R. v. Ball Date:, 2011 BCPC 92

Citation: R. v. Ball Date: 20110211 2011 BCPC 0092 File No: AH00191510 Registry: Willams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Wyatt Lee BALL REASONS FOR JUDGMENT OF JUDICIAL JUSTICE OF THE PEACE H W GORDON Appearing for the Crown: Calvin Groll Appearing on their own behalf: Wyatt L. Ball Place of Hearing: Williams Lake , B.C.

Date of Hearing: February 10, 2011 Date of Judgment: February 11, 2011 Introduction [ 1 ] These reasons are an edited version of oral reasons I gave in this case on February 11, 2011. [ 2 ] The Disputant, Wyatt BALL, is charged by way of violation ticket with lighting, fuelling or using an open fire at a time when open fires were banned in the area, contrary to section 10(3) of the Wildfire Act . [ 3 ] The essential facts are not in dispute. From the evidence, I am satisfied beyond a reasonable doubt that Mr.

Ball lit, fuelled and used a fire at a time when open fires were banned at Tyee Lake. [ 4 ] The issue was whether the fire was an open fire within the meaning of the Act. Only open fires were banned at this time in this area. The Legislation

[ 5 ] Wildfire Act, SBC 2004

Chapter 31 Restrictions on open fires 10

(1) Despite a regulation enacting the prescribed circumstances referred to in section 5 (1) or 6 (1) in which an open fire may be lit, fueled or used, if an official considers it necessary or desirable to limit the risk of a fire or to address a public safety concern, the official, by order for a specified area, may (

a) restrict or prohibit the lighting, fueling or use of an open fire, or (

b) require all persons lighting, fueling or using one or more open fires in the area to cease doing so and to extinguish the open fire or fires.

(2) A restriction or requirement under this

section may be different for different (

a) types, categories or subcategories of open fires, (

b) categories of persons, places or things, or (

c) circumstances.

(3) A person must not carry out an activity that is the subject of a restriction or prohibition under subsection (1) (a).

(4) Each of the persons that is the subject of an order under subsection (1) (

b) must comply with the order. [ 6 ] Wildfire Regulations B.C. Reg. 38/2005 1

(1) In this regulation: “Act” means the Wildfire Act ; "campfire" means an open fire that meets both of the following requirements: (

a) the open fire burns material in one pile no larger than 0.5 m in height and 0.5 m in width; (

b) the open fire is lit, fuelled or used (

i) by any person for a recreational purpose, or (ii) by a first nation for a ceremonial purpose;

(2) In the Act: "open fire" does not include a fire vented through a structure that has a flue and is incorporated in a building. Facts [ 7 ] The essential undisputed facts are these. By order of an authorized official of the B C Forest Service dated July 15, 2009, and effective at noon on July 24, 2009, a Category 1 open fire within the meaning of

section 20 of the Wildfire Regulations [as there is no reference to a category 1 open fire in the Regulation, I assume for the purposes of this decision, that it is the same as a campfire] was prohibited throughout an area known as the Cariboo Fire Centre. This order was still in effect on August 18, 2009. [ 8 ] Mr. Ball has a family recreational property on the shores of Tyee Lake. Tyee Lake is east of Williams Lake and within the Cariboo Fire Centre. [ 9 ] On the Ball property was a fairly large shelter. There were pictures in evidence of this shelter.

That shelter is not unlike the type of covered picnic shelter one finds in many of our provincial campsites. By my estimate, from the pictures in evidence, the shelter is more than 15 m long by at least 5 m wide. This shelter is supported by substantial beams and trusses. It has an A-line roof about 3 m above ground level, covered by what appears to be green galvanized metal roofing. Portions of the shelter have siding to, or close to, the roof line. [ 10 ] In another portion of the shelter is what I describe as a large fire pit. It is circular, sunken and appears to be completely lined in heavy concrete blocks.

One half of the pit is surrounded by a semi-circular wall of concrete blocks rising about a metre or more above the floor level. It surrounds about half the fire pit. The pit is surrounded by non-flammable flooring. Above the pit, about 2.5 m above the floor level, is a galvanized or stainless steel hood, the same diameter as the pit. It leads into a flu that extends about a metre above the peak of the roof. It appears to be the type of metal flu one might find in a residential fireplace, with a rotating cap on its top.

The sides of the shelter on either side of the fire pit have no siding and it is completely open to the outdoors. [ 11 ] Surrounding the shelter is a grassed area, which on this date, was partially dry. There are a few large evergreen trees nearby.

[ 12 ] Mr. Ball testified that on the evening of August 18, 2009, he had intended to cook his family’s dinner on a gas barbecue, but the tank was empty. So he lit a fire in the pit in the shelter to cook it. This fire was reported by others to the Fire Report Centre. The next day, an experienced fire service officer, Raymond Wiggins, and another officer, visited the Mr. Ball’s property and spoke to Mr. Ball. Mr. Ball advised Mr. Wiggins of the events described above. Mr. Wiggins also observed what looked to be fairly fresh ashes in the pit. [ 13 ] Mr.

Wiggins concluded that this pit was an open fire pit, the fire the evening before was an open fire, and because of the fire ban, that Mr. Ball had committed an offence. Based on this conclusion, he issued Mr. Ball a violation ticket. Analysis [ 14 ] The outcome of this charge is centred on the meaning of “open fire” and whether the fire burning in Mr. Ball’s fire pit was an open fire. [ 15 ]

Section 1 of the Wildfire Regulations defines “open fire” as “does not include a fire vented through a structure that has a flue and is incorporated into a building”. In other words, it is defined as what it is not. I was not referred to any statutory definition of either structure or building. I was referred to several dictionary

definitions of those terms. [ 16 ] Parsing the definition of open fire, if a fire is vented through a structure that has a flue, and that structure is incorporated into a building, then the fire is not an open fire. [ 17 ] In my view, this shelter is a building. Webster’s defines building as “a usually roofed and walled structure built for permanent use”. The shelter at issue has walls and a roof. It is relatively large, it is substantially structurally constructed, and it is permanent. That constitutes a building. Any definition from a dictionary must be considered in the context of its use in the legislation.

Not every definition of a word or term will apply. The meaning quoted above is not only its most common meaning, but it is consistent with its use in the

section of this legislation and the context of its use. [ 18 ] Also in my view, the fire pit within the building is a structure with a flue. The Crown argues that because the fire pit is not fully enclosed, it is not a structure. The definition of open fire does not define what it is, but what it is not. If the law makers had intended that a structure be completely enclosed, such as a fireplace, or wood stove, it is likely it would have used the word “enclosed”.

So, in my view, a structure with a flue may be something less than fully enclosed. [ 19 ] As a guide on the meaning of structure in this context, I ask myself, what might have been the intention of the law maker in enacting this definition. For that intention, I look to what is likely the mischief the legislation is intended to address. It would seem likely that the mischief is a fire that creates the risk of sparks flying away to light flammable material nearby. The Act is the Wildfire Act . The term in issue is “open fire”.

Those terms must give us some guidance of the context and the mischief. [ 20 ] It seems to me that the fire pit and shelter in issue were constructed with this mischief partially in mind. The pit and semi circular wall around it are substantial and made of concrete blocks. It is surrounded by non-flammable flooring. The large hood would likely capture the heat, smoke and sparks that rise from the fire. The hood vents into what looks to be a double insulated flue that has a rotating cap on top. [ 21 ] I conclude that this fire pit is perhaps not as risk free as a fully enclosed fireplace, but is nearly so.

From my personal experience, of which I take judicial notice, sparks can escape through a flue of a fully enclosed fireplace. So if escaping sparks from a wood fire was the only mischief, one would have thought the law makers would have banned all wood fires in a high risk season. [ 22 ] I conclude also the definition of open fire is less than clear. Because the definition does not use the term “fully enclosed”, I conclude it can mean something less. How much less is the question. On the facts of this case, I find this fire pit does not cross the threshold to be an open fire.

If one might equally conclude that this does or does not fit within the exclusion, the tie shall go to the Disputant. Mr. Ball is being charged with an offence with penal consequences. It is within the power of the law makers to bring greater clarity to the meaning of open fire if a fire in fire pits like the one in issue are intended to be open fires. [ 23 ] I have considered the decision in this Court on the same issue by my colleague, JJP Adair. The case is R. v. Hus , a decision given on December 1, 2010 out of the Nelson Registry.

That case has given me guidance in my consideration of this one but the facts in that case were different. Under consideration in Hus was a fire burning in a 5 gallon metal pail, covered by a wire rack, much as one might find in a stove. I distinguish the case on its facts. Decision [ 24 ] I therefore find Mr. Ball not guilty of the offence charged.. __________________ H.W. Gordon Judicial Justice