IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         The accused, Mr. Becerra Gonzalez along with two friends were looking for elk to hunt near Invermere, BC on September 28, 2021. Approximately 22 km up a forest service road, early in the morning at the break of dawn, they spotted a herd of elk.

[2]         The accused and one of his friends exited their truck with a rifle and a spotting scope to observe the herd and see if there were any elk eligible to hunt. Hunting season was open at this time for hunters to harvest elk that displayed six or more points or “tines” on their antler.

[3]         Although the hunters were on public land when they observed the elk, the herd was on private land. The accused fired two shots from his rifle. The owner of the land, Mr. Ready, heard the shots fired from his nearby residence and drove to the hunting party. He observed the accused and his friend walking back to their truck with their rifles and the scope. He asked them what they were doing and they replied that they were merely looking for elk to hunt.

[4]         They initially denied firing any shots, but Mr. Becerra Gonzalez admitted to firing two shots over the herd to move them after Mr. Ready said that he heard two shots fired. Mr. Ready took photographs of the hunters and their truck. The hunters carried on down the road in their truck and Mr. Ready returned to his residence.

[5]         At his residence Mr. Ready observed through a telescope what appeared to be an injured elk. Mr. Ready contacted a conservation officer about the incident. A conservation officer attended and investigated the matter. He spoke with the hunting party including the accused and seized their rifles and hunting licenses.

[6]         The conservation officer also attended to where the wounded elk was lying. The elk had less than six points on its antlers. It appeared that the elk had been shot and mortally wounded and the conservation officer had to euthanize it. A necropsy of the elk, conducted in the field, revealed that the elk had been shot with a 30 calibre bullet. The accused possessed a 30 calibre rifle.

[7]         Mr. Becerra Gonzalez is charged with committing three offences under the Wildlife Act, R.S.B.C. 1996 (WLA). Namely:

[8]         There were other charges against the accused and co-accused that were dealt with before or during the trial that do not require comment in this decision.

[9]         There are several issues in this matter:

[10]      Mr. Ready owns 2700 acres of land along the Horsethief Forest Service Road (FSR). He leases grazing rights for 70 cattle on his property. His property begins at the 18 km marker on the FSR and ends at the 27 km marker. There are signs posted along the FSR indicating that this is private property. There are also “private property” and “no trespassing” signs located along the FSR. He has a cabin on this property that is approximately 300 m from the FSR at the 22 km marker.

[11]      One large green sign located at the beginning of Mr. Ready’s property (as seen in Exhibits 4 & 9) states: “Private Property both sides of Horsethief Creek Forest Service Road from 18 km to 27 km marker” and “Trespassers will be prosecuted”. It turned out in the evidence that this was not quite accurate as there are a few hundred meters of the FSR at approximately the 22 km marker that is in fact public land (as seen in Exhibit # 7). This small area will be of interest in this case.

[12]      On the day in question at approximately 8 o'clock in the morning, while Mr. Ready was having coffee in his cabin, he heard a gunshot. He went to the upper deck of his cabin to look and heard a second shot. He determined that the shots were nearby and he suspected hunters were on his property.

[13]      He drove to the scene and arrived to find a truck with one person in it and two hunters in a field. The field is a large grazing area and he could see both cattle and elk in the field. He observed two hunters walking towards him from the field. The hunters had a spotting scope and rifles, both hunters were wearing camouflage gear.

[14]      Mr. Ready asked the hunters if they had spotted a six point elk. The hunters said that they were trying to figure that out. Mr. Ready asked what they were shooting at, they said that they did not take any shots. After Mr. Ready explained that he heard two shots, they then said they took shots to move the herd.

[15]      Mr. Ready also asked them if they had seen the “private property” sign and they said “yes” but since they did not see a fence they thought they were past the private property. The person in the truck never left the truck and Mr. Ready never spoke with him.

[16]      Mr. Ready returned to his cabin and phoned a local conservation officer, Sgt. Kruger. The hunting party drove further up the FSR.

[17]      Mr. Ready took an ATV into the grazing area where the elk herd had been and saw a male elk seated down. When he got close to the elk it stood up and hobbled away, injured. He saw that there was fresh blood where the elk had been lying.

[18]      Mr. Ready came across a person who was doing weed control. That person told Mr. Ready that a conservation officer (CO) had stopped a vehicle with three people in it a few kilometres down the FSR. Mr. Ready went to meet the CO where the three hunters had been stopped. Mr. Ready met CO Hall who was dealing with the three hunters. Mr. Ready identified the three as the same people he was dealing with earlier.

[19]      After CO Hall was finished with the hunters he met Mr. Ready at his cabin. They both looked through a spotting scope from Mr. Ready's cabin and observed the injured elk. The elk appeared to be coughing up blood. He estimated that they were approximately 700 meters away from the elk and that the shooter would have been about 350 meters from the elk where it was found.

[20]      CO Hall testified that an elk is a prey animal and does not like to be out in the open for long, they often seek cover in the trees. It is difficult for a person to approach an elk as it will move away. Elk are also herd animals and do not like to be alone, a lone elk is more susceptible to being attacked by other animal predators.

[21]      At approximately 11:00 AM Mr. Ready and CO Hall went and found the elk in the grazing area, it was now nonresponsive but still alive. He noticed coyotes were in the area of the lone elk and this was not a surprise as coyotes will feed off a dying elk that is separated from the herd. CO Hall has seen many injured animals die before and knew this elk was dying. He decided the elk was fatally injured and needed to be euthanized.

[22]      After CO Hall killed the elk he conducted a field examination and necropsy of the carcass, noting an entry wound in the left side of the elk's body, but no exit wound. Stomach contents were coming out of the entry wound. He could feel that the elk had a broken rib and this was confirmed when the chest cavity was opened. He found stomach contents in the chest cavity and described the stomach as “destroyed” which indicates the bullet penetrated the stomach.

[23]      He found the bullet inside the elk's body near the right shoulder. The bullet was intact but deformed or “mushroomed”, indicating to him that the bullet had struck something hard such as a bone. He measured the bullet with a calliper and determined it was a 30 calibre.

[24]      Photographs of the elk were taken before and after the necropsy and made Exhibit #13. The photographs show that the elk was struck on its left side by the bullet where its ribs are located. Behind the ribs are the elk's vital organs, including the stomach. Also nearby was a large amount of blood where the elk had been seen by Mr. Ready to be lying down.

[25]      A few days later Sgt. Kruger with a search dog attended to the scene where the shots were fired from and located three spent casings. These casings were all 30 calibre.

[26]      The accused’s rifle and the spent casings and the bullet found in the elk were sent for forensic analysis. The analysis confirmed that the bullet and spent casings and rifle are all 30 calibre; but could not confirm that the bullet was fired from the accused’s rifle (Exhibit #16).

[27]      Both Sgt. Kruger and CO Hall testified. Both are experienced hunters and conservation officers and have hunted elk before. In testimony Sgt. Kruger agreed that elk are a resilient animal and depending where they are shot, can survive a long time. Sgt. Kruger agreed that a 30 calibre is a common rifle to hunt elk, but not the only calibre. Sgt. Kruger agreed that an elk shot in the stomach can take a long time to die - but counsel did not examine further about what a “long time” actually means.

[28]      CO Hall stated in direct examination that an elk can survive for a few hours if it is shot in the stomach. If an elk is shot in a lung or the heart it will die quickly, nearly immediately. In his opinion if the elk was shot by the accused at 8:00 AM it would be in the condition he found it at 11:00 AM. However, when asked in cross-examination if an elk can survive a day after being shot in the stomach the CO said he could not answer that question. Upon further questioning the CO said it was possible that the elk could have been shot the night before, but given his experience and what he observed he does not think this is likely and does not believe that happened in this case.

[29]      Photographs of the location where the elk was found were taken from various points: from Mr. Ready's cabin and from the location the shots were fired, and are found in Exhibit #1. An unscaled Google map (Exhibit #2) of the area was produced by Mr. Ready showing where the shots were fired from and where he initially found the elk, and its final resting place. A detailed scaled map of the area made by a land surveyor was made Exhibit #7. Exhibit #7 shows where the property line is that divides the public and the private land. There is no fence on this portion of the property line.

[30]      The place where the shots were fired from is next to a small lone spruce tree that can be seen in the photographs contained in exhibit #6. Mr. Ready believes that this tree is on his property. However, exhibit #7 shows the property line going through or near this tree. Without a surveyor actually on site to mark the ground where the property line is it is difficult to determine with precision if the accused was on Mr. Ready's property or not. Because of this a charge under the Trespass Act was abandoned by the Crown.

[31]      Photographs show that the grazing area that the herd was in is a vast area, and binoculars and scopes were required to get a good look at the elk. Also, there was a river or creek between the hunters and the herd of elk. It would have been difficult for the hunters to get closer to the elk without crossing this body of water.

[32]      Mr. Becerra Gonzalez testified in his defence. He is not from this area and lives in the lower mainland of this province. He has known one of the other hunters, Mr. Dubois, for about 20 years. Mr. Dubois lives in this area and owns and operated the truck they were travelling in.

[33]      Mr. Becerra Gonzalez was unfamiliar with the area and had never been up this road before. It was dark when they drove up the FSR that morning, he stated that he did not see the posted signs until after the incident when it was daylight. He was properly licensed and had an elk tag, he had hunted elk before and he knows that he can only harvest a six point elk.

[34]      He agrees that he and the third party of their group, Mr. Lee, left the vehicle and went into the field to look at the herd to see if there was a six point elk amongst them. He admits that he fired the shots that were heard by Mr. Ready but that he shot over the elk herd to get them to move. He shot into the tree line above the elk and had no intention of shooting an elk that was not a six pointer. He did not observe any wounded elk and therefore left the area.

[35]      He did not pick up any of the two empty cartridges that were fired and believes he may have dropped a third empty cartridge at the scene.

[36]      Mr. Becerra Gonzalez believes that he was shooting on public land and that the herd was on public land because he did not see or have to cross over a fence to get to where he fired his rifle.

[37]      The WLA sets out two definitions, one that is directly relevant to the charges, and another that is of interest in this matter. The first definition in s. 1 defines “hunt”:

[38]      The next definition is for “harass”:

[39]      The specific sections of the WLA that the accused is charged with committing an offence are ss. 26(1)(c), 35(2)(a) and 39:

[40]      What is not at issue is:

[41]      The Crown submits that it has proven the elements of each offence beyond a reasonable doubt. The Crown concedes that much depends upon whether it has proven that one of the accused’s bullets that were fired struck the injured elk, either knowingly or unknowingly.

[42]      The Crown points to the circumstantial evidence being:

[43]      The Crown submits that if this court finds that the accused knowingly shot at and wounded the elk there can be no other result but convictions on all three counts. The Crown concedes that if this court finds that the accused unknowingly and accidentally wounded the elk then this would be sufficient to find the accused not guilty of the s. 26 and 35 offences.

[44]      The Crown also argues that if this court cannot find that the accused is responsible for shooting the elk that the accused should still be found guilty for the offence of hunting “over or on cultivated land” (the s. 39 offence). The Crown submits that the shots fired by the accused constitute “hunting” as defined by the WLA, even if no game was injured or killed as a result of his shots. The purpose of the shots was to move the herd, this activity is captured in the definition of "hunt”.

[45]      As there is no issue that the shots went “over” private land without the permission of the landowner, the only issue is whether the land was “cultivated”. The evidence of Mr. Ready is that this land had been seeded for grazing purposes and that this land was leased by him for the purpose of grazing cattle.

[46]      The Crown submits that any suggestion by the accused that he thought he was shooting onto public land is not sufficient to establish a due diligence defence. Mr. Ready testified and the photographs show that there were plenty of signs notifying the accused and his hunting party that they were driving through private property and should have taken steps to ensure that they were not shooting onto private property. Merely stating that there was an absence of a fence line is not due diligence.

[47]      The Defence submits that there is limited circumstantial evidence to link the accused's shots being responsible for the injured elk. There are no eyewitnesses to this event other than the accused and Mr. Lee. There is no forensic evidence that conclusively proves the bullet found in the elk was shot from the accused’s rifle.

[48]      The 30 calibre rifle used by the accused is a common calibre used to hunt elk. The testimony of the conservation officers is that an elk is a resilient animal and if shot in the stomach can survive for quite some time before dying. The defence submits that it is possible this elk was shot the previous night by someone else and it is an unfortunate coincidence that it was found shortly after the accused's shots were fired. The defence submits that this alone should raise a reasonable doubt that the accused is responsible for injuring the elk.

[49]      In addition, Defence submits that the actions of the accused after the shots were fired are not consistent with behaviour of a guilty mind. There is nothing to suggest in the facts that the accused wilfully injured this elk.

[50]      Defence submits that in order for the accused to be convicted of the s. 35 offence, failing to kill the elk and include it in his bag limit, the Crown needs to prove that the accused knew that he had injured the elk. The Crown agrees with this submission.

[51]      The first issue to be determined is if the accused is responsible for injuring the elk when he fired his two shots. Although this is not a criminal charge, the Crown is still required to prove that the accused intended to injure the elk or knew that he had injured the elk because of the shots he fired. The onus is on the Crown to prove this beyond a reasonable doubt.

[52]      The evidence to support that the accused shot the elk is circumstantial. This is certainly a strong circumstantial case. All the evidence the Crown has presented points to the accused as being responsible for shooting the elk. I am mindful that the Crown need not have a perfect case and is not required to remove all doubt.

[53]      I need to address one issue first: the co-accused, Mr. Lee. Lee has previously pled guilty to the s. 26 offence of harvesting an elk with less than six points. Although Mr. Lee did not fire any of the shots, he took responsibility for being a party to this offence. Any layperson with knowledge of this would logically conclude that this proves the accused is guilty. Although this makes sense, this is not legally permissible. The admissions of a co-accused cannot be used against the other co-accused. However, this does not mean that Mr. Lee's evidence is unavailable to the Crown or the Defence.

[54]      Mr. Lee was a witness to this event and could have been required to testify. However, he was not called upon to testify by either party. This is not a criticism, I doubt Mr. Lee would have willingly testified. In any event, I must state that his guilty plea is not evidence that I can consider in this case without his in-court testimony.

[55]      Further, there is evidence about what Mr. Lee said to Mr. Ready. When Mr. Ready confronted the hunting party it was Mr. Lee that did most of the talking. In fact, Mr. Lee was the first person to meet Mr. Ready and the accused was some distance behind him when they were returning to their truck. Anything said by Mr. Lee cannot be used against the accused in this case.

[56]      For example, it was stated to Mr. Ready at the scene that they did not fire any shots. If this had been stated by the accused this could be used as evidence in support of the charges; as I would ask myself: why would the accused have denied taking any shots if he felt he was lawfully permitted to do so? I am not satisfied that the accused said this to Mr. Ready. It was most likely Mr. Lee who said this to Mr. Ready.

[57]      I have to consider the accused's testimony and his denial that he wilfully shot the elk. I do not know how good of a marksman the accused is, but his testimony that he is an experienced hunter would suggest that he knows what a kill shot is. If the intention of the accused was to kill this animal the shot that hit the elk was a poor one.

[58]      Also, the accused does not appear to be the type of person that would deliberately waste an animal for the fun of it. It is likely that this was an accidental shot or misfire. The accused may not have been pointing at any animal but this does not exclude the possibility that the bullet went on a trajectory that he did not intend; or in shooting into the trees he inadvertently hit the elk there behind cover.

[59]      The evidence does fall short forensically in that the bullet found in the elk cannot be determined with certainty to be fired from the accused’s rifle. This in itself is not a significant problem for this court. The more significant problem is the testimony of the conservation officers when, under cross-examination, they agreed that it was possible that this elk could have been shot the night before, even though they did not see this as likely.

[60]      The conservation officers were very fair in their testimony, they are almost certainly correct that the accused is responsible for shooting the elk. However, the conservation officers are not required to consider the legal standard of beyond a reasonable doubt.

[61]      In order to eliminate the possibility that this elk was shot earlier than 8:00 AM that morning, expert evidence, perhaps from a veterinarian would be required. In considering the conservation officers’ testimony this court considered the case of R. v. Graat, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819 from the Supreme Court of Canada wherein opinion evidence by a layperson can be accepted at trial. I certainly accept the testimony of the conservation officers and their opinions. However, in this case, given all the facts, it is not quite enough and I find I must acquit the accused of the s. 35 and s. 26 charges.

[62]      If the legal test was on a balance of probabilities, I would have no difficulty finding that it is more likely than not, that the accused is responsible for shooting and injuring the elk. The evidence for me falls just short of proof beyond a reasonable doubt despite the strong circumstantial evidence.

[63]      This leaves the charge of hunting over or on cultivated land, the s. 39 offence. The facts on this charge are not in dispute: the accused, while on public land took shots that carried over and on to private land. The accused's intention in taking these shots was to move the herd. There was no permission given by the land owner to hunt on his land.

[64]      Is firing a shot over a herd of elk in order to move them hunting under the WLA? I find that it is hunting.

[65]      The WLA definition states: “hunt includes shooting at… wildlife… whether or not the wildlife is then or subsequently wounded, killed or captured, with intention to capture the wildlife, or while in possession of a firearm or other weapon”. [emphasis added]

[66]      The plain meaning of this definition includes the situation before this court. “Shooting at” does not require an intent to kill the animal. It does not matter if the animal is struck by the shot. It does not matter if there is no intention to capture the animal if the shooter is in possession of a firearm, as is the case here.

[67]      Other words in the definition of “hunt” are also applicable here in that the accused was “searching for” a six point elk and fired the shots for the purpose of “searching for” a six point elk. I am satisfied that the Crown has proven this element of this offence beyond a reasonable doubt.

[68]      The next question to be determined: is the land the accused shot over cultivated land? I find that it is.

[69]      The WLA does not define “cultivated land”. There are no WLA cases that define the phrase “cultivated land”. There is no dictionary definition of the phrase “cultivated land” either.

[70]      The Oxford English Dictionary (OED) defines “cultivate” as: “to prepare and use (land) for growing crops; to improve and render fertile by husbandry; to till”. “Husbandry” in the OED means “the care, cultivation, and breeding of crops and animals”. [emphasis added]

[71]      The title to s. 39 of the WLA states “Agricultural and cleared land”. If the legislature had intended that the “cultivated land” be more narrowly defined it could have done so by stating “crop land” or “land under cultivation”.

[72]      “Cultivated land” is a phrase that is very broad. It is broader than the phrase “land under cultivation”. In the case of Christmann v. New Nadina Explorations Ltd., the two phrases were considered in the context of a miner’s right to enter private property to explore for minerals. The British Columbia Court of Appeal decision, 2015 BCCA 243 at paragraph 54 confirmed the British Columbia Supreme Court decision, 2014 BCSC 2165 at paragraph 106. The relevant portion of the Court of Appeal decision is set out below:

[73]      The testimony of Mr. Ready satisfies me that this land was used for agricultural purposes being the grazing of cattle. Indeed, he testified that cattle were present. Whether the cattle were present among or near the elk, I am satisfied that the purpose of this pasture land was for the agricultural purpose of grazing and raising cattle and that this comes within the definition of “cultivated land”.

[74]      There is also a good policy basis for this. It is not uncommon that cattle are accidentally shot by hunters. It would seem odd that only crops should be protected by this legislation but cattle are not.

[75]      What is meant by “over” in s. 39? The plain reading of this is obvious: a hunter standing on public land and firing a bullet that crosses “over” any portion of private land is hunting over that land. There can be no other conclusion. Hunting does not merely occur where the hunter is standing but wherever his projectile travels. To find otherwise would lead to the nonsensical result that a hunter who does not have permission to enter private land could, nonetheless, shoot and kill wildlife on private land from public land and then rely on s. 35 (the duty to retrieve injured or killed wildlife) to retrieve the animal.

[76]      This finding is consistent with the definition of “hunt” in that it includes the “chasing” or “pursuing” of wildlife. To hold otherwise would mean a hunter could fire shots over elk on private land to “move” them to public land where they could be killed. This cannot be what the legislature intended.

[77]      I will add that if what the accused did in firing shots over the elk herd is not hunting then what is it? It is possible that this is or borders on “harassment” as defined by the WLA. Even counsel for the accused agreed that shooting over a herd is not a good hunting practice, even if it does not otherwise violate the WLA.

[78]      In the case of R. v. Martin, 2003 BCSC 1973 at paragraph 30 the court  states:

[79]      The accused’s explanation as to why he shot onto private land consists of “not seeing the signs because it was dark when he drove by them” and “he did not see a fence”.

[80]      There were certainly sufficient signs placed by the land owner advising and warning hunters about the private property they were entering into. The signs placed by the owner are more than adequate to comply with s. 4(1) of the Trespass Act [RSBC 2018] Ch. 3 (requiring the signs to be clearly visible in daylight conditions for example).

[81]      Although the signs were not completely accurate about the small specific area that the hunters were on when the accused fired the two shots, they were well within a very large parcel of private land and they were wilfully blind by not making any enquiries and just assuming that “no fence” meant it was public land.

[82]      Indeed, the first large sign that the hunters encountered as they entered the property stated that the private property extended from km 18 to km 27 along the FSR. This incident occurred basically in the middle of this parcel between km 22 and km 23. That they drove up the FSR when it was dark and did not notice the signs is a poor excuse.

[83]      There was no fence or other markers to delineate the private from the public land in the area the accused fired his rifle. However, I find that this does not assist the accused in his due diligence defence. The Closed Areas Regulation B.C. Reg. 76/84 under the WLA states that there is no shooting or hunting along a “highway” or “road allowance”. In s. 12(2) “road allowance” is further defined where private property is near a highway. Section 12(2)(b) states:

[84]      A hunter is presumed to know the law and, at the very least, the accused should have been alerted to the issue of whether he was on public or private land and made some enquiry. In this case the accused made no enquiries.

[85]      A private property owner is not required to build a fence over every portion of their land although, for practical purposes, especially if one has livestock, it is a necessity. In this case, there was no fence and there were cattle on the land. However, there is also a river or creek that runs through this area and clearly acts as a natural barrier for livestock. Across this body of water is the large pasture area where the herd and the injured elk were found.

[86]      In the definition of the Trespass Act “enclosed land” is defined as including land that is “surrounded by a lawful fence and a natural boundary”.

[87]      In this day and age with global positioning systems (GPS), digital maps, and the availability of conservation officers to enquire about the availability of land to hunt on, it is the responsibility of the hunter to make some enquires to ensure he is hunting on available public land.

[88]      Even public land has “no hunting areas” and this is set out in numerous regulations under the WLA. It is the responsibility of the hunter to know these regulations no differently than a licensed driver must know the rules of the road.

[89]      Hunting is a highly regulated activity in this province and, other than indigenous persons, no one has a right to hunt until they have completed and passed a rigorous course designed for the safety of all and to instil knowledge of the law and regulations that govern this activity. It is not tenable for a hunter to make assumptions when there are plenty of resources available to determine his status vis a vis public or private land. The assumptions made by the accused in this case was wishful thinking on his part.

[90]      I find that the Crown has proven the s. 39 offence beyond a reasonable doubt and that the accused has not, on a balance of probabilities established a defence of due diligence, and I convict the accused of this charge (count #3).