R. v. Fontaine & Lohr-Mansbridge, 2021 MBPC 62

CITATION: R. v. Fontaine & Lohr-Mansbridge, 2021 MBPC 62 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) I. Singh for the Crown ) -and- ) ) Richard Gilbert Fontaine ) R. Gill for the Accused -and- Jeffrey Lohr-Mansbridge ) ) ) ) M. Dyck for the Accused ) ) ) Reasons for Decision Delivered: December 16, 2021 CARLSON, P.J. INTRODUCTION [ 1 ] Each accused is charged with two offences under section 80(1) of The Wildlife Act of Manitoba (the “ Act ”). Both charges are alleged to have occurred in the very early morning hours of November 10, 2020 near St. Labre, Manitoba.

Specifically, it is alleged that the accused were hunting at night without a permit, contrary to section 12(1) of the Act , and that they were hunting on private land, without permission of the owner, contrary to section 33(1)(

a) of the Act . ISSUES [ 2 ] I must first decide if the Crown has proved beyond a reasonable doubt that the accused, or either of them, were “hunting” at the alleged time and place, within the definition in

section 1 of the Act . [ 3 ] If I conclude that they were “hunting”, then I must go on to decide if the Crown has proved beyond a reasonable doubt that they were “hunting at night” in violation of section 12(1) of the Act.

Although section 12(1) sets out circumstances in which a person is deemed to be “hunting at night”, if I am not satisfied beyond a reasonable doubt that the accused were in fact “hunting” at the relevant time, they cannot be found to have been “hunting at night”. [ 4 ] If I conclude that they were “hunting”, then I must decide if the Crown has proved beyond a reasonable doubt that they were hunting on private land. If they are found to have been hunting on private land, then the onus shifts to the accused to prove they had permission of the landowner.

EVIDENCE BEFORE THE COURT [ 5 ] The Crown relies on the evidence as agreed to by counsel, the exhibits filed, and the evidence of Conservation Officers Nathan Kroeger and Adam Lavallee. [ 6 ] Mr. Fontaine testified on his own behalf and did not call any other evidence. [ 7 ] Mr. Lohr-Mansbridge elected, as is his right, not to testify and he did not call any evidence. The Crown Evidence [ 8 ] The Crown called Manitoba Conservation Officers Nathan Kroeger and Adam Lavallee to testify.

Their evidence was essentially the same in most respects. [ 9 ] Officers Kroeger and Lavallee testified that they were on duty starting at 7:00 p.m. on November 9, 2020 and their shift continued through the night and early hours of November 10, 2020. They were tasked by a superior to patrol an area they understood was one in which people unlawfully hunted at night, an area near St. Labre, Manitoba. Google maps were introduced into evidence as

exhibits, showing the location of the area where the officers parked their vehicle, behind some trees, off a gravel road near the dead end of Road 23 North. The landscape there was mostly open agricultural fields with scrub brush. [ 10 ] The sun had set a couple of hours before they arrived at their location at 9:06 p.m. [ 11 ] At about 12:10 a.m. on November 10, 2020 they observed a vehicle coming down Road 23 North and turn north onto Road 64 East.

Both officers observed that the vehicle had what appeared to be a curved light bar with lights on that were much brighter than the vehicle’s headlights, which were also on. The light bar shone light not just straight ahead but also out to both sides at about a 45 degree angle. They both observed light, which they described as being from flashlights, from the windows of the vehicle. Officer Kroeger said the light was shining out of the passenger window. Officer Lavallee said that he observed light shining out of both of the side windows, making sweeping motions intermittently, over the fields.

Officer Lavallee said that he could see the vehicle coming for about three miles. The vehicle continued north and then turned back south. Then the vehicle turned east on Road 23 North and drove straight toward the officers’ vehicle. They saw flashlights make four sweeps to the north of Road 23 North into the field the officers’ vehicle was parked in.

Officer Lavallee activated the emergency lights on their vehicle and initiated a head on traffic stop of the vehicle they had been observing. [ 12 ] The land they were on, and which they observed the vehicle drive through, is private land, the officers having confirmed same with the Crown Lands Manager. [ 13 ] Once the vehicle had stopped, Officer Kroeger used a loudspeaker to identify himself and Officer Lavallee as conservation officers and to tell the occupants of the truck to put their hands up. The driver, shortly afterwards identified as the accused Mr. Fontaine, did so and got out of the truck as directed.

He put the vehicle key on top of the truck as directed, and walked backwards toward the officers’ voices. Mr. Fontaine was arrested for hunting at night using lights. Then the passenger, later identified as Mr. Lohr- Mansbridge, was directed to get out of the truck, to walk backwards toward the officers’ voices, and he was also arrested for night hunting. The arrests were made at 12:20 a.m. Mr. Fontaine advised, when asked if he had any weapons, that he had a knife in this boot, which the officers took.

Both accused were given their Charter rights, which they said they understood. [ 14 ] Officer Kroeger searched the truck. A Savage Model 11 .308 calibre rifle was located to the right of the driver’s seat, in between the driver’s seat and centre console according to Officer Kroeger. It is an agreed fact that this rifle was an operable firearm. It was not loaded. Officer Kroeger observed a magazine on the centre console.

It was agreed that there were four live rounds of .308 ammunition located on the centre console under the magazine for the rifle, and that those rounds were capable of being discharged from that firearm. It was also agreed that a further seven rounds of .308 ammunition were found in the back of the vehicle, and were capable of being discharged from the same firearm. Photos of the items, showing where they were located in the truck, were entered as exhibits. Officer Kroeger testified that also located were a flashlight and a green laser pointer just behind the centre console.

Photos of those items were introduced and marked as exhibits. Officer Kroeger, himself an experienced hunter, testified that a laser can be used for blinding animals for the purpose of immobilizing them so they can be shot at night. If a bright flashlight is shone at an animal it will temporarily blind the animal, but not to the extent a laser can. Also located in a storage container under the centre console were a hunting knife, some .22 calibre ammunition, a hunting licence and a game tag for white tail deer issued to Mr. Fontaine. [ 15 ] The officers identified both accused by photo identification.

Both accused asked to and were able to speak to counsel in private by using Officer Kroeger’s cell phone. A tow truck arrived for the seized truck at 1:54 a.m. and they left the scene at 2:15 a.m. The accused were released with appearance notices. [ 16 ] Mr. Fontaine made comments to the officers on scene, admitting that he was the owner of the truck, the rifle and all items in the truck. Those admissions were not challenged as to voluntariness and they form part of the evidence.

All of those items, including the truck, were seized. [ 17 ] On a further search of the truck at the compound, Officer Kroeger located a bag with what appeared to be white tail deer meat, a metal container with two .22 calibre magazines, and an assortment of live .22 calibre ammunition. No .22 calibre firearm was found. Officer Kroeger noted that the light bar on the top of the truck was permanently secured to the vehicle. [ 18 ] Neither accused produced a permit allowing them to hunt at night. Neither accused advised the officers they had permission from the landowner to hunt on that property.

Posted on the field was a sign that said “no hunting/no trespassing”. [ 19 ] Officers Kroeger and Lavallee both testified they themselves are experienced hunters and familiar with .308 bolt action rifles, which is the type of rifle located in the truck. Both officers agreed it would take less than 10 seconds to make the firearm operational by loading one cartridge. Officer Lavallee said it would take him two seconds; or 15 to 20 seconds to load four rounds in the magazine and chamber it around.

Officer Kroeger agreed that there are some .308 rifles that require the magazine to be in and won’t work with just one cartridge. He also admitted that if the rifle jams, loading it could take longer. Officer Kroeger testified that with a .308 round, one could shoot any big game animal in Manitoba. Defence Evidence [ 20 ] Mr. Fontaine testified that he did not intend to shoot anything during the night of November 10, 2020. He testified that he and Mr.

Lohr-Mansbridge were driving down gravel roads and were on that particular property, which he knew was private property, for the purpose of seeing if there were alfalfa fields there. If there were, he planned to ask permission of the landowner to hunt there another time. [ 21 ] Mr. Fontaine’s evidence was that he had been hunting all day on November 9, 2020 from sunup to sundown, by himself, on Crown land in Marchand, Manitoba. He had been using the same vehicle that was ultimately seized by the officers. He was not successful in shooting a deer that day.

At sundown, he unloaded his firearm by removing the clip and all bullets from the magazine and went home. He kept the rifle between the driver’s seat and the centre console, and put the ammunition and magazine on the centre console. Those were his regular practices. He then picked up his friend, Mr. Lohr-Mansbridge, and they went for supper at Smitty’s in Steinbach, Manitoba. He left the rifle, magazine and ammunition in the vehicle where they were, and covered the rifle with a jacket

while they were in the restaurant. He agreed that there was no trigger lock on the rifle. There was a green rifle case in the truck,underneath a pizza box. When they got back into the vehicle after supper, he removed the jacket covering the rifle, because the jacketwas uncomfortable against him. After that they went to a friend’s home to help skin and debone a deer his friend had shot. They were atthe friend’s home for about three and a half hours, and left around 11:15 p.m. or 11:30 p.m. They then spent time driving around LaBroquerie, Manitoba and ended up driving on gravel roads. Mr.

Fontaine said he was looking for alfalfa fields, so he could askpermission of owners of such fields to hunt later that week. He said that Mr. Lohr-Mansbridge was just along for the ride. He said thatboth he and Mr. Lohr-Mansbridge can identify alfalfa by the look of it. He said he was not familiar with the area. They were using thelight bar on top of the truck, and both of them were holding flashlights and shining flashlights to see if the fields were alfalfa fields ornot. He testified that they were not hunting, and were not looking for deer or any vertebrate animals at that time.

He said he would nothave fired at an animal had he seen one. His evidence as to the traffic stop was consistent with the evidence the officers gave. As to therifle, he said that it would take about 30 seconds for him to load it. It is a model that cannot have just one cartridge put in it, but requiresthe cartridges to be put into the magazine and the magazine then attached to the rifle. LAW AND ANALYSIS What does “hunting” mean, within the definition of the Act? [22] “Hunting” is defined in

section 1 of the Act as meaning “chasing, driving, flushing, attracting, pursuing, worrying, followingafter or on the trail of, searching for, shooting at, stalking or lying in wait for wildlife, whether or not the wildlife is then or subsequentlycaptured, killed, taken or wounded”. [23] In this case, there was no evidence that the conservation officers, the accused, or anyone else, actually saw any wildlife (as“wildlife” is defined in

section 1 of the Act) in the fields that the accused were driving in during the night of November 9 and into theearly morning of November10. Nor was there any admissible evidence that any wildlife were, in fact, actually present there at that time. [24] Accordingly, the type of behaviour the accused would have had to be engaged in at the time, in order to be “hunting”, would be“searching for” wildlife. [25] In R. v.

Beaulieu, 2015 MBPC 24, Judge Finlayson concluded, after considering the Webster’s Dictionary definition, that“searching” involves something more thorough or diligent than just looking for something. “Looking” is not included as one of theactivities within the definition of “hunting” in the Act. [26] In R. v. Daniels et al., (MB CA), 1984 31 Man. R. (2d) 45 (C.A.), the Manitoba Court of Appeal made itclear that an intention to shoot game once located is required to constitute “hunting”. [27] Justice Bond, in R. v.

Houle and Tarty, 2018 MBQB 128, stated at para. 27 that an intention to shoot may be inferred from thecircumstances, and that the state of readiness of a firearm, or lack of such readiness, is only one factor to be considered. Approach to Analysis [28] Since one of the accused, Mr. Fontaine, testified, I need to assess the evidence within the framework set out by the SupremeCourt of Canada in the case of R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. Mr. Fontaine does not really dispute the factsalleged by the Crown witnesses.

But he disputes that he and his co-accused were “hunting”, saying that they had no intention to shootany animal that night, and he provides an alternate explanation as to what they were doing when the vehicle they were in was stopped bythe conservation officers. [29] Further, given that the Crown’s evidence is circumstantial, I also need to consider the approach set out by the Supreme Courtof Canada in R. v Villaroman, 2016 SCC 33, and decide whether or not the only reasonable inference to be drawn from the facts that Iaccept is that the accused were “hunting”.

Analysis [30] I adopt the approach used by Judge Finlayson in Beaulieu. [31] The evidence of the conservation officers and of Mr. Fontaine as to the facts was essentially the same.

There is no reason forme to disbelieve any of the witnesses. [32] The evidence of the Crown - the time of night being just after midnight; the location of the alleged offence, being openagricultural fields; the use of bright lights to highlight and possibly freeze targets; the location of the rifle beside the driver and theaccessibility of the magazine and companion ammunition – these do in my view, make out a prima facie case that the accused weresearching for wildlife at the alleged time. [33] But, Mr. Fontaine gave evidence on one point that the officers could not testify to.

That is as to the intention of the accused. Mr. Fontaine testified that they did not have the intention required for a finding that they were hunting. He testified they never intendedto shoot anything that night. [34] Mr. Fontaine’s evidence is that he had hunted all day. He had gone home and taken the magazine off the rifle and taken thebullets out. He said they were just driving around gravel roads, using the lights on the truck and flashlights to look at fields to see if therewas alfalfa, to find potential future hunting spots. [35] Applying the test in R. v. W.(D.), if I believe Mr.

Fontaine, or if his evidence leaves me with reasonable doubt as to intention, Iwould need to acquit him of “hunting”. If his evidence does not leave me with reasonable doubt that he had the requisite intention forhunting, then I look at the evidence I do accept and decide if the Crown has proved beyond a reasonable doubt that the accused were“hunting”. The evidence of Mr. Fontaine is not to be considered in a vacuum but in the context of all the evidence (R. v. Menow, 2013

MBCA 72 (CanLll) . [ 36 ] Mr. Fontaine gave his evidence in a straightforward way. His evidence was not shaken on cross-examination. He candidly agreed that he left his rifle beside the driver’s seat when he was not in the vehicle. Although a reasonable person might think it untenable that someone would leave a firearm beside the driver’s seat with ammunition and a magazine compatible with that firearm unsecured in a vehicle, and not put it away in the gun case when the gun case was present in the vehicle, Mr. Fontaine did not try to avoid those facts.

He did not try to explain why it would be reasonable or not unsafe to do that. He did not dispute any of the facts alleged by the Crown. His evidence as to lack of intention to shoot was corroborated, to some extent at least, by the facts of the case. His rifle was not loaded. Although the magazine and ammunition were accessible, his undisputed evidence was that that particular model of rifle could not be loaded with one bullet, and could not be loaded without the magazine. Four rounds would be loaded and then chambered around. If the magazine was not used, the rifle would not fire. Mr.

Fontaine’s evidence is that it would take him roughly 30 seconds to load the rifle. There was no Crown evidence as to how long the lights on top of the truck could be expected to freeze a target; it was agreed a laser could freeze a target more effectively, but the laser was behind the console, not right by the rifle or the driver. When the truck was stopped by the conservation officers, there was no evidence that either of the accused was fumbling with the rifle or the magazine.

The facts of the case, including the state of readiness, or lack of readiness, of the rifle, magazine and ammunition, are consistent with Mr. Fontaine’s evidence that he had finished hunting for the day. Further, there was no evidence that any wildlife had actually been seen in those fields that night by anyone. [ 37 ] Is it suspicious that Mr. Fontaine and Mr. Lohr-Mansbridge were driving around in the middle of the night with the light bar on and moving flashlights over the fields? Yes, of course it is. [ 38 ] While I cannot just say I believe Mr.

Fontaine’s evidence that they were just looking to see if the fields had alfalfa in them and did not intend to shoot wildlife, even if they saw some that night, given all the circumstances, including that the rifle was not loaded, his evidence does leave me with reasonable doubt that they were hunting. [ 39 ] The inference in the Daniels case was that light was being shone from the vehicle in furtherance of an intention to shoot deer if the occupants of the vehicle spotted some.

But in Daniels, the firearm, amongst the accused, was loaded at the time the accused were stopped. [ 40 ] I cannot draw the same inference as was made in Daniels unless I reject the evidence of Mr. Fontaine, and/or find him not to be credible as to his intention.

I have no basis to reject his evidence, or find him not to be credible. [ 41 ] While it is certainly a reasonable inference from the evidence that the accused were indeed hunting, in my view, it is also a reasonable inference, although a less likely probable one, that they were indeed driving around, using lights to find potential future hunting spots and to do so were looking for alfalfa fields. [ 42 ] In the circumstances, although Mr. Fontaine and Mr. Lohr-Mansbridge were more likely than not, hunting at the relevant time, that is not the criminal standard. Mr.

Fontaine’s evidence as to their intention and what they were doing, being uncontradicted and one reasonable inference to be drawn from the evidence, leaves me with reasonable doubt that they were hunting. [ 43 ] Since I am not satisfied beyond a reasonable doubt that the accused were hunting, there is no need to address specifically the night hunting and/or hunting on private land allegations. CONCLUSION AND DECISION [ 44 ] Having reasonable doubt as to whether they were hunting, I must acquit Mr. Fontaine on both charges. [ 45 ] The vehicle, rifle, and all of the gear in the truck were owned by Mr. Fontaine. Mr.

Lohr-Mansbridge, as Mr. Fontaine said, was “just along for the ride”. There is no evidence to suggest Mr. Lohr-Mansbridge took any actions that would persuade me beyond a reasonable doubt that his intention was any different than Mr. Fontaine’s, and I therefore also find Mr.

Lohr-Mansbridge not guilty of both offences. [ 46 ] Despite the evidence supporting that they were indeed on private land and that they had equipment in use that is consistent with hunting at night, because I am not satisfied beyond a reasonable doubt that they were “hunting”, an essential element of both offences charged, I must find both accused not guilty and acquit them. “Original signed by” C. CARLSON