R. v. McDonald Date:, 2011 BCPC 431

Citation: R. v. McDonald Date: 20111018 2011 BCPC 0431 File No: AH13648029-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GEOFFREY G.R. McDONALD REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.N. HAMILTON Counsel for the Crown: P. Schmidt, Q.C. Counsel for the Defendant: B. Gilson, Q.C. Place of Hearing: Prince George, B.C. Dates of Hearing: September 20, 22, 2011 Date of Judgment: October 18, 2011 Introduction [ 1 ] What did the British Columbia Legislature intend on including by reference to “every public road of two lanes or more” when it passed into law

section 12 of the Closed Area Regulation to the Wildlife Act R.S.B.C. 1996 c. 488? The answer to this question is central to this case and will determine whether or not I find Mr. McDonald guilty of the offence of discharging his firearm in a no shooting area contrary to

section 32 of the Wildlife Act . [ 2 ] This is the second time this matter has gone to trial. I understand that Mr. McDonald was convicted at the conclusion of the first trial in September 2010, but that conviction was overturned on appeal and the matter was remitted back to Provincial Court for a second trial. [ 3 ] The case proceeded before me on September 20, 2011 and again briefly on September 22, 2011, and I reserved judgment. I have been told by counsel for the Crown and counsel for Mr. McDonald that this is a case of first instance.

In other words, counsel were unable to find another decision from the courts of British Columbia that considered the definition of “every public road of two lanes or more” as set out in

section 12 of the Closed Area Regulation, or “a two lane road” as it was cast by counsel before me. [ 4 ] I was further advised by counsel that the definition of “every public road of two lanes or more” is of more than passing interest to hunters in British Columbia as they struggle to know where they are, and are not, permitted to discharge their firearms when hunting. Below I define “a road of two lanes or more” as that phrase is used in

section 12 of the Closed Area Regulation to the Wildlife Act . It was conceded before me that the road in question in this case was a public road. Accordingly, my decision concerns only the question of what is “a road of two lanes or more.” While the parties reduced that phrase to “a two lane road” in their written argument and submissions before me, I prefer to maintain the language used in the Regulation; namely, “a road of two lanes or more.” The Evidence

[ 5 ] The evidence before me was tendered by way of written Admissions of Fact signed by Mr. McDonald on September 17, 2010. The Admissions of Fact were marked as Exhibit 1 in this trial collectively with two photographs and a copy of the Violation Ticket issued to Mr. McDonald on November 16, 2008. I heard no viva voce evidence. [ 6 ] On November 16, 2008, Mr. McDonald shot a mule deer near the Chilako Station Road #311 which is a gravel and dirt road near the city of Prince George, British Columbia.

Chilako Station Road #311 has no lane markings, no midline, no stop lines or any other traffic markings, nor does it have a paved surface of any kind. [ 7 ] The two photographs tendered into evidence show Chilako Station Road #311 on November 16, 2008, and April 7, 2010 at or near the site where Mr. McDonald harvested the mule deer. The photograph taken on April 7, 2010 depicts Chilako Station Road #311 with two vehicles, they appear to be pick-up trucks, side by side. There is clearly sufficient space on Chilako Station Road #311 for these two vehicles to safely pass each other. [ 8 ] It is admitted by Mr.

McDonald that Chilako Station Road #311 is a public road that is maintained by the British Columbia Ministry of Transportation. Statutory Provisions [ 9 ] On November 16, 2008, Mr. McDonald was issued a Violation Ticket by a Conservation officer charging Mr. McDonald with discharging his firearm in a no shooting area in violation of

section 32 of the Wildlife Act . The statutory provisions relevant to determining Mr. McDonald’s guilt or innocence are the following: (

a) Wildlife Act

Section 32 A person who discharges a firearm in a no shooting area commits an offence. Section 108 (1) The Lieutenant Governor in Council may make regulations referred to in

section 41 of the

Interpretation Act .

(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows: (

n) designating no shooting areas; (

b) Transportation Act

Section 1 In this Act: "highway" means a public street, road, trail, lane, bridge, trestle, tunnel, ferry landing, ferry approach, any other public way or any other land or improvement that becomes or has become a highway by any of the following: (

a) deposit of a subdivision, reference or explanatory plan in a land title office under

section 107 of the Land Title Act ; (

b) a public expenditure to which

section 42 applies; (

c) a common law dedication made by the government or any other person; (

d) declaration, by notice in the Gazette, made before December 24, 1987; (

e) in the case of a road, colouring, outlining or designating the road on a record in such a way that

section 13 or 57 of the Land Act applies to that road; (

f) an order under section 56 (2) of this Act; (

g) any other prescribed means; Section 42 (1) Subject to subsection (2), if public money is spent on a travelled road that is not a highway, the travelled road is deemed and declared to be a highway. (2) Subsection (1) does not apply to any road or class of roads, or to any expenditure or class of expenditures, that is prescribed by the regulations. (

c) Wildlife Act Closed Area Regulation Section 12 (1) For the purposes of subsections (2) and (3) and of

section 31 of the Act, "highway" means every public road of two lanes or more that is maintained by the ministry of the minister responsible for the administration of the Transportation Act , and includes all other public roads of two lanes or more within the Province that are operated or maintained by the government of another province or of a

territory or by the government of Canada.

(2) For the purpose of subsection (3), "road allowance" means the ditch to the lesser of (

a) a distance of 15 m from i. the midline of a road of less than three lanes, or ii. the nearest edge of the paved surface of a highway with three lanes or more, or (

b) the boundary of private property as indicated by i. a fence, or ii. the limit of cultivated land.

(3) The road allowance of any highway is designated as a no shooting area, and for the purposes of section 26 (1) (

c) of the Act there isno open season for any wildlife species in that area. [10] As can be seen from the foregoing, at the heart of this case is whether or not the Chilako Station Road #311 is a “highway” asthat word is used in

Section 12 of the Closed Area Regulation. If it is such a “highway,” then it is conceded by Mr. McDonald that whenhe harvested the mule deer, he was in the no shooting area of Chilako Station Road #311. Position of the Parties [11] The Crown argues that this is a case of statutory

interpretation and casts the issue before me as follows: When is a gravel road without markings a two lane highway within the meaning of the no shooting regulations? [12] The Crown relies upon the Supreme Court of Canada’s decision in Re: Rizzo and Rizzo Shoes Ltd., (SCC),[1998] 1 S.C.R. 27 and in particular paragraph 21 of the Rizzo decision where Justice Iacobucci cites, with approval, Elmer Driedgerfrom his book Construction of Statutes at page 87: Today there is only one principle or approach; namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [13] The Crown submits that the Wildlife Act and the Regulations passed pursuant to the Act, are designed to regulate hunting in theProvince and to balance public safety, protection of the resource (wildlife), and the harvesting of wildlife. The Crown further submitsthat the word “highway,” as it is used in

section 12 of the Closed Area Regulation, cannot be limited to asphalt covered roadways.

Reading the Act as a whole, and taking into account the intention of the Legislature to permit hunting wildlife in a safe manner, theCrown submits that the vast array of dirt and gravel roads throughout the Province must be included in the definition of “highway” or“road of two lanes or more” as that phrase is used in the Regulation. [14] The Crown proffers a definition of “two lane road” as a road “where two motor vehicles could pass each other.” This definition,the Crown submits, excludes travelled roadways only wide enough to accommodate pedestrians, bicycles, or motorcycles and rightfullyso as such an expanded definition would prevent shooting from all but the most narrow trail.

Such a restriction on hunting would notfurther the intention of the Legislature to balance the interests of protecting the public from shooting from frequently and/or welltravelled road and/or roads that commonly occur in inhabited areas against the interests of hunters to hunt throughout the Province. [15] Mr. McDonald argues before me as well that this is a case of statutory

interpretation and also refers to the Rizzo decision of theSupreme Court of Canada. He argues that the Chilako Station Road #311 is not a “highway” or a “road of two lanes or more” as thatphrase is used in

section 12 of the Closed Area Regulation because it does not have two or more lanes. It has no divisions, no welldefined tracks, and no markings that could be construed to indicate that a lane or lanes are present. [16] Mr. McDonald further argues that the Chilako Station Road #311 lacks features of highways contemplated by the Wildlife Actsuch as a paved surface. [17] In terms of legislative intent, Mr.

McDonald urges that the Legislature intended to restrict hunting in populated, well travelledareas with paved roads and a midline of some sort, and to permit hunting in unpopulated, poorly travelled areas with dirt roadssurrounded by Crown land where there is no danger to the public. [18] Lastly, Mr. McDonald argues that since the offence created by

Section 32 of the Wildlife Act is a strict liability offence whereimprisonment is a possible punishment, then he must have a defence of due diligence available to him. The Crown agrees with thisassertion. [19] Mr. McDonald goes on to argue that in this case there is no defence of due diligence available to him because there is nowherehe could look to determine if Chilako Station Road #311 was a highway or a road of two lanes or more and thus inform himself as towhether or not hunting was permitted where he harvested the mule deer. [20] Mr.

McDonald did not provide me with a proposed definition of “highway” or “road of two lanes or more” that would meet theinterests of protecting the public, protecting the resource, and permitting hunters to harvest game. Discussion [21] I do not accept Mr. McDonald’s argument that the Legislature intended to capture only paved roads or roads with some

discernable midline when it decided to restrict hunting on or near roads of two lanes or more throughout the Province. Much of the access to hunting grounds throughout the Province is via unmarked dirt and gravel roads; roads that are not paved and have no midline. [ 22 ] I accept that the Legislature intended travel on those roads into and out of hunting grounds to be safe for hunters, campers, and other members of the public travelling the myriad of roadways throughout the Province.

It cannot be that hunters are free to discharge their firearms on, across, or in the road allowance of roads such as Chilako Station Road #311. To permit such a dangerous activity to take place would put the safety of hunters and the public at an unacceptable risk.

The public should be free to travel on the roadways throughout the Province, whether paved, dirt, or gravel, without fear or risk that they might be struck by a bullet because hunting on or near those roadways is permitted. [ 23 ] However, I am of the opinion that the definition of “a road of two lanes or more” proffered by the Crown requires further refinement.

To repeat, the Crown argues that a “two lane road” should be defined as those roads where two motor vehicles can pass each other. [ 24 ] I am of the view that such a definition would include roads where two vehicles are able to pass each other by pulling in their side mounted rear view mirrors and creep past each other with their right tires right on the edge of the road, or into the ditch by the side of the road.

Indeed, I can imagine roads that are clearly intended to be one lane roads but where, with enough ingenuity, two experienced off- road drivers could manage to get two trucks past each other on that road.

I do not believe driving in that fashion would, or should, convert a one lane road into a two lane road. [ 25 ] I prefer to define “highway”, or “road of two lanes or more” as follows: Any road, whether paved, gravel, or dirt, where two motor vehicles can safely pass each other travelling at a speed that is safe for the road conditions. [ 26 ] I recognize that roads that are wide enough to accommodate two motor vehicles to pass each other, are often going to be so steep, or have so many switchbacks, or be near a steep drop off or cliff, that the speed of travel on those roads must be reduced in order to travel safely given the danger or risk posed by the driving conditions.

Those roads, I believe, should be included in the definition of “highway” or “road of two lanes or more” in

Section 12 of the Closed Area Regulation such that discharging firearms across, on, or in the road allowance of those roads should be prohibited. [ 27 ] It is my intention that this definition would include practically all roads within the Province that can accommodate two motor vehicles safely passing each other. [ 28 ] I am of the view that this definition of “highway” or “road of two lanes or more” will not be difficult for hunters and motorists to interpret and put into effect.

The definition adopts language that motorists are familiar with and demands driving behaviour that motorists must employ at all times; namely, driving their vehicles at a speed that is safe for the road conditions. If a hunter comes across a road while he/she is out hunting, and if it appears to that hunter that two vehicles could safely pass each other travelling at a speed that is safe for the road conditions, then that hunter cannot discharge his/her firearm on, across, or in the road allowance of that road.

Defence of Due Diligence [ 29 ] Hunting is a highly regulated activity in the Province because shooting guns is dangerous. It is incumbent upon hunters to know the regulations and restrictions in place and imposed upon them to ensure the safety of the public throughout the hunting grounds across the Province. [ 30 ] Mr. McDonald argued before me that there was no defence of due diligence available to him because there was no place he could go to determine whether or not Chilako Station Road #311 was a “highway” or “road of two lanes or more.” With respect, I do not accept that argument.

From the photographs placed before me in evidence, there could be no doubt that Chilako Station Road #311 was wide enough to accommodate two vehicles passing each other. Further, any hunter knowing the prohibition from discharging a firearm on, across, or in the road allowance of a “road of two lanes or more” would not be left in any doubt that discharging a firearm on, across, or in the road allowance of Chilako Station Road #311 was prohibited. Indeed, if there was any doubt, the proper course of action would be to elect not to discharge the firearm. Mr.

McDonald clearly had a choice and he could not have been in any doubt that Chilako Station Road #311 was a road of two lanes or more. [ 31 ] Mr. McDonald argued before me that further confusion arises in this case because there could be instances where a two lane road might, in certain spots along the road, narrow to a one lane road and thus hunters would be left in some doubt as to whether or not the road was captured by

Section 12 of the Closed Area Regulation. [ 32 ] Another example of potential confusion was what would happen in winter when due to snowfall a two lane road would be so covered in snow that it could only accommodate one vehicle at a time. [ 33 ] These facts are not present in the case before me so I will limit my comments. I do not believe that snowfall could convert the legal status of a two lane road to a one lane road even though for a temporary period the ability for two motor vehicles to safely pass would be restricted.

I say that because to hold otherwise would simply introduce uncertainty and confusion into an activity where the public needs certainty and safety. [ 34 ] As for a road that at certain points would be a two lane road and at other points would be a one lane road, again, I am of the view that discharging a firearm on, across, or in the road allowance of that road should be prohibited. I say that because the two lane portion of the road could accommodate a higher volume of traffic and it is that traffic that the regulation seeks to keep safe from stray bullets.

Conclusion [ 35 ] In conclusion, for the reasons given, I find that Chilako Station Road #311 is a highway under

Section 12 of the Closed Area

Regulation. It follows that I find Mr. McDonald guilty as charged. ___________________________________ The Honourable Judge R.N. Hamilton Provincial Court of British Columbia