IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           By Information 26187-01 sworn September 1, 2015, David Densmore Gilbert is charged with the following regulatory offences:

[2]           These are all regulatory offences, which the Supreme Court of Canada in R. v. Sault Ste. Marie (City), 1978 CanLII 11, described as quasi-criminal in nature.  The Crown is required to prove the wrongful act beyond a reasonable doubt, after which the burden shifts to the accused to show that he took reasonable steps to achieve compliance. The accused also bears the burden of proving he had authorization where authorization is required. (See Offence Act, RSBC 1996, c 338, s. 98)

[3]           This matter came before me for trial on October 19, 20, and 21, 2016.  Mr. MacDonald appeared on behalf of the Crown and Mr. Gilbert was self-represented.

[4]           The Crown called only one witness in its case, Natural Resource Officer Herbert Roodenburg, who investigated the alleged offences on behalf of the Ministry of Forests, Lands and Natural Resources (the “Ministry").  NRO Roodenburg entered into evidence a map, two land title searches, 17 photographs and 13 aerial photographs.  These documents were marked Exhibits 1 to 17 in these proceedings.

[5]           Mr. Gilbert testified on his own behalf.  He entered into evidence a number of photographs he had taken and letters he had exchanged with the Ministry and various government officials.  These documents were marked Exhibits 18 to 32 in these proceedings.  On first blush, Mr. Gilbert’s correspondence to various government officials offends the rule against self-serving evidence.  The Crown generously consented to its admission as an aide memoire to Mr. Gilbert, who was self-represented.  I have not used correspondence Mr. Gilbert has authored and entered into evidence as corroboration of the veracity of his oral evidence.  I do accept these Exhibits as evidence that Mr. Gilbert did in fact write the letters he claims to have written in his attempts to resolve these matters.

[6]           Mr. Gilbert did not cross-examine NRO Roodenburg, but then testified about many events and conversations to which NRO Roodenburg and the Crown were entitled to respond.  The Crown declined to recall NRO Roodenburg or rebuttal evidence, although invited to do so.

[7]           David Densmore Gilbert is the registered owner of the following parcels of land situated in the Cariboo Assessment Area:

[8]           A copy of a land title search conducted by NRO Roodenburg on June 7, 2013, was entered into evidence in these proceedings as Exhibit 2.  This document shows that Mr. Gilbert’s title to Parcel Identifier: 015-295-478 was registered in his name in the Prince George Land Title Office on January 27, 1993.  Exhibit 2 further shows that from October 25, 1985 to January 27, 1993, Parcel Identifier: 015-295-478 was registered in the name of Fred Elmer Gilbert, who I understand to be Mr. Gilbert’s uncle.

[9]           Parcel Identifier: 015-295-478 has been referred to in these proceedings as District Lot 11826 or the Mount Creek site, farm or ranch.  These lands, comprising 160 acres, are situated in the vicinity of the Nazko Highway approximately 30 miles from Quesnel, B.C.

[10]        Parcel Identifiers: 015-121-399, 015-121-402, 015-113-981 and 015-113-990 represent Mr. Gilbert’s interest in District Lot 4988.  A copy of a Land Title Search conducted by Herbert Roodenburg on November 7, 2014, was entered into evidence in these proceedings as Exhibit 3.

[11]        Exhibit 3 indicates Mr. Gilbert’s titles to Parcel Identifier: 015-113-981 and Parcel Identifier: 015-113-990 were registered in the Prince George Land Title Office on August 2, 1985.  Mr. Gilbert’s titles to Parcel Identifiers: 015-121-399 and 015-121-402 were registered in the Prince George Land Title Office on November 24, 1989.

[12]        Parcel Identifiers 015-121-399, 015-121-402, 015-113-981 and 015-113-990 are the only privately owned portions of District Lot 4988.  Mr. Gilbert’s interest in those lands has been referred to in these proceedings alternatively as the privately owned portion of District Lot 4988 or the Bluestone Creek site, farm or ranch.  These lands comprise of 332 acres and are situated at the end of Gilbert #2 Road, 23 miles west of Quesnel B.C.

[13]        Mr. Gilbert also owns District Lot 9515, Cariboo District, which is referred to on Exhibit 1 as the Chevans Creek site.  The lands are at the end of Gilbert #1 Road, 18 miles west of Quesnel, B.C., off the Nazko Highway.  Mr. Gilbert refers to these lands as the Chevans Creek farm or ranch.  The Chevans Creek farm is not subject of the offences charged by Information 26187-01.

[14]        Mr. Gilbert inherited the Chevans Creek, Bluestone Creek, and Mount Creek farms from his father and uncles.  He inherited the Mount Creek farm from his Uncle Fred Gilbert.  He acquired title to the Mount Creek farm on January 27, 1993, but did not begin operating the farm until approximately 2008.  Prior to this time, Fred Gilbert and another rancher, Wayne Anderson, operated the Mount Creek farm.

[15]        Mr. Gilbert also inherited the Bluestone Creek farm from his Uncles Bill Gilbert and Fred Gilbert in 1985 and 1989 respectively.  

[16]        Fred Gilbert initially lived at Mount Creek farm.  Upon inheriting Bluestone Creek property, Fred Gilbert moved to the Bluestone Creek residence because the Mount Creek farm had no telephone service or hydro power.  At some point, Fred Gilbert decided to move back to Mount Creek farm and bequeathed the Bluestone Creek farm and its cattle to his nephew.  Mr. Gilbert did not make Bluestone Creek farm his residence for some time.  Although he cared for the cattle on Bluestone Creek farm, he rented the Bluestone Creek residence and lived with his father in his trailer on the Chevans Creek farm.  Eventually, Mr. Gilbert inherited the Chevans Creek farm from his father.

[17]        Exhibit 1 is a map prepared by NRO Roodenburg from the iMapBC, a publically available mapping system.  The map shows the geographical area west of the Quesnel and the Fraser River encompassing the Nazko Highway, the Chevans Creek, and Bluestone Creek and Mount Creek sites.

[18]        In addition to the three farms he inherited from his father and uncles, Mr. Gilbert also has a trap line he uses to harvest small fur bearing animals.  He identified the location of this trap line on Exhibit 1.

[19]        There were a number of issues raised at trial, both by the Crown and Mr. Gilbert. Some of these issues were not apparently germane to the offences charged. Nevertheless, I have addressed these issues as Mr. Gilbert is self-represented and needs to know how and why I have reached the decision I have.

[20]        The Crown provided the Court with a copy of the Water Act, 1996, c. 48 in force on January 6, 2016, and a copy of s. 60 of the Land Act, R.S.B.C., 1996, c. 245.  I have reviewed such other legislation and case authorities I considered relevant.

[21]        Mr. Gilbert is presumptively innocent.  The Crown is required to prove its case against him beyond a reasonable doubt.  If I have reasonable doubt with respect to any element of any offence with which Mr. Gilbert is charged, he is entitled to an acquittal.

[22]        As Mr. Gilbert has testified I must apply the guidelines articulated by Justice Cory in R. v. W. (D), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.  I found Mr. Gilbert to be a credible and reasonably reliable witness.  I say “reasonably reliable” because, understandably, he could not always remember the date when some historical events occurred.

[23]        Much of Mr. Gilbert’s defence of due diligence or allegations of bad faith went unchallenged and unanswered.  Still, Mr. Gilbert’s rancour at the Ministry in general and NRO Roodenburg in particular was palpable. For this reason I have exercised caution when assessing the veracity of Mr. Gilbert’s accusations of bad faith and malfeasance.

[24]        I found NRO Roodenburg’s evidence as to his own observations and activities credible and reliable.  I do not accept his evidence on aerial interpretation or causation where it conflicts with Mr. Gilbert’s evidence.  Although I have no doubt NRO Roodenburg was trying to be truthful, I found some of his conclusions as to causation speculative.

[25]        The Water Act vests ownership of all water in a stream in the government.  Water in a stream is statutorily defined as including “a natural watercourse or source of water supply, whether usually containing water or not, and a lake, river, creek, spring, ravine, swamp and gulch.”  The Water Act requires a person to have a license, permit or authorization before diverting, using, storing or conveying water in a stream or altering a stream or channel or making changes in and about a stream.  (See Sections 2, 5, 9 and 26).

[26]        The Crown alleges Mr. Gilbert is responsible for making three changes in and about Mount Creek: (a) diverting the stream channel near the west boundary of District Lot 11826; (b) diverting the stream channel near the east boundary of District Lot 11826; and (c) removing vegetation from the Mount Creek stream banks on Crown land near the northwest boundary of District Lot 11826.  These diversions and changes constitute “works” within the definition of that term under the Water Act.

[27]        The Crown entered into evidence two aerial photographs NRO Roodenburg took of the Mount Creek Farm in 2014.  (See Exhibits 4 and 5).  They shows an iconic family farm with neatly cultivated fields cross cut with meandering creeks.  The creeks are flanked by willows and the farm is surrounded by a forested Crown land.  NRO Roodenburg identified the creek flowing from the south to the north as Mount Creek and the creek running from east to west as a tributary of Mount Creek.

[28]        Exhibits 6, 7, 8, 9, 10, 14, 15 and 16, are aerial photographs of the Mount Creek farm and surrounding Crown land taken in various years.  Exhibit 10 was taken in 1997, Exhibit 9 in 2005, Exhibits 8, 14,15 and 16 in 2006, Exhibit 7 in 2010 and Exhibit 6 in 2013.  On Exhibits 14, 15, 16 NRO Roodenburg superimposed in red the metes and bounds of District Lot 11826.  On Exhibit 16, NRO Roodenburg superimposed the geographical location of the improvements shown in 22 photographs comprising Exhibit 17.  He determined the exact geographical coordinates of these sites using a Global Positioning System.

[29]        The Crown alleges Mr. Gilbert diverted Mount Creek without authorization.  The Water Act defines divert as follows:

[30]        The Crown’s allegations are based principally on NRO Roodenburg’s interpretation of aerial maps.  NRO Roodenburg says Exhibits 7 and 9 show that where Mount Creek once meandered through the western portion of District Lot 11826, it now flows in a relatively straight line.

[31]        Mr. Gilbert agrees that Mount Creek channel has changed its course over the years, but not as the result of anything he has done.  Mr. Gilbert says the logging in the Mount Creek area began in 1975 with the construction of 3700 Road.  Initially, the logging was confined to the flat lands; however, since the advent of the northern pine bark beetle infestation, the entire Mount Creek watershed has been clear cut and carved up by logging roads.  The resulting deforestation allows massive volumes of water and debris to hurl unimpeded down the mountainside causing extensive flooding.

[32]        Each spring, these floodwaters inundate the Mount Creek farm lands and erode the banks of Mount Creek itself.  A rain storm can cause the creek to rise two feet in six hours.  It remains that height for two or three days after the rains stops.  Presently, there is four feet of water in Mount Creek when it should be only four inches.  Mr. Gilbert attributes the changes to the Mount Creek’s channel to the carnage resulting from the Ministry’s policy to allow extensive logging in the Mount Creek water shed.

[33]        Exhibit 27 comprises 12 photographs corroborates Mr. Gilbert’s evidence of widespread flooding.  Exhibit 28 comprises 13 photographs Mr. Gilbert took in the summer of 2014 showing the extensive erosion to Mount Creek caused by the annual flooding.  These photographs show Mount Creek’s bank sloughing into the creek and the creek carving new channels in Mr. Gilbert’s hay fields.  Mr. Gilbert has complained to the Ministry repeatedly of the impact of deforestation on his Mount Creek farm.  (See Exhibit 18).

[34]        Mr. Gilbert says beavers also contribute to the ongoing changes to Mount Creek’s channels.  They dam portions of Mount Creek for their lodges to gain ready access to willows upon which they feed.  Mr. Gilbert is constantly pulling apart their dams by hand.

[35]        Mr. Gilbert moved onto the Chevans Creek farm with his parents when he was 18 months old.  He has spent many years in that area, more so since he retired from his career with B.C. Telephone in 1996.  In addition to caring for the three farms he inherited, Mr. Gilbert has a working trap line.  He has personally observed and experienced the incremental changes to the Crown forests and the impact of these changes on Mount Creek.  The Crown has provided no evidence which contradicts or undermines Mr. Gilbert’s explanation as to why Mount Creek has changed its course over the years.  Even absent that explanation, I am not prepared to find that Mr. Gilbert is responsible for Mount Creek changing its course on the western portion of District Lot 11826 based on the investigating officer’s interpretation of aerial maps.  NRO Roodenburg’s expertise in the interpretation of aerial photography has not been established.  The Crown has charged Mr. Gilbert with quasi-criminal offences and bears the burden of proving its allegations beyond a reasonable doubt.  The Crown cannot establish causation or liability by simply pointing out changes to a feature on a series of aerial maps taken in different years.  This would impermissibly shift the burden of proof from the Crown onto the accused.

[36]        NRO Roodenburg testified that Photographs 21 and 22 of Exhibit 17 and Exhibit 7 depict an area near the east boundary of District Lot 11826 where the stream has been diverted and the original channel infilled.  He points to the exposed soil in support of this assertion.  Mr. Gilbert agrees the shoe shape feature in Exhibit 7 may depict the site of an old meander of Mount Creek.  He also agrees that section of Mount Creek appears relatively straight, but so do a number of other sections.

[37]        The Crown postulates that someone used an excavator to divert Mount Creek to straighten it and then infilled the natural meander.  This would have been done sometime before the aerial photograph was taken in 2010.  (See Exhibit 7).  Mr. Gilbert said if this happened it wasn’t his doing.  Farmers routinely try and level their field by filling stump holes and old depressions.  If the shoe shaped feature on Exhibit 7 was an old meander, someone, not him, may have infilled the residual depression.  Mr. Gilbert says the Mount Creek fields are full of depressions.  Exhibits 2 and 3 appear to corroborate that statement.

[38]        Mr. Gilbert asserts the change in Mount Creek’s watercourse in the east portion of District Lot 11826, as in the west, was caused by the Ministry’s polices to clear cut the Mount Creek watershed with the result that in the spring, Mount Creek becomes a muddy flush of clay, silt, sand, gravel and logging debris.  This extreme annual flooding has carved and continues to carve up his meadow lands.  Tons of soil, willows and trees are being flushed down Mount Creek on the way to Baker Creek.  Mr. Gilbert has brought this horrendous damage from the spring floods to the attention of the Ministry. (See Exhibits18 and 27).

[39]        Mr. Gilbert says the beavers caused changes to Mount Creek stream channel in the east of District Lot 11826, as they have in the west.  Recently, he discovered a 300 yard dead channel of Mount Creek in his southwest meadow caused by beaver activity. There he found dead trout in its warm landlocked waters.

[40]        I find the Crown’s allegations that Mr. Gilbert diverted and infilled Mount Creek in the areas depicted in Photographs 21 and 22 of Exhibit 17 and Exhibit 7 unfounded.

[41]        The Water Act prohibits any person from making any changes in or about a stream without authorization.  Section 1 defines “changes in and about a stream" to mean:

[42]        The Crown asserts that Photograph 13 in Exhibit 17 depicts an area of Mount Creek where an excavator had been used to “scrape” the bank.  This area is located near the northwest quad bridge Mr. Gilbert had constructed over Mount Creek on Crown land.  NRO Roodenburg took Photograph 13 on May 16, 2013.  He did not further investigate this impugned area nor did he produce any close up or detailed photographs.  Mr. Gilbert denies using an excavator at the site.  Had this occurred, he says, there would be visible tracks or tire marks.  He has a point; there is no forensic evidence of this nature.  Certainly, nobody testified to having observed Mr. Gilbert operating an excavator in that location.  In fact, NRO Roodenburg saw Mr. Gilbert on Mount Creek farm on one occasion only, namely August 25, 2015, and even then, from a distance while Mr. Gilbert was operating his tractor and mower.

[43]        Mr. Gilbert attributes the devegetated area to the debris and fast moving water characteristic of the spring floods.  In my view there is a dearth of evidence that Mr. Gilbert or anyone on his behalf used an excavator at the impugned site.  Mr. Gilbert’s theory as to the causation is as reasonable and probable as the Crown’s.

[44]        Section 93(2)(i) makes it an offence to use works without authorization.  The definition of works includes “changes in and about a stream.”  Can it be said that even if Mr. Gilbert did not cause the impugned changes to Mount Creek, that he “used those changes” in contravention of s. 93(2)(i) of the Water Act?

[45]        As the Water Act does not define “use”, the court must engage the principles of statutory interpretation to ascertain its meaning.  The modern principle of statutory interpretation is that adopted by the Supreme Court of Canada in in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 (CanLII), para 26:

[46]        Section 8 of the Interpretation Act, RSBC 1996, c 238 states:

[47]        Where a term within a regulatory statue has not been defined it is open to the judge to consult a dictionary to assist in defining its meaning.  In fact, a dictionary is often the starting point: R. v. Skakun, 2014 BCCA 223 (CanLII), para. 10.  This was the Supreme Court’s approach in R. v. Steele, 2007 SCC 36 (CanLII) when considering the meaning of the word “use” in the context of a criminal proceeding.  At issue in that case was the meaning of the word “uses” under s. 85(1) of the Criminal Code, which makes it a separate offence to use a firearm while committing certain enumerated indictable offences.  Fish J., for a unanimous court noted in paragraph 28 that it is settled law that use and mere possession are not synonymous.  At paragraph 31, Fish J. states:

[48]        In my view, before a person can be found guilty of using a works, the Crown must prove that person put into action or service that works for his or her own purpose. In this case the Crown has not established that Mr. Gilbert made use of the naturally occurring changes to Mount Creek to the extent those changes constituted a “works” within the meaning of that term under the Water Act.  All I have gleaned from the evidence led at trial is that by virtue of his ownership of the Mount Creek farm, Mr. Gilbert had “passive possession” of the changes to Mount Creek caused by spring floods and beavers and that he was not particularly happy about it.  I do not accept the legislature intended to make a landowner guilty of an offence for merely possessing lands on which a stream changed its channel or appearance as the result of naturally occurring factors.  If the Crown’s point is that Mr. Gilbert infilled the stream channel to prevent Mount Creek from reverting back to its original water course after the flood waters subsided, then it has failed to prove the facts underlying those allegations.

[49]        On May 16, 2013, May 28, 2013 and June 11, 2013, NRO Roodenburg observed and photographed the following works on Crown land in the vicinity of District Lot 11826: (a) a drainage ditch, (b) a culvert; and (c) two narrow quad bridges, one in the north and one in the south; and (d) a variable height fence.

[50]         He observed these works again on August 25, 2015.  The drainage ditch is depicted in Photographs 1, 2, 6, 7, 8, 10; the culvert is depicted in Photographs 8, 9, 10, 20, and the bridges are depicted in Photographs 3, 4, 12, 14, 15; and the variable height fence is depicted in Photographs 3 and 4.  NRO Roodenburg was able to determine the precise location of these works through a GPS system.  He also located and photographed the northwest and southwest survey corner pins of District Lot 11826.  (See photographs 5 and 11, Exhibit 17).

[51]        Mr. Gilbert admits that he excavated the drainage ditch and installed the culvert on Crown lands as depicted in photographs number 1, 2 4, 6, 7, 8, 19, 20 of Exhibit 17. He did so in October 2012 in order to drain water from his meadowlands.

[52]        The ditch, which is identifiable on Exhibit 6, is constructed for some distance across the northwest portion of Mr. Gilbert’s meadow lands.  Ninety-seven percent of the ditch is on Mr. Gilbert’s titled property.  Three percent, or 85 feet, extends beyond the northwest boundaries of District Lot 11826 onto Crown land where it connects to Mount Creek via culvert.

[53]        NRO Roodenburg identified Photolocation Map marked as Exhibit 16 an aerial map taken from 2006, on which he has superimposed the boundaries of District Lot 11826 and the location from where he took the photographs comprising Exhibit 17.  This aerial map shows a feature which has been identified as the ditch Mr. Gilbert excavated on his meadowlands.  Either NRO Roodenburg’s evidence as to the date of the aerial map is incorrect, or the feature associated with Photographs 6, 7, 8 and 9, existed on or before 2006. I think it more likely Exhibit 16 was a copy of Exhibit 6, taken in 2013.

[54]        Mr. Gilbert admits he excavated the drainage ditch and installed the culvert on Crown lands, but says this was done in October 2012.  He also says when he carried out this work, Mount Creek was bone dry and no turbidity went into the creek.  He placed a filter cloth at the entrance of the creek in the ditch on wood stakes to mitigate any flushing of peat soil turbidity into Mount Creek.

[55]        Mr. Gilbert admits that he constructed the two narrow quad bridges on the Crown trespass lands that NRO Roodenburg observed and photographed on May 16, 2013, and depicted in Photographs 3, 4, 12, 14 and 15 of Exhibit 17.  Mr. Gilbert does not know when he built these bridges.  NRO Roodenburg observed these bridges intact on May 16, 2013, June 11, 2013, and August 25, 2015.  I understand it is the Crown’s position the quad bridges constituted “changes in and about a stream” and therefore fall within the definition of “works”.

[56]        Mr. Gilbert admits he built the variable height metal fence that NRO Roodenburg observed attached to the north quad bridge on May 16, 2013.  (See Photographs 3 and 4 of Exhibit 17).  Mr. Gilbert designed and erected the fence at the same time he built the north quad bridge.  The fence is a cattle guard of sorts to be raised or lowered depending on the water levels in Mount Creek.  Its purpose is to keep cattle from crossing the creek onto his hay fields.  Arguably, this cattle guard also constitutes “changes in and about a stream” and falls within the definition of “works”.

[57]        The Water Act requires Mr. Gilbert to have a permit to construct works such as a drainage ditch, culvert, quad bridges or cattle guard on Mount Creek on Crown lands. He had no such authorization.

[58]        Mr. Gilbert admits he has used and continues to use the drainage ditch, culvert, quad bridges or variable height fence on Crown lands for his own purposes.  He used the ditch and culvert to drain the water from his meadow lands; he used the quad bridges to access his trap line and repair his fences and he used the variable height fence as a cattle guard.  This usage took place sometime during the offence period, which was September 1, 2012 to August 25, 2015.  Mr. Gilbert admits he had no permit from the Ministry to use these works.

[59]        The Crown has charged Mr. Gilbert with maintaining, operating or using works without authority between September 1, 2012 and August 25, 2015, inclusive.  With respect to Count 1, as it applies to the Mount Creek Farm lands, the Crown has not proven, nor has it asserted, that Mr. Gilbert constructed, operated or maintained works during the offence period.  At trial, the Crown particularized the charge set out in Count 1 to “use works without authority.”

[60]        I find the Crown has proven beyond a reasonable doubt that during the period of September 1, 2012 and August 25, 2015, Mr. Gilbert used the drainage ditch, culvert, north and south quad bridges and variable height fence constructed on Crown lands and that he did not have authority to do so.  I do not understand the Crown to be arguing Mr. Gilbert needed a permit to construct or use the ditch on his titled lands. If I am wrong in this understanding, I find the Crown has not proven this allegation.

[61]        The Crown’s allegation Mr. Gilbert is responsible for Mount Creek changing its channel or using an excavator on its banks is unfounded.

[62]        The Crown has relied on aerial photography to support its allegation that Mr. Gilbert used unauthorized works on the Bluestone Creek farm between September 1, 2012 and August 25, 2015.  NRO Roodenburg says Exhibit 11 was taken sometime in 1997 and Exhibits 12 and 13 were taken in 2005 and 2012 respectively.  He says at some point during this 15 year period Bluestone Creek had been diverted from its original channel, which ran through the middle of the cultivated lands, to its current location at the southern edge of the cultivated fields.  Using the iMapBC system, NRO Roodenburg superimposed a solid blue line on Exhibit 12 depicting the approximate location of the original Bluestone Creek channel and dash lines depicting the location of ditches carrying the new flow of water.  NRO Roodenburg opines the “strong black line” to the south, west and north of the fields are manmade ditches and the white spots within those black lines are ditch crossings.  NRO Roodenburg admits the only ditches he personally observed were on the far right hand side of Exhibit 13.  He circled the location from where he had made these observations.  I note this location is at the far east end of the 332 acre Bluestone Creek farm.

[63]        NRO Roodenburg met Mr. Gilbert at his residence on the Bluestone Creek farm on April 24, 2013, and again on September 26, 2013.  He did not actually inspect Bluestone Creek, its works or original channel.  NRO Roodenburg’s assertion the dark line to the south and west of the fields depicted on Exhibits 12 and 13 are manmade ditches is based on his own interpretation of the aerial photography.  I note there are four dark lines in the area NRO Roodenburg circled on Exhibit 13 as representing the location from where he observed the ditches.  He did not identify which of these lines he believes to be the ditches and which, if any, was Bluestone Creek.

[64]        Mr. Gilbert says the feature NRO Roodenburg has interpreted to be the Bluestone Creek on Exhibit 13 is in fact a ditch.  He says that if Bluestone Creek was diverted by human endeavour, this was done years ago by his uncle when he owned and operated the farm.

[65]         Bill Gilbert died in 1985 - over 30 years ago.  As long as Mr. Gilbert has been on the property, Bluestone Creek was located in its present channel south and west of the fields.  I need not determine when or even if Bluestone Creek’s was diverted because Mr. Gilbert is not charged with under s. 93(2)(k) of the Water Act.  I accept Mr. Gilbert’s evidence that Bluestone Creek is located where he says it is and that it has been in that location long before the offence date.

[66]        Mr. Gilbert says that works on Bluestone Creek have been in place since he has owned the property.  He believes they were installed by his Uncle Bill Gilbert who originally owned the Bluestone Creek farm.

[67]        Mr. Gilbert has been charged with “using works without authority” contrary to s. 93(2)(i) of the Water Act.  The “works” are the ditches and culverts on and changes to Bluestone Creek.  I accept Mr. Gilbert’s evidence that even if it had been diverted years ago, the Bluestone Creek has become naturalized in its present course.  What NRO Roodenburg refers to as a manmade ditch, is Bluestone Creek’s stream channel.

[68]        Mr. Gilbert says the culverts on the Bluestone Creek have been in place since he has owned the property.  He has never had to fix or maintain them.  They are now covered in sod.  The Crown argues that even if these works were installed long ago by someone else Mr. Gilbert was still obligated to obtain a licence for their use.

[69]        The Crown cross-examined Mr. Gilbert on whether he diverted Bluestone Creek or installed or maintained the existing culverts.  Mr. Gilbert was never asked if he withdraws and uses water from the Bluestone Creek, and if so, for what purpose.  The evidence before me does not go beyond establishing Mr. Gilbert passively allowed the works on the Bluestone Creek to continue to exist as they have for years, if not decades.  I am not persuaded this passive possession of pre-existing culverts is suffice to establish use for the purposes of s. 93(2)(i) of the Water Act.

[70]        I find the Crown has not proven that Mr. Gilbert diverted Bluestone Creek, constructed works on Bluestone Creek or used works on Bluestone Creek.

[71]        At issue in these proceedings are areas of trespass onto Crown land adjoining the District Lot 11826, the titled lands to the Mount Creek farm.  The Crown’s evidence includes: (a) NRO Roodenburg’s oral evidence as to his investigations and observations; (b) 22 photographs comprising Exhibit 17; and (c) 10 aerial photographs was taken in 1997 (Exhibit 10), 2005 (Exhibit 9), 2006 (Exhibits 8, 14, 15 and 16), 2010 (Exhibit 7), 2013 (Exhibit 6) and 2014 (Exhibits 4 and 5) of the Mount Creek farm and surrounding Crown land.  The Crown has used these Exhibits to show the site and nature of the trespass of the Mount Creek farm onto Crown land.  This trespass encompasses the following encroachments and improvements:

[72]        Mr. Gilbert is charged with both using and occupying Crown land without authority.  Neither verb is defined in the Land Act.  I have already discussed the meaning of the word “use” above.  Merriam Webster Online dictionary define occupy as follows:

[73]        Section 60 of the Land Act sets out separate offences for using or occupying or possessing Crown land without authorization.  Since the legislature does not speak in vain, these three verbs must mean something different.  They are not synonymous or rhetorical. 

[74]        Mr. Gilbert did not reside on the Mount Creek farm.  In the past, Mr. Gilbert cut domesticated hay on the enclosed trespass lands, but it was Fred Gilbert who planted and cultivated this crop.  Since 2012, Mr. Gilbert harvested the domestic hay which grows on the trespass lands if permitted to do so by the Ministry.

[75]        Mr. Gilbert’s evidence that he applied for hay cutting permits for the Mount Creek farm trespass lands is corroborated by Exhibit 20, a letter dated November 4, 2015, which Mr. Gilbert received from Rick Manwaring, the Assistant Deputy Minister.  Mr. Manwaring states Mr. Gilbert’s application to purchase the Chevans Creek farm trespass was “still in process and should be completed soon.”  Mr. Manwaring goes on to say that in the event his application for a Crown Grant was unsuccessful, Mr. Gilbert would have the option of applying to the district for a long-term hay cutting licence of up to 25 years.  With respect to the Mount Creek farm, Mr. Manwaring said that as it was part of a court action, no hay-cutting tenure would be issued.

[76]        Exhibit 23 is a letter which Mr. Gilbert wrote on August 12, 2016, to Julie Pinette, the Senior Portfolio Administrator for the Ministry concerning his application to purchase the Chevans Creek trespass lands.  In his letter Mr. Gilbert objected to an invoice he received from the Ministry for occupational rent of the Crown trespass lands.  He protested he had been compliant with the Ministry’s orders not to cut or destroy the hay for the past two years.  He says he had explained this to Ms. Pinette many times and the Ministry staff knew he complied with their wishes.  Although the letter seems to be about the Chevans Creek farm, it does support Mr. Gilbert’s evidence that in recent years, the Ministry has prohibited him from haying his trespass lands without a permit.

[77]        It appears the Ministry’s management and monitoring of Mr. Gilbert’s use of the trespass lands on all his farms commenced long before the offence date.  In Exhibits 24 and 25, Mr. Gilbert asserted to Ministry officials that his efforts to purchase the trespass lands have been ongoing for six years.  At trial, Mr. Gilbert indicates his entanglement with NRO Roodenburg over the trespass lands has been ongoing for seven years.  He complained of Mr. Vanderburgh’s letter to him of October 22, 2015 threatening to “smash and destroy” his corrals, calf shelter and riding arena fence.  Mr. Gilbert testified that Mr. Vanderburgh and NRO Roodenburg ordered him to remove his gate and sign.  Although Mr. Gilbert’s evidence intermingles administrative proceedings relating to all three farms, it is apparent that in recent years, the Ministry has escalated its oversight and control of Mr. Gilbert’s presence on and use of the Crown trespass lands.

[78]        The Ministry’s intense monitoring and supervision of Mr. Gilbert’s use of the Crown trespass lands militates against his having “occupied” those lands without authority on August 25, 2015.  Although Mr. Gilbert exercised some measure of control over who could access the trespass lands by maintaining fences and locked gates, he did not have exclusive or ultimate control.  The Ministry restricted the manner in which he could use the trespass lands and charged him for their use. At any time the Ministry could have simply ordered Mr. Gilbert remove the fences or have them removed at his expense.  This appears to be what happened to improvements on the Bluestone Creek farm trespass lands.  (See Exhibits 31 and 32). There is no evidence before me of any Section 59 Land Act orders made against Mr. Gilbert with respect to the Mount Creek trespass lands.  Still, I cannot conclude this absence of evidence is evidence of absence.  If the Ministry did tolerate the fences on the Mount Creek trespass lands, it certainly did not tolerate Mr. Gilbert’s free use of the Crown lands enclosed by those fences.  Accordingly, I do not find that on August 25, 2015, Mr. Gilbert occupied Mount Creek trespass lands without authority.  

[79]        On May 28, 2013, NRO Roodenburg had observed and photographed a fence on the Crown trespass lands associated with the Mount Creek Farm.  (See Photographs 18 and 19, Exhibit 17).  Mr. Gilbert agrees that the broken black line which NRO Roodenburg superimposed on Exhibit 15 accurately shows the location and extent of fencing on the Crown trespass lands.  NRO Roodenburg digitally measured this fencing to be 2,327 meters long, isolating 19.57 hectares of Crown land.  Mr. Gilbert accepts the accuracies of these measurements and calculations.

[80]        Although he denies constructing the fencing, Mr. Gilbert admits he maintained the fences with its locked gates which enclosed the trespass lands that impeded public access.

[81]        Mr. Gilbert also admits to having constructed and used water works on the Mount Creek trespass lands in the nature of a ditch, culvert, and two bridges, one with an attached cattle guard.

[82]        There is no doubt that Mr. Gilbert used the trespass lands from time to time. Although these works and improvements were constructed outside the offence period, they were available for his use on the offence date, namely August 25, 2015.  NRO Roodenburg observed the improvements on the Mount Creek trespass lands, intact, on August 25, 2015.  There is, however, no evidence Mr. Gilbert actively used the bridges, culvert, ditch and cattle guard on August 25, 2015.  The fact these improvements were available to be used is not the same as their being actively used on the offence date.  NRO Roodenburg said he saw Mr. Gilbert on the Mount Creek farm on August 25, 2015, from a distance, in his tractor and mower.  Obviously, he was not using the improvements at that time.

[83]        There is no evidence of any water being drained from Mr. Gilbert’s meadow on August 25, 2015, to engage the use of the ditch and culvert.  I understood from Mr. Gilbert’s evidence the excess meadow water was present in spring time.  I note in NRO Roodenburg’s photographs marked Exhibit 17 there is very little water in the ditch on May 16 and none in the culvert.  I would be surprised if there was any water in the ditch and culvert by late August.

[84]        In the absence of evidence of active utilization, it cannot be said that on August 25, 2015, Mr. Gilbert “used” Crown trespass land simply because those improvements existed on that date.  

[85]        The Crown’s only viable argument that Mr. Gilbert used Crown land on August 25, 2015, arises from the fact that on that day, portions of his fence remained functional on the Mount Creek Crown trespass lands.  Mr. Gilbert admits he used this fence on, before and after the offence date.  It was the only intact fence protecting his property; it kept out unwanted cattle, predators and humans.  Mr. Gilbert admits he had no Ministerial authorization to “use” this fence on Crown land on the offence date.

[86]        I do not find that Mr. Gilbert occupied the Mount Creek trespass lands on the offence date, August 25, 2015.  I do find Mr. Gilbert’s ongoing use of the fence on Crown land constituted a “use” for the purposes of Count 2.  Accordingly, the Crown has proven beyond a reasonable doubt that Mr. Gilbert used Crown land on August 25, 2015, for his fence to protect his Mount Creek farm from animals and unwanted guests.

[87]        I have found the Crown has proven its case beyond a reasonable doubt that Mr. Gilbert has committed the following offences:

[88]        This is not the end of the inquiry. As these are regulatory strict liability offences, Mr. Gilbert is entitled to advance a defence of due diligence.  In order to avoid penal liability, Mr. Gilbert must satisfy the court on a balance of probabilities: (a) he believed in a mistaken set of facts which, if true, would render the act or omission innocent; or (b) he took all reasonable steps to avoid the particular event.

[89]        Mr. Gilbert admits that he used the two quad bridges NRO Roodenburg observed and photographed on May 16, 2013.  He knew these bridges were on Crown land, because in 1976 he attempted to purchase those lands from the Crown as part of a larger 320 acre parcel.  Mr. Gilbert testified he built the bridges to replace the rotten bridges his Uncle Fred Gilbert constructed many years earlier.  He assumed that if a permit was required for these bridges, his uncle would have obtained one and that he was entitled to replace the bridges.  In fact, he went into the Ministry’s office at Williams Lake, B.C. and spoke with either Josh Pressy or Lee Naith.  He told them he had two rotten bridges and asked what he should do about them.  They told him to take them out; they also told him be careful.  Mr. Gilbert has no recollection of their saying the bridges were not permitted or that he required a permit to replace them.  Mr. Gilbert described the attention and care he took to replace the bridges.  The Crown acknowledges the bridges are well built.

[90]        At some point, NRO Roodenburg told Mr. Gilbert he required a permit for the bridges.  It is not clear when this occurred. I infer from Exhibit 17, it would have been sometime after NRO Roodenburg discovered the bridges during his inspection in May and June 2013.  Mr. Gilbert said he went into the Ministry to apply for a permit on three occasions, including last year.  On each of those three occasions he was told he could not apply for a permit because he was under investigation.  Recently, this has changed.  This year Mr. Gilbert has been allowed to apply for a permit for the bridges, which he has done.  He paid a $250 non-refundable deposit and submitted an engineered drawing in support of his application for permits for the two bridges.  His application is still outstanding.

[91]        Mr. Gilbert’s defence is a melange of mistake of law, officially induced error and due diligence.  I am not convinced it is sufficient to avoid liability if he was charged with constructing the quad bridges and cattle guard; however, he is charged with using these works.  I accept Mr. Gilbert did exercise due diligence with respect to his use of the quad bridges with its attached cattle guard.

[92]        Mr. Gilbert admits he constructed this ditch and culvert on the Mount Creek Crown trespass lands.  He said it did not occur to him he would require a permit for this small end section of a ditch he excavated on his titled lands.  He says the works are not causing any harm.  In R. v. Desautels, 2015 BCSC 463 (CanLII),  Mr. Justice G.P. Weatherill, adopted a correct the following submission of the Crown: