penalty for the offence in Count 3. [ 19 ]

Section 2 of the Wildlife Act sets out that o wnership in all wildlife in British Columbia is vested in the government. D. THE OFFENCES [ 20 ] I accepted, as proved, the following facts set out in the Agreed Statement of Facts, (filed as an exhibit on this sentencing on January 25 th ), pursuant to

section 724 of the Criminal Code and provisions of the Offence Act : 1. After an anonymous complaint to the Report All Poachers and Polluters hotline, Conservation Officer Service conducted an investigation which revealed that Ms. Stevikova had been feeding black bears over the summer of 2018 at her property in a residential area of Whistler. 2.

The investigation included Conservation Officers speaking with numerous witnesses, most of whom had worked in the residential neighbourhood in which the offences occurred or had worked at the offender’s property, who recounted seeing: i. bears, on a regular basis, at the property – often up to five bears being observed at once; ii. apples or carrots were seen at different times on the property, spread out over certain areas; bears were seen eating apples strewn on the property and bears were seen on many days, on the property; bears were seen coming and going from the property frequently; iii. some people feared for their safety and some found themselves, unexpectedly, in uncomfortably close proximity to the bears; iv. the bears appeared to be habituated to people; v.

Ms. Stevikova was heard calling a bear by a name (“Lilly”) and told one witness she was feeding the bears and felt that they needed help, as they looked skinny and she was concerned for their welfare and told another that she was feeding the bears so that people in Whistler would not complain about them and the conservation officers would not kill them; vi. The bears had caused damage to a garage door and cedar fence at Ms. Stevikova’s home several times; vii. Ms.

Stevikova purchased bulk produce, mainly between August and November, including up to 10 cases of apples, 50 pounds of carrots and pears and up to 15 dozen eggs, all on a weekly basis, from a nearby grocery store. I find as a fact that she used these foods as attractants and to intentionally feed the bears. (I note that only the month of August is relevant here, given the date of the charges. I find as a fact that Ms. Stevikova used the purchased foods as attractants and to attempt to feed the bears). 3. On September 19, 2018 two Conservation Officers visited the property. There, they spoke with Mr. Dugan, Ms.

Stevikova’s spouse and co-accused. He told the officers that bears use his property to travel through; that he thinks that they feel protected form the construction in the area. He stated that there were bears on the property at the moment. 4. The officers then saw a sow black bear in the driveway with two cubs nearby in a tree. There were also two yearlings on the property. 5. The adult bear approached the house with caution and appeared habituated to people. Mr. Dugan opened the property’s metal gate and the bear approached him.

One of the Conservation Officers attempted to haze the bear but it did not respond and did not show any fear of the officers. The sow approached the officers within a couple of meters. The yearlings also approached them within a few meters, despite hazing efforts. 6. The officers tranquilized the adult female bear and two cubs in order to remove them from the property. 7. While on the property, the officers saw bear scat within the property boundary with orange material, suggesting the presence of carrots. As counsel observed, orange is not a natural food-stuff colour in wild bear feces. 8.

When bears are fed by humans, they associate food with people and will approach people or human spaces for food. 9. The Conservation Officer Service, using a Bear Response Matrix, concluded that the bears’ behavior and location was such that, for public safety reasons, they had to be removed from the population. The sow and cubs were euthanized, research and experience showing that cubs of habituated adult bears replicate their parents’ dangerous behavior. 10. The two yearlings fled back into the forest. 11. Whistler is a “bear smart” community.

Bears are tolerated by the community much more than in other locations. [ 21 ] In addition to the filed Agreed Statement of Facts, counsel made submissions relevant to the sentencing, as they are entitled to do, under

section 723 of the Code . In addition to oral submissions, counsel for Ms. Stevikova presented receipts for donations to various animal charities which were marked as exhibits and supported his characterization of Ms. Stevikova as markedly concerned for the well- being of animals. He also produced media articles marked as exhibits on sentence, evidencing the media attention which this case has received.

[ 22 ] With regard to further submissions made under

section 723, counsel advised that Ms. Stevikova had done her own research with regard to the bears’ condition, as she viewed them to be “skinny;” she wanted to ascertain what she could or should do. Rather than contact provincial wildlife resources for information in this regard, she spoke with an “expert.” [ 23 ] As I understand it, this research founded her actions during the summer of 2018 in relation to the black bears in or near her residential property. E. THE OFFENDER [ 24 ] Ms. Stevikova was 37 years old at the time of her guilty pleas.

She resides part time in Switzerland and part time in Whistler. [ 25 ] She has never appeared personally on this matter; she has appeared by video from Whistler and also from Switzerland, and by means of counsel’s agency. The Covid-19 pandemic has been present in our community throughout this proceeding. [ 26 ] Ms. Stevikova is well-educated and apparently sophisticated; she has a masters degree and has worked overseas in the finance industry, but stopped working a number of years ago, along with her spouse.

Since 2012 they have split their time between Switzerland and Whistler. [ 27 ] She is described by counsel as working for $36,000 annually at an adventure school in Whistler, but while counsel have both sought to minimize the relevance of her personal financial circumstances and I have been provided with no clear evidence or information of those circumstances, the facts outlined, including the exclusive nature of the neighbourhood in which the offences were committed and her ceasing to work as described above, make it clear that an annual salary of $36,000 does not come close to accurately reflecting her financial reality. [ 28 ] There is no indication that she suffers a mental illness or addiction or any other attenuating personal circumstance. [ 29 ] Receipts entered into evidence show that since 2015 she and Mr.

Dugan have donated close to $20,000 to a variety of animal charities, world-wide. She is described as vegan, having altered her diet to comport with her views of the value of animals. She and her spouse are described as adopting dogs that no one else wants. She is described by both counsel as well-intentioned throughout her deliberate offending. She is said to have been motivated by a desire to help the bears and prevent their travelling to the Village, where they might encounter a situation which would put them at risk. [ 30 ] As noted above, Ms.

Stevikova has been the subject of media articles in relation to these offences, which I accept have been published outside of Whistler, certainly by the internet. Counsel has advised that this publicity has caused her distress and impacted her. [ 31 ] Six days before she entered these guilty pleas, she made a $5,000 donation to the Get Bear Smart Society. [ 32 ] She is remorseful, particularly for the death of the bears. [ 33 ] Ms. Stevikova has no record. [ 34 ] She had no contact with Conservation Officers in the form of a direct warning or the like before their attendance in September, 2018. F.

PARTIES’ POSITIONS [ 35 ] Counsels’ joint position on January 25 th is set out above. Counsel noted that the proposed penalties would amount to one the highest, if not the highest, penalty imposed under the Wildlife Act. Counsel presented cases consistent with this position, albeit dealing with different communities, (apart from R. v.

Suchy , 2003 BCPC 557 , discussed below), and involving different facts and offenders with different characteristics than those here. [ 36 ] The offences in both counts were characterized as “strict liability offences,” although the offence in Count 3 was described as more serious because of the intentional quality of the prohibited acts. [ 37 ] Counsel agreed that the “special approach” to sentencing principles in environmental offence cases identified in R. v.

Terroco Industries Ltd., 2005 ABCA 141 , applied to this sentencing. [ 38 ] The Crown identified as aggravating factors the duration of the offences; the actual and potential harm (to three bears and to public safety), and the planning and deliberateness of the offender’s commission of the offences. [ 39 ] Identified as mitigating were Ms. Stevikova’s early guilty pleas; the donation to the Get Bear Smart Society, as well as her lack of record. Reference to the impact of the media was also reflected in counsels’ submissions. [ 40 ] Prior to accepting Ms.

Stevikova’s guilty plea to Count 3, but after accepting her plea to Count 2, I enquired of counsel as to the application of the rule against multiple convictions. On January 25 th , it was the position of counsel that that principle did not apply to the offences to which Ms. Stevikova pleaded guilty. [ 41 ] On February 8 th I informed the parties that I would not be acceding to the joint submission and provided reasons.

The matter was set to May 26 th for them to provide further submissions, as provided for in Anthony-Cook at paragraph 58 . [ 42 ] At the outset of the May 26 th appearance, Crown counsel advised that, having heard defence counsel’s submissions on January 25 th , the Crown was now of the view that the rule against multiple convictions did apply here and sought a judicial stay of proceedings or to be permitted to withdraw the charge in Count 2.

[43] Counsel then presented, jointly, submissions that there should be a financial penalty of $10,500 in relation to Count 3, only. [44] Counsel identified as further benefits to society arising from the guilty pleas factors which I believe are appropriate to examine inthe context of potentially mitigating factors, at this stage: (

i) avoiding a public examination at trial of the Conservation Officer Service’spractice of euthanizing animals determined to be dangerous; (ii) an enhanced value to the criminal justice system from guilty pleasduring the Covid-19 pandemic (iii) the borderless reality of media; (iv) varying potential outcomes for habituated bears. [45] As well, counsel argued that Ms.

Stevikova’s motivation for committing the offences was well-intended, if “misguided,” andthus, her culpability reduced. [46] Counsel stated that due to weaknesses in the Crown’s case, the Crown was of the view that it could likely not prove that theoffence occurred on more than three to four days. (I understand this submission to have been in relation to Count 3, only – intentionallyfeeding the bears, or attempting to). [47] Counsel were of the view that the proposed sentences were not nominal. [48] I subsequently concluded that the rule against multiple convictions did not apply. G.

THE COMMUNITY IN WHICH THE OFFENCE OCCURRED [49] R. v. Kenaston Drilling (Arctic) Ltd., (1973) 12 CCC (2d) 398 (NWT SC) - relied on in Terroco - was a Crown sentenceappeal. In allowing the appeal, the Court stated: I am not unaware of the general principles that should be considered in sentencing for the commission of a crime. It is my opinion thatoffences such as is provided for in the present legislation require perhaps a special approach.

I would be remiss as a Judge in this territoryif I did not take notice of the need and purpose of the present legislation, to protect the "control and use of the surface of the land," a landwhich although tundra in nature and frozen over for many months each year is none the less a delicate land, easily damaged and perhapswhen once damaged impossible to repair…. (My underlining). [50] A judge is presumed to be familiar with the community in which he or she works and thus be in a position to take judicial noticeof concerns particular to a given community. (See: R. v.

Mack, 2008 BCCA 520 at para. 10). [51] Fifteen years before these offences were committed, in Suchy, Judge Gedye observed: [6] I have dealt with a number of criminal activities that have come out of the Whistler community. That community has seriousproblems with tourists and the visitors who behave in total disregard for the community that exists, the people that live there on anongoing basis. Not on every occasion, but certainly the matters that have come before the Court.

I think that there are some very seriousproblems facing that community, one of which clearly is how to survive and coexist in a way that is healthy for the animals. (My underlining). [52] Since 2003, the human presence and pressure on Whistler’s surrounding wild habitat has increased markedly: in 2010, Whistlerhosted the Olympics, increasing its international profile and attracting travellers as a result.

Since 2003, the Sea to Sky Highway,leading to the populous Vancouver Lower Mainland, has become a corridor for easy and quick access to Whistler, including by visitorswith no knowledge of how to properly and safely conduct themselves in the wilderness which surrounds and is a part of the community. [53] As noted by counsel, the community has been deliberately designed to maintain wetlands and other wildlife corridors connectedall through the municipal lanes; as a result, it is common to see bears throughout the community. [54] The messaging that people must not feed bears and must not leave food and other attractants accessible to bears appearsthroughout Whistler and on the highway leading to it: the messaging is by way of signs at the parks and paths and trailheads throughoutthe community and sometimes by way of articles or ads in the local newspaper.

The garbage cans throughout the municipality are bear-proof so that bears cannot eat the garbage and be attracted to the parks and paths where the garbage cans are located. [55] That is the contextual reality in which these offences were committed. [56] Both offences were committed in Kadenwood, a residential neighbourhood in Whistler, which has been built into the forestalongside the ski runs leading up to the Whistler Mountain in the last twenty years or so. H. “SPECIAL APPROACH” TO GENERAL SENTENCING PRINCIPLES [57] In R. v. Brown, 2010 BCCA 225, the B.C.

Court of Appeal cited Terroco as the leading case on the principles of sentencing forenvironmental offences such as those here: [13] The leading case on the principles of sentencing for environmental offences is R. v. Terroco Industries Ltd., 2005 ABCA141, 196 C.C.C. (3d) 293, which involved violations of the Environmental Protection and Enhancement Act, S. A. 1992, c. E-13.3 andthe Dangerous Goods Transportation and Handling Act, S.A. 1998, c. D-3.5. At para. 34, the Alberta Court of Appeal adopted thecomment in R. v.

Kenaston Drilling (Arctic) Ltd. (1973), (NWT SC), 41 D.L.R. (3d) 252, 12 C.C.C. (2d) 383(N.W.T.S.C.), that sentencing principles for environmental offences require a special approach, and the court focused on the areas ofculpability, past involvement with the authorities, acceptance of responsibility, harm and deterrence. [14] At para. 53, the court observed that deterrence is a key component of sentences for breaches of environmental protectionstatutes. The court commented, at para. 54, that when the maximum fines under an environmental statute are high, it is a message that

low or nominal fines do not meet the goal of the statutes….. (

i) Culpability [58] In Terroco, the Court explained that culpability should be a “dominant factor in sentencing for environment offences,” (at para.35) and directed that the first step to be taken by a sentencing judge in such a case is to assess the offender’s culpability, (at para. 66). [59] In Terroco, the culpability assessment was with regard to strict liability offences.

In such a case, the judge is directed to“rigorously assess the facts of the predicate offence to see where the offender’s conduct lies on the continuum between virtual duediligence and virtual intent,” (also, para. 66). [60] This assessment applies to the offence in Count 2, which I am satisfied is a strict liability offence. However, upon reflection, Iam of the view that the offence in Count 3 is a full mens rea offence, not a strict liability offence; (see: R. v. Sault Ste Marie, (SCC), [1978] 2 SCR 1299 at pages 1325/1326).

As a result, the culpability lens that includes an assessment of “near-intent”is not applicable to Count 3. (ii) Past involvement with authorities [61] With regard to an offender’s past record and past involvement with the authorities, the Court noted that it can amount to anaggravating factor.

Because the offender in Terroco was a corporation, there is reference to prior non-compliance being an indicationthat the offender is more concerned with profit than compliance; (para. 38.) (iii) Acceptance of responsibility [62] An early guilty plea is identified as a mitigating factor; the Court in Terroco observed the cost of investigating and prosecutingenvironmental offences is often substantial.

As well, the Court noted that a guilty plea is an admission of culpability and is relevant torehabilitation; (para. 39). (iv) Harm – actual and risked [63] Regarding considerations of damage and harm risked or caused by the offending conduct, the Court stated: [45] The existence, potential, duration and degree of harm are factors to be fully considered in sentencing for environmental offences. Ifactual harm is established that is an aggravating factor, especially when the harm is a readily foreseeable consequence of the underlyingaction: R. v. Goodstoney [citations given] and R. v. DeSousa [citations given].

Sentencing judges should therefore be alive to whetherharm occurred to persons, property, the environment or all of them. The degree of actual harm is also a relevant factor. Damage that istrifling is not nearly as aggravating as damage to persons and the environment that is long lasting and of significant degree.

If the harmconsists of death that is a serious aggravating factor. [64] Potential harm as a relevant consideration is also discussed at paragraph 48. [65] While in the context of considering a chemical spill arising from a strict liability offence, the Court in Terroco observed thatwhere risk to people is increased by the proximity of people to the offending acts, a more severe sentence is called for: [50] A site that is person-sensitive also calls for special protection.

If the spill or release of substance occurs next to a school orplayground, the potential for harm is greater thus an exacerbating factor exists. Such potential for harm calls for a more sever sentencethan if the release or spill occurs in an isolated, unpopulated rural area. Generally, spills or releases that occur near or in urban areas havethe potential for greater harm than those that occur in isolated areas. [66] Post-offence changes in conduct are of less significance where the harm caused by the offending conduct was obviousbeforehand; (see: para. 41). (

v) Deterrence [67] Finally, the Court held that specific and general deterrence “should be a key component of sentences imposed for breaches ofenvironmental protection statues;” (para. 53). [68] As noted in Brown, the Court in Terroco observed that the maximum fines available under the environmental legislation beforeit were high: “This constitutes a message from the Legislature that it does not view low or nominal fines as meeting the goals of the[legislation];” ( at para. 54). [69] With regard to the primary importance to be afforded deterrence in the context of this sentencing, I have regard to the many caseswhich identify deterrence as the “main” or “primary” sentencing objective in environmental offence sentencings. (See: R. v.

Basso,2001 BCSC 801 at para. 39; R. v. Sapp, 2005 BCPC 166 at para. 10; R. v. Bayliff & Bayliff, B.C. Prov. Ct., Williams Lake RegistryNo. 36160-1, December 16, 2020 (unreported) at para. 13; R. v. Jenicia Holdings Ltd., B.C. Prov. Ct., Port Coquitlam Registry 23904-1, April 6, 2016 (unreported) at page 21; R. v. Abbott 2008 BCCA 198 at paras. 32, 33 & 49; R. v. Wiens, B.C. Prov.

Ct., PentictonRegistry, No. 45060-1, April 8, 2019 (unreported)). [70] I do not agree with any suggestion that the import of the five factors identified in Terroco decrease, from first to last; deterrencebeing last in the list, or that all of the factors are equally weighted. Rather, the primacy of culpability indicates how to conduct theanalysis in order to arrive at a proper sentence, for the offender, for the offence, in the circumstances; (para. 66).

Deterrence is ofparticular significance in a case such as this. [71] In addition to the special approach identified in Terroco, I have considered the individualized nature of sentencing as well as thelimited value of sentencing precedents where the circumstances of the offences and offenders differ.

(vi) Individualized nature of sentencing a. An offender’s particular circumstances [ 72 ] The individualized nature of sentencing is recognized in the Terroco decision, as is a consideration of the offender’s financial position.

While the latter is only one factor, the Court noted that an appropriate sentence for a large multinational corporation which has purposely ignored safety concerns [for anticipated advantage] will only be fit if the fine imposed is substantially greater than that imposed when the offender is a sole proprietor and the defence of due diligence was a “near miss;” (para. 62). [ 73 ] The case law establishes that sentences should be punitive in nature and more than a “wrist slap.” b. The limited value of sentencing precedents [ 74 ] The B.C.

Court of Appeal recently discussed the individualized nature of sentencing and the limited value that previously decided cases sometimes have, as a result, in R. v. Hamer , 2021 BCCA 297 : [140] Finally, Mr. Hamer argues that the sentencing judge failed to consider other cases where individuals in similar circumstances received a lesser sentence. Mr. Hamer relies on two Ontario trial court decisions and one Saskatchewan trial court decision for similar circumstances and the range of sentence.

When it comes to parity, unless the offence is one that is rarely judicially considered, court decisions from other provinces are generally of little value. One of the reasons that trial court judges are given significant deference in their sentencing decisions is that they know the community in which they are imposing a sentence on an offender. Relevant cases are those from British Columbia. Needless to say, cases involving legal principles are helpful from any court, particularly appellate courts, but not so in terms of the fitness or range of the sentence. [141] As noted in R. v.

L.M . , 2008 SCC 31 at para. 36 , in order to violate the parity principle, a sentence must be “a substantial and marked departure” from the sentence normally imposed for offenders in similar circumstances: [36] Owing to the very nature of an individualized sentencing process, sentences imposed for offences of the same type will not always be identical. The principle of parity does not preclude disparity where warranted by the circumstances , because of the principle of proportionality (see Dadour , at p. 18).

As this Court noted in M. (C.A.) , at para. 92, “there is no such thing as a uniform sentence for a particular crime”. From this perspective, an appellate court is justified in intervening only if the sentence imposed by the trial judge “is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes” ( M. (C.A.) , at para. 92). [Emphasis in original] [ 75 ] Counsel for Ms.

Stevikova helpfully summarized the sentencing cases relied upon by counsel to support their sentencing positions; while many are from within this province, apart from the Suchy case, none of the offences occurred in Whistler. None of them deal with factors such as the immense risk posed to the user-population that is a reality in this case; none of them deal with a flagrant disregard for community-messaging and provincial wildlife management scheme as here, with the repetition involved. [ 76 ] With regard to the cases relating to the offence of leaving attractants, I found Wiens the most helpful.

There, while in the context of a hunting business, the offender left attractants with the intention that they attract bears. From my reading of the case, it appears that attractants were left on three occasions. One bear was shot dead.

The Crown there sought fines in the range of $25,000 to $30,000, along with forfeiture of a vehicle and the return of funds spent during the investigation. [ 77 ] In Bayliff , a case involving a single day of offending in relation to driving a snow mobile in a prohibited area, in the backcountry near Likely, British Columbia, the Court noted the lack of clear signage and observed that the penalties imposed must be “both meaningful and punitive” to the accused, (at para. 13). [ 78 ] In Jenicia Holdings the offences occurred in New Hazelton.

The facts are closer to considerations aligned with negligence. [ 79 ] At paragraph 28 in Weins , Judge Daneliuk observed: [28] Fourthly, the vulnerability of the wilderness and its inhabitants is reflected by the primary sentencing objective here which is deterrence both general and specific, and many of the cases cited by Crown counsel explicitly that that the courts must send a message to the community that there will be no tolerance for these types of offences. [ 80 ] The penalty imposed in that case was $18,500. I DISCUSSION Count 2 : i. Culpability [ 81 ] Ms.

Stevikova’s conduct lies past the gravest end of the continuum measuring from “virtual due diligence” to “virtual intent.” Her actions in leaving or placing an attractant on or about her land, where there were likely to be people, in a manner which the attractant could attract dangerous wildlife to the premises, was entirely deliberate. [ 82 ] As set out in subsection 33.1(7), a person commits the offence in Count 2 if they fail to remove an attractant from their premises, or allow it to remain .

For example, if apples were to blow down from a tree and an occupant of the property failed to pick them up and remove them or failed to exercize due diligence to ensure that that was done on their behalf. [ 83 ] The situation here is at the other end of that spectrum.

[ 84 ] According to the admitted facts, bears were seen eating apples strewn on the property and bears were seen there on many days in the summer of 2018; they were seen coming and going from the property frequently; for the four weeks in August, the attractants she left on her property were voluminous: 10 cases of apples, 50 pounds of carrots and pears and up to 180 eggs weekly. People in the neighbourhood found themselves unexpectedly and uncomfortably close to the bears. She did this repeatedly, with planning. [ 85 ] Ms.

Stevikova did not leave attractants out once and then realize it was a bad idea, particularly given the actual presence of bears in proximity to her, her spouse and other users of the neighbourhood to which she was attracting the bears; rather, she repeated this offending behaviour throughout the summer for her own purposes [ 86 ] Her property is in a residential neighbourhood adjacent to forest and trails used by hikers and mountain bikers. As is set out in the Agreed Statement of Facts, there were workers in the neighbourhood and on the property over the three months that she left the attractants out.

Some of them came uncomfortably close to bears attracted by the attractants left by Ms. Stevikova on her property. [ 87 ] Her decision to commit the offence was just that: a decision to commit the offence. [ 88 ] She did her own research and consulted with an expert of her choosing, outside of the regulated wildlife management scheme and decided to act in a way that fit with her world view, rather than seeking out information and advice within the regulated management of this province’s wildlife. [ 89 ] I do not view Ms.

Stevikova’s good intentions as significantly mitigating her culpability: while her offending behaviour would have been worse if she had left the attractants with a view to hunting the bears (as in Wiens ) or for a cruel motive, I do not put the heavy weight of her motivation, described as “misguided”, by counsel, as a significant. [ 90 ] Here, while not motivated by cruelty, harm to the bears was the obvious foreseeable outcome of Ms.

Stevikova’s offending conduct, which should have been obvious to her and that it was not is, simply, inexplicable and, frankly, causes me concern with regard to specific deterrence issues: Given the messaging in the community in which the offender resides part time, it is difficult to reconcile her stated motives with her actions when the foreseeability of this outcome is factored in. She chose to step outside the provincial regulatory scheme in relation to wildlife management and do what she thought was best for the bears.

The bears were not hers and her good intentions fly in the face of common knowledge of users of this province’s wilderness: You do not leave out food or other attractants for bears or other dangerous wildlife. [ 91 ] That message, as I have said, is set out clearly for all users and residents of the Whistler community. [ 92 ] Motive is not the same as intention. [ 93 ] Thus, while a more odious or commercial motive would have certainly resulted in a more significant sentence – quite possibly a period of imprisonment - I find that her culpability is at the very high end. ii.

Prior records and past involvement of an offender with the authorities [ 94 ] Ms. Stevikova has no prior record and has no past involvement with the wildlife management authorities. That is a mitigating factor. [ 95 ] However, I find that the significance of this factor is attenuated by the reality that everyone who visits or lives in Whistler has some involvement with the wildlife management authorities, as, as I have noted above, the community has signage throughout it, forbidding people to leave attractants or feed bears. [ 96 ] Ms.

Stevikova, like many people, has chosen to move to Whistler, at least part time; this was a voluntary step taken by her for her own purposes. [ 97 ] In other contexts, where people voluntarily undertake activities in a regulated sphere, they have been found to have a heightened obligation to familiarize themselves with and adhere to the rules of conduct apposite to their chosen activity. In my view, there are parallels to be drawn. iii. Acceptance of responsibility Ms.

Stevikova entered an early guilty plea: A guilty plea is a significant mitigating factor: it is an acceptance of responsibility, an expression of remorse and provides certainty of conviction without the cost and uncertainty of trial. Counsel cited two decisions where a guilty plea during the Covid-19 pandemic was found to be of particular mitigating value; ( R. v.

Brown , 2020 BCPC 137 and Bayliff ). [ 98 ] While I do not discount that in some situations a guilty plea may have additional benefit to the criminal justice system where that system is stressed due to something like the current pandemic, the practical reality is that that was not the situation at this Courthouse in early 2021: At this Courthouse, it seemed that the trial load lessened, often as a result of litigants settling matters; adjourning them and the like.

As a result, the practical benefit derived by the criminal justice system in this case could not be said to have been significantly more than the usual benefit that such a step occasions: a guilty plea is always a significant mitigating factor. [ 99 ] With regard to Ms. Stevikova’s acceptance of responsibility and remorse, I accept that they are genuine: I accept that the outcome for the bears is not what she intended or wanted; she has made personal choices which are consistent with her care and love of animals.

I accept that she is upset by the death of the bears. [ 100 ] That said, it is difficult to understand how she could have deliberately left attractants out for the bears, posing a risk to her neighbours and community users. iv. Damage/harm

[ 101 ] Here, there was actual harm to the environment, if such a phrase can properly capture the death of a female adult bear and her two cubs. [ 102 ] While it is not clear in Terroco just whose death the Court is referring to as a “serious aggravating factor” (para. 45), I find that the death of these bears, here, is that: a serious aggravating factor. In part, because it was all so sorrowfully foreseeable to anyone with a modicum of sense and any interest in or experience of the British Columbia wilderness. [ 103 ] In addition to the actual fatal harm to the bears, the risk of harm that Ms.

Stevikova created by her leaving her purchased attractants out on her property in a residential neighbourhood in Whistler is grave: the bears did not remain on her property; they travelled back into the adjacent forest, which links to and intersects with hiking trails, bike paths, backyards, golf courses, parking lots, all used and frequented by Whistler residents and visitors of varying and often limited wilderness experience.

If the Conservation Officers could not haze the bears (including the two yearlings who are still in the forest, habituated), I am of the view that an inexperienced visitor would be at serious risk, particularly if they happened to be carrying food or were with a small child or a dog and encountered any of the bears, habituated. [ 104 ] As noted in Terroco , an offence being committed in people-sensitive locations is an aggravating factor. v. Deterrence [ 105 ] As mentioned, I view deterrence as the main sentencing objective here. vi.

Other considerations [ 106 ] The potential for controversy arising at trial around the provincial practices relating to the destruction of dangerous wildlife was proffered as a mitigating factor on sentence. I do not agree that avoiding that issue from arising is of particular benefit to society; the Courts do not shy away from controversial matters and a trial judge has the ability to curtail irrelevant issues from taking over proceedings. I put no weight on this as a mitigating factor. [ 107 ] With regard to the impact of the media attention, counsel relied on R. v.

Devic, 2018 BCPC 257 , in support of the submission that the media coverage in this case is a collateral consequence properly considered as a mitigating factor. [ 108 ] In my view, Devic is highly distinguishable from the case here: There, the charge was the criminal offence of luring; the offender was a police officer and there was a community-based group involved. The Court there found that the offence had “received wide public attention in various forms of media,” (para. 37), and concluded that the offender had “already suffered immensely from the collateral consequences of his offence,” (para. 43).

He also noted that “collateral consequence suffered by an offender cannot eclipse the need for a sentence that emphasizes general deterrence and denunciation,” (para. 36). [ 109 ] There is no evidence that Ms. Stevikova has suffered immensely from the collateral consequences here, as found in Devic . That said, I accept that she has been impacted to some degree and factor that into the considerations of specific deterrence.

I accept counsels’ submissions that the articles are not limited to the local area and are available on the internet. [ 110 ] Finally, while counsel both viewed the offender’s $5000 donation made six days before she pleaded guilty to these offences as mitigating, I am not persuaded that it is appropriate to view the donation as such: Counsel have maintained that Ms. Stevikova’s financial circumstances are of limited relevance to this proceeding, but it is clear that she has the resources to make this donation, which is out of the reach of many people who come before this Court.

Given the timing of the donation, in relation to the January 25 th Court appearance, there is a spectre, in my view - or the risk of a perception - that an offender can receive a lower than appropriate sentence in the Court system if they have the means to make such a donation. That is a spectre to be avoided. CONCLUSION RE: COUNT 2 [ 111 ] Ms. Stevikova’s culpability is at the highest end, past the usual endpoint of “near-intent” on the strict liability culpability continuum.

Her actions were deliberate and she deliberately side-stepped the province’s wildlife management scheme. [ 112 ] Her offending actions were repeated and frequent throughout the summer of 2018. [ 113 ] Actual harm, in the form of death, to three black bears was realized. [ 114 ] Grave risk to the residents and visitors to Whistler were created by her actions. [ 115 ] She has entered a guilty plea and expressed remorse. She no prior record nor did she have direct interaction with Conservation Officers prior to their detecting her offending behaviour in September, 2018.

She has experienced the discomfort of media attention arising from the offences. [ 116 ] She is an educated and sophisticated person; she simply chose to pursue a course of action that fit with her view of the world. She ceased working voluntarily a number of years ago; I do not understand that she is impeded from earning an income. She works when in Whistler at an adventure school and earns $36,000 annually.

I do not think that that annual figure comes close to representing her actual financial picture, but I will hear submissions with regard to time to pay. [ 117 ] She has chosen to live in Whistler for half the year. [ 118 ] Returning to the fundamental principle of sentencing, and having regard to the special approach to be taken here, I view Ms.

Stevikova’s culpability as on the highest end and I view the offence as grave, in relation to the foreseeability of the harm to the bears and to the public, as well as the actual harm to the wildlife, and the repetitive and deliberate nature of the offence of her leaving attractants on her property throughout the summer of 2018.

[ 119 ] Taking all of the factors into account, the sentence for the offence in Count 2 is a financial penalty of $35,000; it will be apportioned as a $500 fine and a $34,500 contribution to the Foundation. [ 120 ] I will hear submissions with regard to time to pay. Count 3 : i. Culpability [ 121 ] Ms.

Stevikova intended to feed the bears and did so, for her own purposes, described above. [ 122 ] Her motives, described as “mis-guided” by counsel, do not significantly reduce her culpability, given her decision to disregard the community’s clear prohibition against her chosen course and given the foreseeability of the harm that was realized here. ii.

Harm [ 123 ] The offence in subsection 33.1(1) of the Wildlife Act is aimed at protecting dangerous wildlife from the fate of the sow and her two cubs, here, as a result of habituation due to people’s feeding them, and is, as well, aimed at protecting people - including from themselves. [ 124 ] While the offence under s. 33.1(1) does not contain the requirement that the offending conduct occur where people are present, or are likely to be, I find as a fact that Ms. Stevikova, herself, was present when feeding the bears.

While she may not believe that it is so, I find as a fact that she was at risk when committing this offence. iii . Deterrence [ 125 ] I place general deterrence as the primary sentencing principle here: a sentence that has at its goal a message to others who, like this offender, for their own purposes, may create risk to dangerous wildlife, to other people that that wildlife encounters, once habituated, but also significantly, to themselves.

CONCLUSION RE: COUNT 3 [ 126 ] I have had regard to the mitigating factors, discussed above in Count 2, also the aggravating factors: there is planning, deliberateness and repetition in regard to this offence, as well. That said, I accept counsels’ submissions that only three or four times of actual feeding was entailed during the offending period. [ 127 ] The sentence on Count 3 is a financial penalty in the amount of $25,000, comprised of a fine of $500 and a contribution to the Foundation of $24,500.

While a more serious offence than the offence in Count 2, and while subject of a higher potential penalty under the Wildlife Act – by both fine and imprisonment – I accept that this offence was not repeated as often as was the leaving of the attractants and as result the risk of harm to the public was less foreseeable as well. [ 128 ] In addition to considering the facts and factors above with regard to Count 3, I have also considered the sentence imposed in relation to Count 2 and have to mind the principle of totality. [ 129 ] Finally, if only the offence in Count 3 were before me, (if the rule against multiple convictions had applied), on all of the facts, a financial penalty of $60,000 in relation to that charge, by way of a $500 fine and an order that the remainder be by way of a contribution of $59,500 to the Foundation is the sentence that I would have imposed, to address the offender’s culpability and gravity in this case, with the special approach to sentencing in mind. [ 130 ] Having now heard submissions from counsel on the issue, there will be six months’ time to pay and a victim fine surcharge in the amount of $150. _____________________________ The Honourable Judge L.

Smith Provincial Court of British Columbia