R v Brittany, 2023 ABCJ 215

In the Alberta Court of Justice Citation: R v Brittany, 2023 ABCJ 215 Date: 20230927 Docket: 230053845P1 Registry: Lethbridge Between: His Majesty the King - and - Brett Fredrick Emmett Brittany Judgment of the Honourable Justice P.G. Pharo Introduction [ 1 ] Mr. Brittany is charged with dangerous and unsafe hunting, contrary to s27(1) of the Wildlife Act , RSA 2000, W-10. This incident occurred on November 13, 2022, in the Porcupine Hills, west of Claresholm, Alberta. Two hunting parties were hunting in the same valley. One hunting party consisted of the Accused, Mr. Brittany, and his girlfriend, Ms. Weiler.

The other hunting party consisted of Mr. Langille and his friend, Mr. Osmond. Each of the male hunters had a high-powered hunting rifle, but the evidence was that Ms. Weiler did not have a rifle, nor was she hunting. The evidence was that she was there accompanying her boyfriend, Mr. Brittany. [ 2 ] In the afternoon of that day, both parties saw a buck, and decided to pursue it. They were unaware of the location of the other hunting party at that time. Mr. Brittany shot at the buck first and wounded it in the hindquarters. Mr. Brittany began to look for the buck. Mr. Langille and Mr.

Osmond heard this shot, but did not see the other hunters, or the buck. They decided to continue pursuing the buck. Shortly after that, Mr. Langille shot a grouse. [ 3 ] Mr. Brittany heard that shot, looked around, but did not see anyone. Right around that time, Mr. Brittany saw the buck again, and saw it had been wounded. He fired a second shot at the wounded buck but missed. It is this shot that is alleged to have struck a tree close to Mr. Langille. In fact, the Crown alleges this bullet hit the exact same tree where Mr. Langille had just shot the grouse.

This is the shot which the Crown alleges consists of dangerous or unsafe hunting. [ 4 ] The Defence denies that it was Mr. Brittany’s bullet that hit the tree in question. The Defence also raises the defence of due diligence, saying that Mr. Brittany took reasonable care before he fired his second shot.

Evidence of Mr. Brittany and Ms. Weiler [ 5 ] The material and relevant evidence of Mr. Brittany and Ms. Weiler was as follows: 1. Mr. Brittany testified that he was from Calgary and was 26 years old. He said that he had been hunting since he was 5 years old. 2. Mr. Brittany said he was very familiar with this area, in that he had hunted there every weekend in rifle season, and two or three times in bear season the year before. He had also hunted there during archery season almost every weekend up until this date. 3. This incident took place on the eastern slope of a valley.

The terrain of the eastern slope consists of a mixture of some open areas, as well as some wooded areas. At the time there was a substantial amount of snow on the ground. 4. Mr. Brittany said that on that day he and Ms. Weiler had been hunting since about 8:00 a.m. At the end of the day, they started walking north up the valley towards their truck. They decided to walk through the woods part way up the hill. 5. On the way, as they came into an open area, Mr. Brittany spotted two deer. Using his binoculars, Mr. Brittany ascertained that one was a buck. He decided to take a shot at the buck.

The evidence was, and I accept, that when he took this first shot, he and Ms. Weiler were approximately halfway up the side of the hill on the eastern side of the valley. 6. Mr. Brittany shot at the buck from around 150 to 200 yards. He said the shot was in a northern direction. After he took the first shot at the buck Mr. Brittany testified that he thought he hit it but was not completely sure. They then proceeded to walk towards where they thought the deer was, to look for it. 7. After about seven minutes of looking for the deer, Mr.

Brittany said that he heard a shot, which seemed to him to come from the bottom of the valley. He said he looked in that direction but did not see another hunter. 8. About 30 seconds later, Mr. Brittany said that he saw the buck, which had been shot in the hindquarters. It was limping on its front legs. Mr. Brittany decided to put the deer out of its misery with another shot. 9. Mr. Brittany had to rearrange where he was, to be sure his shot did not go over the hill if he missed.

He said his backdrop behind the buck was a sparse batch of trees, that backed onto a hill, where the bullet would have gone if he missed. He shot at the buck for the second time but missed. He then immediately reloaded his gun, lined up another shot and fired again. This time he hit the buck and it dropped. 10. At that point, Mr. Brittany said he heard some yelling from the valley bottom. He said he looked down to the bottom of the valley with his binoculars and saw someone down there. 11. Mr. Brittany put down his gun and pack and went down the hill to the valley floor to talk to the men there, who were Mr.

Langille and Mr. Osmond. 12. At that point, Mr. Brittany thought the people yelling might have also shot the buck, being the shot he heard previously. However, when he got to the valley floor Mr. Langille told Mr. Brittany that Mr. Brittany’s second shot had almost hit him. The Evidence of Mr. Langille and Mr. Osmond [ 6 ] The material and relevant evidence of Mr. Langille and Mr. Osmond was as follows: 1. Mr. Langille testified that he and his friend Mr. Osmond had been hunting in this area since around 8:00 a.m., and the incident happened around 3:00 – 3:45 p.m. 2. Mr.

Langille said he was wearing a bright red jacket and a hunter orange toque. 3. He said at around 2:45 p.m. they decided to walk back out to their truck, when they saw a white tail buck higher up on a hill. They decided to make a move on the buck. Mr. Osmond proceeded to move to the left on one side of the hill, and Mr. Langille proceeded to the right. 4. Mr. Langille and Mr. Osmond had walkie-talkies with them. 5. Mr. Langille testified that they had seen two other hunters earlier in the day, along the top of the ridge. 6. Mr. Langille said that he heard a shot while he was walking up the hill, which was Mr.

Brittany’s first shot at the buck. 7. Mr. Langille testified that he then saw a grouse, which landed in a tree. Mr. Langille testified that he radioed to Mr. Osmond and asked if he should shoot the grouse. He said that Mr. Osmond radioed back and said go ahead and shoot the grouse, because the buck was probably gone. 8. Mr. Langille stated that he then got within 50 feet of the grouse and shot the head off the grouse. He said the grouse fell out of the tree. It hit a tree branch four feet off the ground. 9. Mr. Langille testified that he went forward to retrieve the grouse.

He said that when he was about 15 feet away he saw a bullet rip though the tree branch that the grouse had struck when it fell, and the bullet thumped into the side of the ground. Mr. Langille said that he then heard a shot.

10. Mr. Langille testified that he thought the bullet went from his right to his left. 11. Mr. Langille said that he screamed a warning, grabbed his grouse and started to run down the hill. 12. Mr. Langille testified that he then radioed to Mr. Osmond and told him that he thought he got shot at, and that the bullet had landedin proximity to him. He testified that he was quite scared. 13. Mr. Langille testified that he heard another shot after that. 14. He testified that he met his buddy Mr. Osmond at the bottom of the hill and that Mr. Brittany then came down the hill to talk tothem. 15. Mr.

Langille testified that later in the day they met up with Mr. Brittany and Ms. Weiler again, and saw the buck, which had twogunshot wounds, one in the hindquarters and one in the chest area. 16. Mr. Osmond testified that although he and Mr. Langille had hunted separately most of the day, at around 2:30 p.m. they met up atthe south end of the valley. 17. Mr. Osmond confirmed that they then saw a buck part way up the hill on the east side of the valley, and decided to pursue it, butwent in different directions. He said that even after they heard the first shot, they still proceeded to hunt for it. 18. Mr.

Osmond testified that after he heard the third shot, he got a radio message from Mr. Langille saying he had been shot at. Mr.Osmond said he then heard another shot. 19. After this fourth shot, Mr. Osmond said that he saw two hunters up above him at the top of the hill. 20. Mr. Osmond testified that at that point he was scared, and thought they were being shot at. What is the Legal Test to be Applied in a Dangerous or UnsafeHunting Case? [7] This allegation is a regulatory offence, pursuant to the Wildlife Act. The Supreme Court of Canada in R v Sault Ste. Marie(City), (SCC), [1978] 2 SCR 1299 (Sault Ste.

Marie) set out three categories of regulatory offences: 1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be provedby the prosecution either as an inference from the nature of the act committed, or by additional evidence. 2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act primafacie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care.

This involvesconsideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonablybelieved in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid theparticular event. These offences may properly be called offences of strict liability. 3.

Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault. [8] The parties in this case agreed that this alleged offence falls into the second category, being what is called an offence ofstrict liability. That means in this case the onus is on the Crown to prove beyond a reasonable doubt that Mr. Brittany did the prohibitedact, being an unsafe and dangerous shot. If the Crown does prove beyond a reasonable doubt that Mr. Brittany did the prohibited act,then the burden shifts to Mr.

Brittany to prove, on a balance of probabilities that he acted with all reasonable care. [9] As noted in the Sault Ste. Marie case, the Crown need not prove that mens rea, or intention, existed, but it must prove the actof shooting near Mr. Langille beyond a reasonable doubt. What is a Reasonable Doubt? [10] For a conviction to be entered, this Court must be satisfied of the Accused’s guilt beyond a reasonable doubt. The Accusedenters these proceedings presumed to be innocent.

That presumption of innocence remains throughout the case until such time as theCrown has on the evidence put before the Court satisfied this Court beyond a reasonable doubt that the Accused is guilty. The burden ofproof never shifts to the Accused. Reasonable doubt does not mean proof to an absolute certainty but is closer to absolute certainty than abalance of probabilities. In other words, the Crown must prove its case to more than a probability, but need not go as far as absolutecertainty. The reasonable doubt standard is situated between these two standards: R v Starr, 2000 SCC 40.

A reasonable doubt is not animaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It islogically derived from the evidence or absence of evidence. Even if the Court believes the Accused is probably guilty or likely guilty,that is not sufficient. Analysis on Whether the Crown has Proven Beyond aReasonable Doubt that there was a Dangerous or Unsafe Shot

by Mr. Brittany [11] After considering all the evidence, I find the following difficulties with the evidence of the Crown on this point: 1. In his examination in chief, Mr. Langille stated “... I saw a bullet rip through the tree branch that my grouse had struck when it felland thump into the side of the ground. And then I heard a shot”. However in cross-examination, Mr. Langille said he did not see a bullet.He said he saw a motion in the tree, which was in line with a thumping into the side of the earth.

There was no expert evidence on thispoint, but it is not clear to me that it is possible to see the bullet from a high-powered rifle. It is also not clear that there would be adistinctive time lag between the time when the bullet hit and when he heard the sound of the shot, as Mr. Langille testified. 2. Mr. Langille testified that the bullet from Mr. Brittany’s rifle hit the exact same spot on the exact same branch on the exact sametree that the dead grouse had just hit. The context here is that this took place in a forested area full of trees, in a wilderness setting. EvenMr.

Langille testified that he thought it was bizarre. It seems to me that it is very unlikely indeed. 3. Mr. Langille testified in cross-examination that he thought the shot in question came from east to west. It was the evidence of Mr.Brittany that he shot in a southeast direction. Ms. Weiler testified that she saw Mr. Brittany shoot in a north to south direction. 4. No wildlife enforcement officer testified, saying that they had attended the site of the incident.

Therefore there was no actual bulletfound, or photographs of where the alleged bullet hit the tree branch, or ground area. [12] The Defence argues that Mr. Langille admitted that he did not actually see a bullet, but relied of the motion of the tree branch,and the sound of a thump into the ground. The Defence states that there are other possible causes of the motion of the tree branch andthumping sound, such as falling or melting snow, or another grouse. It is also argued by the Defence that the Crown cannot produce abullet from the site. The Defence argues that Mr.

Langille knew there were other hunters in the area because he had seen them, andbecause they heard the shot but had decided to continue hunting the buck anyway, so he was on edge. The Defence argues that becausethey were on edge, when the tree branch moved, and he heard another shot, Mr. Langille concluded it must have been caused by a bullet. [13] I also consider the Supreme Court of Canada case of R v Villaroman, 2016 SCC 33 , [2016] SCJ No 33 (Villaroman),which deals with circumstantial evidence.

The Crown argues that there was a tree branch moving, a sound of a thump into the ground,and the sound of a gunshot, so it must have been a bullet that hit that branch. [14] The Villaroman case states that the issue with respect to circumstantial evidence is the range of reasonable inferences that canbe drawn from it. Villaroman holds that if there are reasonable inferences other than guilt, the Crown's evidence does not meet the proofbeyond the reasonable doubt standard. A certain gap in the evidence may result in inferences other than guilt.

But those inferences mustbe reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.When assessing circumstantial evidence, the trier of fact should consider other plausible theories and other reasonable possibilities whichare inconsistent with guilt. The Crown thus may need to negative these reasonable possibilities, but certainly does not need to disproveevery possible conjecture which might be consistent with innocence.

Other plausible theories or other reasonable possibilities must bebased on logic and experience applied to the evidence or the absence of evidence, not on speculation. [15] I am mindful that the Villaroman case arises from a criminal law case, but it seems to me the principles with respect to theapplication of circumstantial evidence to reasonable doubt should apply in this case. [16] I find there are other plausible and reasonable explanations for the moving branch and sound of the thump into the ground.

Itcould well have been falling snow, or the release of the branch which had already been struck by a dead grouse. It could plausibly havebeen another grouse or animal that made it move or made the thumping sound. I am also concerned about the inconsistency of Mr.Langille’s evidence, in which he first claims to have seen the bullet, which in my view is unlikely, then in cross-examination admits hedid not see it, but was relying on the motion of the branch, and the sound of the thump and the gunshot. I take into account the context, inthat Mr. Langille and Mr.

Osmond knew that there were other hunters around, and had just heard a gunshot, and they admitted theybecame scared. I also take into account that it would be very unlikely for a bullet to hit the same branch on the same tree that the grousehad hit a very short time before. [17] For all these reasons, I find that the Crown has not proven beyond a reasonable doubt that Mr. Brittany fired a bullet from hisrifle that hit the branch of the tree near Mr. Langille as alleged. Did Mr.

Brittany Use Reasonable Care when he Fired theSecond Shot at the Wounded Buck? [18] If I am wrong, and the Crown has proven beyond a reasonable doubt that Mr. Brittany dangerously and unsafely shot a bulletin close vicinity to Mr. Langille, as alleged, then Mr. Brittany can still raise the defence that he took reasonable care in the circumstancesof the case. [19] The evidence was clear that Mr. Brittany and Ms. Weiler were hunting higher up the hill forming the eastern slope of thevalley than Mr. Langille and Mr. Osmond. The evidence was also clear that Mr. Brittany and Ms.

Weiler were making their way northalong the hillside when they first saw the buck. Mr. Brittany took a shot at the buck from about 150 to 200 yards. He testified that hethought he hit the buck with that shot but was not sure. He and Ms. Weiler proceeded to walk towards where the deer had been to lookfor it. At first they did not see any sign of it. They then said they heard a shot from a high-powered rifle, which was Mr. Langilleshooting the grouse. Mr. Brittany said he thought this shot came from the south, deep below them in the valley. Mr. Brittany testifiedthat he and Ms.

Weiler looked down into the valley to see if they could locate whoever had fired that shot. He testified that they lookedfor about 30 seconds but did not see anyone.

[20] Mr. Brittany testified that at that point they then saw the buck, which he said had been struck in the hindquarters, and whichwas limping on its two front legs. He said that the buck was about 50 yards away and was above him on the hill side. The wounded buckwas in an opening in the area that they had just walked through. The buck was at a higher elevation on the hill and was clearly visible inan open field. Mr. Brittany decided to shoot again, to finish off the wounded buck.

However, when he took aim he realized that from thatvantage point the bullet might have gone over the hill if he missed, which would have been unsafe. Mr. Brittany testified that for thatreason he rearranged his shot. He said that there was a sparse batch of trees that backed into a hill behind the deer, so if he missed thebullet would have gone into the side of the hill. Ms. Weiler testified that she looked past where the wounded deer was in the open fieldwhen Mr. Brittany took the second and third shots but she said she never saw anyone or anything. Mr.

Brittany said that he then took thesecond shot at the buck, and the shot was in a southeast direction. This is the shot that is alleged to have passed near Mr. Langille. Mr.Brittany said that shot missed the buck. Mr. Brittany said he quickly reloaded, and within 5 to 10 seconds shot again from the sameplace, and this time hit the deer. Mr. Brittany said that after this last shot the buck fell down, and ultimately expired. Mr. Brittany andMs. Weiler testified that it was only after this last shot did they hear yelling. At that point, Mr.

Brittany testified that he used hisbinoculars, and noticed a person waving and yelling in the valley below. He put down his gun and pack and went down to talk to theperson to investigate. [21] The Crown argues that the evidence was that Mr. Langille and Mr. Osmond were scared, thinking that they were being shot atby someone, shows that there is a subjective element of endangerment. The Crown also argues that Mr.

Brittany heard another shotshortly after his first shot at the deer, and that the fact that he only spent around 30 seconds scanning the valley to see where the otherhunters were was not sufficient to make sure he was not endangering anyone else before he shot again at the wounded buck. The Crownargues this does not meet a reasonable standard of care. The Crown argues that Mr. Brittany should have used his binoculars to look forother hunters, both in the valley below after he heard the other shot, and to check behind the buck before he took his second and thirdshots.

The Crown further argues that by introducing the photographs which are Exhibit 1 and Exhibit 2, the Defence has run afoul of therule in Browne v Dunn, in that these photographs were not put to the Crown witnesses in cross-examination when they were on thewitness stand. [22] I will now consider the Crown arguments. As noted the Crown argues that both Mr. Osmond and Mr. Langille were scaredand thought they were being shot at, and that there is a subjective element of endangerment.

However, in the case of Lévis (City) vTétreault, 2006 SCC 12 , [2006] 1 SCR 420 the Supreme Court stated at para 15: Under the approach adopted by the Court, the accused in fact has both the opportunity to prove due diligence and the burden of doing so.An objective standard is applied under which the conduct of the accused is assessed against that of a reasonable person in similarcircumstances. [23] With respect, it appears from this case that whether Mr. Brittany met a reasonable standard of care is to be based on anobjective or reasonable person test, and not whether Mr. Osmond and Mr.

Langille were scared in the situation, or thought they werebeing shot at. [24] It was the second shot by Mr. Brittany at the wounded buck that is in question here. Mr. Brittany stated that he had heard Mr.Langille’s shot, and it seemed to him that the shot came from below them in the valley. They looked in that direction but did not seeanyone. Mr. Brittany then saw the wounded buck, which was only 50 yards away. The buck was at a higher elevation on the hill thanthey were. Mr. Brittany believed, based on the direction of the sound of Mr.

Langille’s shot, that the other hunters were at a lowerelevation on the hill. In fact, based on the evidence, the other hunters were indeed below them. Mr. Brittany said he could see behind thewounded buck, which was higher up the hill than him, and arranged so he shot into the hill behind the buck. That hill had a sparse treecover, but both Mr. Brittany and Ms. Weiler said they could see through those trees to the hill behind it, without needing binoculars.Furthermore, Mr. Brittany and Ms. Weiler testified that they had just walked through the area where the wounded buck was and did notsee anyone.

They testified that the wounded buck was in an opening and was clearly visible to them. [25] Based on all this evidence, I find that Mr. Brittany has met the burden of proof on him, on a balance of probabilities, to showthat he acted reasonably when he fired the second shot at the wounded buck. [26] With respect to the Crown’s argument that the rule in Browne v Dunn required the Defence to put the photographs in Exhibit 1and 2 to the Crown witnesses, I agree but find not much turned on that evidence, and do not put much weight on it in any event.

Conclusion [27] This case involves a situation where two hunting parties were hunting on the same side of a hill in the Porcupine Hills. Oneparty consisted of the accused, Mr. Brittany and his girlfriend Ms. Weiler. The other party consisted of Mr. Langille and his friend Mr.Osmond. It appears that each of the hunting parties was not aware of the location of the other party. It was towards the end of the day,and the evidence was that both parties decided to head back to their respective vehicles. The evidence was that Mr. Brittany and Ms.Weiler were farther up the hill, and Mr. Langille and Mr.

Osmond were closer to the valley floor. At one point, both hunting partiesspotted a buck, and decided to pursue it. It is not clear whether they were both pursuing the same buck or not. Mr. Brittany fired a shot atthe buck, and thought he hit it. He and Ms. Weiler went to look for the buck. Mr. Langille and Mr. Osmond heard Mr. Brittany’s shot butdecided to continue to pursue the buck anyway. However, Mr. Langille then saw a grouse in a tree. He decided to shoot the grouse. Thegrouse fell out of the tree, hit a branch of the tree on the way down, then hit the ground. Mr. Brittany heard Mr.

Langille’s shot, andthought it came from below him on the hill. He and Ms. Weiler looked for the source of this shot but did not see anyone. He then saw thewounded buck, which was farther up the hill from him. He lined up his shot at the wounded buck. He shot in a southeast direction, andthe arranged his shot so that if he missed, the bullet would go into the side of the hill. He shot at the wounded buck and missed it. Thiswas his second shot. At that same time, as Mr.

Langille was going forward to retrieve the grouse he had just shot, and he saw the branchthat the grouse had just hit as it fell to the ground move, and heard a thump into the ground, and heard the sound of Mr. Brittany’ssecond shot at the buck. Mr. Langille testified that he thought it was a bullet that made the branch move, which bullet then went into theground. Mr. Langille stated that this bullet travelled in an east to west direction. He called Mr. Osmond on his walkie-talkie and told himhe had almost been hit by a rifle shot. At that point, both Mr. Langille and Mr.

Osmond became scared, thinking that they were being

shot at by someone. In the meantime, within 10 or 15 seconds, Mr. Brittany took another shot, his third shot at the wounded buck from the same spot, which shot hit it in the chest area, causing it to drop and expire. [ 28 ] I acknowledge that during this incident Mr. Langille and Mr. Osmond were genuinely scared, and thought they were in danger. [ 29 ] The burden is on the Crown to prove, beyond a reasonable doubt that Mr. Brittany’s second shot passed near Mr. Langille, hitting the same branch of the same tree that Mr. Langille’s grouse had just hit.

However, even if this court finds that is probably what happened, it is not sufficient. As noted already, reasonable doubt does not mean proof to an absolute certainty, but it is closer to absolute certainty than a balance of probabilities. For all the reasons set out above, I find that the Crown has not proven its case beyond a reasonable doubt. [ 30 ] If I am wrong about that, I would find that in the alternative, Mr. Brittany met the burden of proving on a balance of probabilities that he met the proper standard of care in firing the second shot at the wounded buck. [ 31 ] The charge against Mr.

Brittany of hunting in an unsafe and dangerous manner contrary to s27(1) of the Wildlife Act is therefore dismissed. Heard on the 28 th day of June, 2023. Dated at the Town of Fort Macleod, Alberta this 27 th day of September, 2023. P.G. Pharo A Justice of the Alberta Court of Justice Appearances: N. Gordon-Decicieo for the Crown L. Aman for the Accused