Environmental Appeal Board

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1 Environmental Appeal Board Fourth Floor 747 Fort Street Victoria British Columbia Telephone: (250) Facsimile: (250) Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1 APPEAL NO. 96/25(b) In the matter of an appeal under section 101 of the Wildlife Act, S.B.C. 1996, c BETWEEN: Dennis Dunn APPELLANT AND: Deputy Director of Wildlife RESPONDENT BEFORE: A Panel of the Environmental Appeal Board Toby Vigod, Chair Richard Cannings, Member Jane Luke, Member DATE OF HEARING: November 17, 1998 PLACE OF HEARING: Victoria, B.C. APPEARING: For the Appellant: Terrence Robertson, QC For the Respondent: Jeffrey Loenen, Counsel APPEAL This is an appeal of the May 13, 1996 decision of the Deputy Director of Wildlife not to issue Mr. Dunn a permit for the possession of the head and cape of a male thinhorn mountain sheep which he killed on August 5, 1993 (the Ram ). The authority for the Panel of the Environmental Appeal Board to hear this appeal is found in section 11 of the Environment Management Act and section 101(10) of the Wildlife Act, as it was at the time of the kill and the Deputy Director s decision. Section 101(10) limited the Board s power on appeal to either confirming the decision, or to sending the matter back to the decision-maker with directions. Mr. Dunn is seeking an order allowing the appeal and remitting the matter back to the Deputy Director with directions that the decision to issue a permit for possession should be made on proper considerations. BACKGROUND Mr. Dunn is a successful bow and arrow trophy hunter with over 40 years experience. He began to hunt mountain sheep in 1984 as a non-resident hunter, and since about 1990, Mr. Dunn has been hunting sheep and other species as a resident in British Columbia. Mr. Dunn is also a long-standing member of several

2 APPEAL NO. 96/25(b) Page 2 organizations dedicated to promoting ethics in fair chase bow hunting, and preserving healthy populations of big game species. In early August 1993, Mr. Dunn embarked upon a week long solo sheep hunting expedition to Todagin Mountain, B.C. On August 5, Mr. Dunn spotted the Ram that has become the subject of these proceedings. He studied the Ram through binoculars and a high-power spotting scope for at least four hours to determine whether it met his understanding of the term full curl as set out in the 1993 Hunting and Trapping Regulations Synopsis (the Synopsis ). He concluded that since the left horn of the Ram appeared to exhibit a 360-degree rotation, the Ram was full curl as the term is used on page 52 of the Synopsis, and therefore, could be legally taken. Mr. Dunn subsequently arrowed the Ram from a distance of about 11 metres. On August 9, 1993, Mr. Dunn presented the head and cape of the Ram for compulsory inspection at the Surrey District Office of the Ministry of Environment, Lands and Parks ( the Ministry ). After inspecting the horns, Ministry staff informed Mr. Dunn that the Ram did not meet the legal definition of full curl thinhorn ram, and was therefore an illegal kill. The Ministry confiscated the head and cape, and Mr. Dunn was charged with killing a thinhorn mountain sheep ram at a time not within the open season contrary to section 27(1)(c) of the Wildlife Act and section 8(1) of Schedule 6 of the Hunting Regulation. The head of the Ram was sent for further inspection to the Regional Fish and Wildlife Manager in Smithers, Mr. Allan Edie. After considering the age and configuration of the horns, as well as two letters from Mr. Dunn, Mr. Edie concluded in a written decision dated September 1, 1993, that he would not issue a permit for possession of the Ram to Mr. Dunn. Mr. Dunn appealed Mr. Edie s decision to the Director of Wildlife. That appeal was delayed pending the Provincial Court s decision on the charge against Mr. Dunn with respect to the kill. In a decision dated January 30, 1995, Provincial Court Judge Trueman dismissed the charge against Mr. Dunn. Her Honour Judge Trueman found that the Crown had failed to prove that the ram was not full curl at the time of the kill. Judge Trueman accepted that the horns were less than full curl on August 24, the date of Mr. Edie s inspection. However, because sheep horns are subject to shrinkage over time, Judge Trueman was not satisfied beyond a reasonable doubt that the horns were less than full curl on August 5, the date of the kill. Notwithstanding her acquittal of Mr. Dunn, Judge Trueman ordered that the Ram s head and cape be forfeited to the Crown on the grounds that Mr. Dunn knew, or thought, or believed that this animal did not meet the legal definition in British Columbia. Mr. Dunn subsequently appealed Judge Trueman s Order of Forfeiture to the B.C. Supreme Court. In a judgement issued June 13, 1995, Mr. Justice Errico quashed the Order on the grounds that the Provincial Court Judge acted beyond her jurisdiction in ordering the forfeiture of the Ram. Mr. Justice Errico also found that he lacked the authority to order the Ram returned to Mr. Dunn, and so the head and cape of the Ram remained in the possession of the Crown.

3 APPEAL NO. 96/25(b) Page 3 Mr. Dunn subsequently resumed his appeal of the September 1, 1993 decision in which Mr. Edie declined to grant him a permit to possess the Ram. The matter was brought before Mr. William Munro, Deputy Director of Wildlife. In written reasons given May 13, 1996, Mr. Munro upheld Mr. Edie s decision. Mr. Dunn appealed to the Environmental Appeal Board. In Dunn v. Deputy Director of Wildlife (Appeal No. 96/25, April 25, 1997)(unreported) a Panel of the Board upheld Mr. Munro s decision. On November 7, 1997, Mr. Dunn made application to the B.C. Supreme Court for an Order setting aside the Environmental Appeal Board s decision in Dunn, and compelling the Board to direct the Deputy Director to issue a permit to Mr. Dunn for the possession of the Ram. On May 21, 1998, Mr. Justice Harvey ordered, by consent of the parties, that the Board s decision be set aside. The Board did not attend the hearing and did not consent to the Order. At Mr. Dunn s request, the Deputy Director s decision not to issue Mr. Dunn a possession permit is now before this Panel for reconsideration. ISSUES Two primary issues are before the Panel on this appeal. The Panel finds it convenient to address them in the following order: 1. Whether, by misconstruing the evidence or by not considering relevant evidence, the Deputy Director erred in the exercise of his discretion not to issue a possession permit to Mr. Dunn. 2. Whether, by taking into account irrelevant considerations, the Deputy Director erred in the exercise of his discretion not to issue a possession permit to Mr. Dunn. Counsel for Mr. Dunn raised two additional issues for the first time in his reply submissions at the oral hearing. These are, first, whether Mr. Dunn s misinterpretation of the legal definition of full curl thinhorn ram may be excused as an officially induced error; and second, whether the Deputy Director fettered his discretion in deciding not to issue a possession permit to Mr. Dunn. Each of these issues will be addressed in turn below. RELEVANT LEGISLATION, REGULATIONS, AND DEFINITIONS Section 2 of the Wildlife Act provides: (1) Ownership in all wildlife in British Columbia is vested in the government. (2)A person does not acquire a right of property in any wildlife except in accordance with a permit or licence issued under this Act or the Game Farm Act or as provided in subsection (3) of this section.

4 APPEAL NO. 96/25(b) Page 4 (3)A person who lawfully kills wildlife and complies with all applicable provisions of this Act and the regulations acquires the right of property in that wildlife. The Wildlife Act Permit Regulations allow a person to obtain a permit to possess any dead wildlife: (1) A regional manager, by issuing a permit with whatever conditions, limits and period or periods he may include in or attach to the permit, may authorize (l) a person to possess dead wildlife or parts of them The Wildlife Act Hunting Regulation defines full curl thinhorn mountain sheep as follows: means any thinhorn ram mountain sheep that has attained the age of eight years as evidenced by true horn annuli as determined by the regional manager or his designate, or whose horn tip, when viewed from the side at right angles to the sagittal plane of the skull, extends upwards beyond the dorsal surfaces of the suture joining the left and right nasal bones. For ease of interpretation, the Ministry has translated this definition into plain English in the Synopsis, its annual field guide for hunters. On page 70 of the 1993/94 Synopsis are the headings Hunting General Information, Section C, Definitions. Beneath the headings are definitions of several terms used in the Synopsis, including full curl thinhorn ram. That definition reads: FULL CURL THINHORN RAM - means any male thinhorn mountain sheep which has attained the age of eight (8) years as evidenced by yearly horn growth annuli as determined by the Regional Manager or his designate, or whose horn tip extends upwards beyond the forehead-nose bridge when viewed from the side. To assist in the interpretation of that definition, there are line drawings of the heads of two thinhorn rams on page 71 of the Synopsis. The illustration labelled legal depicts a ram with horns which do not have a 360-degree rotation, but which do meet the definition of full curl on page 70. The other illustration, labelled illegal depicts a thinhorn ram that clearly is not full curl by any interpretation. Directly beneath the illustrations is the following proviso: Legal rams cannot be identified unless viewed squarely from the side. Horn annuli do not constitute a good field guide for ageing sheep. These field definitions adequately conform to legal definitions, copies of which are available at BC Environment offices. Page 52 of the Synopsis offers information particular to hunting in the Skeena region (where Todagin Mountain is located), including the season dates for

5 APPEAL NO. 96/25(b) Page 5 particular species that may be hunted. The information pertaining to thinhorn mountain sheep reads: THINHORN MOUNTAIN SHEEP (RAMS ONLY) Full Curl or greater Management Units: 6-17, 6-18 to 6-26, 6-29 Aug 1 Oct 20 See Maps F36 and F37 There is no reference on page 52 to the definition and illustration of the term full curl contained on pages 70 and 71 of the Synopsis. DISCUSSION AND ANALYSIS The Panel finds it helpful to preface the following discussion by noting that both parties to this appeal agree that the configuration of the Ram s horns do not meet the requirement for full curl as legally defined in the Hunting Regulation and set out on page 70 of the Synopsis. The parties also agree that the Ram had not reached 8 years of age at the time it was harvested. The issue before the Panel, then, is not whether this ram was legally taken, but rather, whether the Deputy Director should have exercised his discretion under section 1(l) of the Permit Regulations to grant a permit for the possession of the Ram notwithstanding that the Ram was not of legal size or age at the time it was taken. The Panel also acknowledges Mr. Dunn s concern that in previous proceedings with respect to this matter, his evidence as to his state of mind has been misconstrued or ignored. The Panel wishes to make clear its understanding of Mr. Dunn s position. Mr. Dunn strongly argues that at the time he arrowed the Ram, he believed the Ram to be of legal size. Mr. Dunn founded this belief on the fact that the Ram s left horn completed a 360-degree arc a geometric full curl which he thought was in accord with the requirement on page 52 of the Synopsis. Mr. Dunn admits to being aware of the definition and illustrations on pages 70 and 71 of the Synopsis, and knew that those definitions and illustrations did not correspond to his understanding of full curl. However, Mr. Dunn believed that the requirement on page 52 was more rigorous (in that it demanded a more mature ram) than the definition of full curl on page 70. Therefore, he deduced that the page 70 definition was a sort of minimum standard definition to full curl by which a hunter s trophy could still pass muster if it failed to satisfy the first definition [a geometric full circle of growth]. 1. Whether, by misconstruing the evidence or by not considering relevant evidence, the Deputy Director erred in the exercise of his discretion not to issue a possession permit to Mr. Dunn. Mr. Dunn submits that the Deputy Director s decision is flawed because he did not give consideration to Mr. Dunn s sworn testimony in the Provincial Court proceedings before Judge Trueman. He argues that the Deputy Director ought to have considered the transcript of the proceedings as evidence of his contention that at the time he shot the Ram, he had an honest but mistaken belief that it was legal.

6 APPEAL NO. 96/25(b) Page 6 Mr. Dunn cites specific excerpts from the transcript in which he argues that his testimony in this regard is clear. He argues that the transcript goes to the heart of the issue to be determined in this matter, and that the Board should admit and consider the transcript as fresh evidence. Mr. Dunn recognizes that the Wildlife Act places the onus on every hunter to be certain that an animal is of legal age or size before killing it. He argues that he discharged that onus because at the time of the kill, he had an honest but mistaken belief that the Ram was legal, and would be accepted by the Ministry as such. Because it is Mr. Dunn s position that the Deputy Director improperly characterized his mental state at the time of the kill, Mr. Dunn submits that the Deputy Director did not turn his mind to two important questions. These are, first, whether Mr. Dunn s honest but mistaken belief was reasonable; and second, whether Mr. Dunn s honest but mistaken belief constitutes an exceptional circumstance such that a permit to possess ought to be issued. Mr. Dunn strongly argues that his belief was reasonable. He points out that the Ram was a class IV trophy animal which certainly would have been accepted as legal in other jurisdictions. He also urged the Panel to consider a letter drafted on his behalf by Wayne Heimer, Sheep Research Biologist for the Alaska Department of Fish and Game. In this letter, Mr. Heimer states that, in his opinion, a geometrical 360-degree definition of full curl, being the most appropriate for optimal management of Alaskan sheep populations, is the least subjective, and therefore the most easily enforceable definition. Mr. Heimer also judges from photographs of the Ram that it is likely that the animal would meet the Alaskan definition of full curl. At the hearing, the Respondent submitted that the transcript of the proceeding before Judge Trueman was inadmissible on this appeal. He said that Mr. Dunn failed to introduce the transcript when he could have done so at the hearing before the Deputy Director, and that this failure is the only reason the Deputy Director did not consider the transcript in coming to his decision. The Respondent also argued that the transcript should not be admitted before this Panel because it is not relevant to the present proceedings. As this Panel does not have jurisdiction to substitute its own decision for that of the Deputy Director in this matter, the Respondent argued that the Panel need only consider evidence that was actually before the Deputy Director in order to determine if his decision was bona fides. The Respondent contends that, in any event, consideration of the transcript of the Provincial Court proceedings would not have affected the Deputy Director s decision. Even without the benefit of reading Mr. Dunn s sworn testimony on the matter, the Deputy Director was well aware of Mr. Dunn s position as to his state of mind at the time he shot the Ram. The Respondent says that the Deputy Director did not misconstrue that position, but accepted it as Mr. Dunn s honest but mistaken belief, and went on to find that the belief was not reasonable, and did not constitute an exceptional circumstance in which a possession permit should issue. At the hearing before this Panel, it came to light that Mr. Dunn did possess the transcript at the time of the Deputy Director s hearing. Although he entered

7 APPEAL NO. 96/25(b) Page 7 specific excerpts of the transcript at that hearing, he did not introduce other portions he now wishes had been before the Deputy Director. The Panel found at the oral hearing that since the transcript is relevant to establishing Mr. Dunn s state of mind at the time of the kill, the entire record should be allowed in as evidence on this appeal. The Panel also noted that Mr. Dunn was not represented by counsel at the hearing before the Deputy Director. Now, after having considered Mr. Dunn s sworn testimony before Judge Trueman as to his state of mind, the Panel finds that the Deputy Director s decision was not flawed as a result of not receiving the entire transcript. The relevant findings of the Deputy Director are as follows: In his submission to Mr. Edie of August 27, 1993, Mr. Dunn stated Clearly, the photos show that the left horn of my ram does not extend upwards beyond the forehead nose bridge. He goes on to say once I determined that the horn could never rise above the bridge itself, I decided to kill the ram on the basis that the horn did at least complete a 360-degree arc Mr. Dunn subsequently wrote on February 15, 1994 that when he shot the ram on August 5, 1993 he absolutely believed him to be legal by the definition given on page 52 of the Synopsis, but not by the definition given on page 70. I note that page 52 of the Synopsis does not give a definition but rather says full curl or greater. For the definition of full curl one must go to page 70. In this passage, the Deputy Director summarily - but accurately - sets out Mr. Dunn s argument as to his state of mind at the time of the kill. The Deputy Director correctly understood, on the evidence before him, that Mr. Dunn believed the Ram to be full curl according to the use of the term on page 52 of the Synopsis, but not according to the definition on page 70. The Panel finds that to have considered all of Mr. Dunn s testimony on the same issue would have made no difference to the Deputy Director s final decision. The Deputy Director found that Mr. Dunn s honest but mistaken belief as to the legality of the Ram was not reason to grant Mr. Dunn a permit to possess that animal. The Environmental Appeal Board has acknowledged in Dow Dollar v. Deputy Director of Wildlife (Appeal No. 96/13, January 6, 1997)(unreported) that the purpose of the Wildlife Act is to conserve wildlife, and that the discretion to issue a permit to possess dead wildlife must be exercised in a manner consistent with that purpose. That is, when a hunter has taken an undersized or underage animal, a permit to possess that animal or its parts should be issued only in the most exceptional of circumstances. As these circumstances are not statutorily defined, they are left to the discretion of the Director or Regional Manager. The Panel finds that the Deputy Director acted in accordance with the purpose of the Act in declining to issue a possession permit to Mr. Dunn. The Panel finds that the Deputy Director did not misconstrue the evidence and that he properly considered the evidence before him, including the reasonableness of

8 APPEAL NO. 96/25(b) Page 8 Mr. Dunn s belief that the ram was legal. Even if he had the benefit of the entire transcript, the Panel finds that it would not have made a difference to his decision, and that he did not err in the exercise of his discretion not to issue a possession permit to Mr. Dunn. 2. Whether, by taking into account irrelevant considerations, the Deputy Director erred in the exercise of his discretion not to issue a possession permit to Mr. Dunn. Mr. Dunn submits that in exercising his discretion not to grant a possession permit for the Ram, the Deputy Director took into account and was clearly influenced by irrelevant considerations. Mr. Dunn says that this abuse of discretion amounts to a jurisdictional error. In his written decision, the Deputy Director cites the following excerpt from Judge Trueman s reasons: [w]hen Mr. Dunn shot the animal, he had it in his mind that it was not an animal that met the definition under the law of British Columbia. Mr. Dunn says that in fact he did believe the animal to be legal at the time of the kill, and that Judge Trueman s finding does not accurately describe his state of mind. Mr. Dunn argues that the cited passage is therefore in error, and that the Deputy Director should not have considered it. Mr. Dunn also argues that in any event, Judge Trueman s mistaken finding no longer exists. That is, since her Order of Forfeiture has been set aside as ultra vires the power of a Provincial Court Judge, the reasoning which led to that finding must also be a nullity. Mr. Dunn says that although it is not possible to discern the weight afforded by the Deputy Director to Judge Trueman s finding, in considering it at all, the Deputy Director exceeded his jurisdiction. The Respondent submits that the consideration of an irrelevant factor in an exercise of administrative discretion amounts to an error of jurisdiction only if the factor was wholly or clearly irrelevant. The Respondent says that the findings of a Provincial Court Judge rendered in the course of a judgement on a criminal charge arising out of the same set of facts, is not wholly or clearly irrelevant to the Deputy Director s discretionary decision not to issue a permit to possess the Ram in this case. Further, the Respondent argues that the subsequent setting aside of Judge Trueman s Forfeiture Order has no effect on the validity of Judge Trueman s findings of fact. Although the Order is now a nullity, the Respondent says that Judge Trueman s findings of fact still stand. The Respondent also says that the Deputy Director s written reasons give no indication that he relied in any substantial way on Judge Trueman s findings. Although the Deputy Director cited Judge Trueman, the Respondent submits that the Deputy Director ultimately reached his own conclusion, on the basis of all of the evidence before him, as to Mr. Dunn s state of mind. Both parties interpret Judge Trueman s finding to be that Mr. Dunn believed the ram was not legal by any standard when he killed it. The Respondent says, however, that the Deputy Director s conclusion on the question of Mr. Dunn s state

9 APPEAL NO. 96/25(b) Page 9 of mind at the time of the kill was different than Judge Trueman s, and is a more accurate reflection of Mr. Dunn s position. On August 9, 1993, when Mr. Dunn had the Ram compulsorily inspected, Conservation Officer Van Damme took a Charter-warned statement from Mr. Dunn. The following exchange was recorded: Q. Did you determine that the stone sheep you shot was a full curl according to the definition in the hunting synopsis? A. No, I didn t as I stated in my last paragraph. I am acknowledging that I knew it was not full curl in the text book definition but there was no doubt in my mind that it was full curl by any geometrical definition. In the proceedings before Judge Trueman, Mr. Dunn, under cross-examination, was referred to the above statement and was asked what he meant by textbook definition. Mr. Dunn responded: By the textbook definition, I meant the details contained in that definition on page 70. It is clear, then, that Mr. Dunn s position as to his state of mind at the time of the kill was plainly before Judge Trueman. At page 7 of her reasons for judgement, Judge Trueman writes: Mr. Dunn knew, or thought, or believed that this animal did not meet the legal definition in British Columbia. He believed that the law was improperly drafted to take into account the conditions on Todagin Mountain, and he thought that he had a trophy animal that would be accepted as a trophy animal even though it did not probably meet the definition in British Columbia. Mr. Dunn chose at that point to shoot this animal anyway. The Panel finds that if the word definition in the above passage is interpreted to mean definition on page 70 of the Synopsis, Judge Trueman s finding may be an accurate reflection of Mr. Dunn s position. However, if it was not, the Panel has found above that the Deputy Director properly understood Mr. Dunn s position as to his state of mind at the time of the kill and was not influenced by Judge Trueman s reasons. The Panel also finds that the Deputy Director did not exceed his jurisdiction by taking into account Judge Trueman s findings. The Panel accepts the Respondent s submissions that the findings that lead to the Forfeiture Order stand even though the Order itself has been quashed. The Panel also observes that Judge Trueman s reasons with respect to the Forfeiture Order simply confirm her findings in the main body of her decision - findings that could not have been affected by the subsequent quashing of her Forfeiture Order. However, as noted above, the Deputy Director came to his own conclusion as to Mr. Dunn s state of mind and its reasonableness.

10 APPEAL NO. 96/25(b) Page Other issues At the oral hearing before the Panel, counsel for Mr. Dunn raised two additional arguments in reply to the Respondent s submissions. First, Mr. Dunn points out that he formed his mistaken belief as to the legality of the Ram on the basis of the Ministry s Synopsis. As such, he argues that his mistaken belief should be excused as an officially induced error. Mr. Dunn also argues that the Deputy Director has fettered his discretion. In support of this position, Mr. Dunn points to the following excerpt from the Deputy Director s decision: The onus is on hunters in the field to be certain that game is legal before they kill it. In this instance Mr. Dunn believed at the time he shot the sheep that it would not meet the definition on page 70 of the Synopsis although he did believe it had a geometric full curl. I do not believe the circumstances surrounding the taking of this animal warrant a permit being issued. [emphasis added] Mr. Dunn says that from this passage, it appears that the Deputy Director has adhered blindly to the principle that only animals of legal age or size may be possessed by the hunter, and has ignored his statutory discretion to stray from that principle in exceptional circumstances. Mr. Dunn says that the facts of this case constitute exceptional circumstances to warrant the exercise of discretion in his favour. The Respondent submits that the issues of fettering and officially induced error are not properly before the Panel, since neither have been plead according to correct procedure and were only raised in reply during the Appellant s final submissions. In the alternative, the Respondent submits that the defence of officially induced error must fail because Mr. Dunn has not demonstrated that he has reasonably relied on erroneous legal advice. Likewise, the Respondent argues that because there is no foundation for Mr. Dunn s assertion that the Deputy Director fettered his discretion, it cannot be inferred from his decision that he closed his mind to the issues before him. In spite of the procedural irregularity with which these two additional issues were raised, the Panel has duly considered the arguments both parties have put forth. The Panel does not accept Mr. Dunn s defence of officially induced error. Officially induced error has been allowed as a defence or excuse against criminal or quasicriminal regulatory charges. Further, the Forest Appeals Commission has recently found that officially induced error may constitute a defence to administrative penalties under the Forest Practices Code (see Atco Lumber Ltd. v. Government of British Columbia (Appeal No. 97-FOR-04, January 8, 1998)(unreported), and Arnold and Julie Hengstler v. Government of British Columbia (Appeal No. 97-FOR-19, February 24, 1998)(unreported)). However, the Panel finds that generally the defence has no application to an exercise of administrative discretion. It may only

11 APPEAL NO. 96/25(b) Page 11 be relevant as a factor to be considered in relation to a determination of the reasonableness of Mr. Dunn s belief that the ram was of legal size. In any event, the requirements for the application of officially induced error are not made out on the facts of this case. In R. v. Jorgenson, [1995] 4 S.C.R. 55, Chief Justice Lamer sets out the specific requirements for officially induced error. These have been summarized in the headnote of the case as follows: In order for an accused to rely on an officially induced error as an excuse, he must show, after establishing he made an error of law (or of mixed law and fact), that he considered his legal position, consulted an appropriate official, obtained reasonable legal advice and relied on that advice in his actions. Two additional requirements, as enumerated in R. v. Robertson (1984), 43 C.R. (3d) 39 at 47 (Ont. Prov. Ct.) are that the official must give erroneous advice, and that the actor s error in law must be apparently reasonable. Prior to his Todagin Mountain hunting trip, Mr. Dunn referred to the Synopsis to familiarize himself with the legalities of hunting thinhorn ram in the Skeena Region. When he identified what he thought to be an inconsistency between pages 52 and 70 of the Synopsis, he did not contact an official from the Wildlife Branch for advice on the definition of full curl, but proceeded according to his own interpretation of the Synopsis. He also overlooked the disclaimer in the Synopsis which sets out that the Synopsis is not the law and that the Hunting Regulations should be consulted for greater certainty. The Panel also dismisses Mr. Dunn s argument that the Deputy Director fettered his discretion in refusing to grant Mr. Dunn a possession permit. The Deputy Director clearly recognized the issue before him to be whether he should issue a possession permit even if he were to find that the Ram did not meet the minimum legal requirements. It cannot be inferred from the Deputy Director s general statement the onus is on hunters to be certain that game is legal before they shoot it that he had closed his mind and would never issue a possession permit for an illegal animal. Rather, the Deputy Director concluded I do not believe the circumstances surrounding the taking of this animal warrant a permit being issued. DECISION In coming to its decision, the Panel has carefully considered all of the evidence before it, whether or not specifically reiterated here. Section 101(10) limits the Board s jurisdiction to either dismissing the appeal or sending the matter back to the Deputy Director with directions. It is the Panel s duty on appeal to determine whether the Deputy Director properly exercised his discretion uninfluenced by irrelevant considerations and not arbitrarily or illegally (Olsen v. Walker et. al. (August 21, 1989), Duncan 2286 (B.C.S.C.)). The Panel accepts that Mr. Dunn honestly believed that the Ram was legal at the time of the kill. This belief, however, was mistaken, and the relevant question is

12 APPEAL NO. 96/25(b) Page 12 whether this honest but mistaken belief was reasonable in the circumstances. The Panel finds that it was not. A hunter of Mr. Dunn s experience should have known the relevant law in this province. The law is set out clearly in the Hunting Regulations and is summarized on page 70 of the Synopsis. Mr. Dunn testified that he had studied the Synopsis before his Todagin Mountain hunting trip, but he overlooked the brochure s disclaimer that the Synopsis is not the law. He also admitted that he had not reviewed the Hunting Regulations. As discussed, Mr. Dunn identified what he thought to be an inconsistency between pages 52 and 70 of the Synopsis, but rather than consulting the Hunting Regulations directly or contacting an official from the Wildlife Branch for assistance, Mr. Dunn proceeded according to his own definition of the term full curl. Mr. Dunn s definition is not the law in this province. Furthermore, the fact that the Ram may be a Class IV trophy animal, or that it may be legal in other provinces or states, is not relevant to the law in British Columbia. The Panel has found that the Deputy Director did not err on any of the four grounds for appeal raised by Mr. Dunn. The Panel concludes that the Deputy Director properly exercised his discretion to deny Mr. Dunn a permit to possess the Ram, and upholds that decision. The appeal is denied. Toby Vigod Toby Vigod, Chair Environmental Appeal Board December 10, 1998