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 DECISION NO WIL-004(b) In the matter of an appeal under section of the Wildlife Act, R.S.B.C. 1996, c BETWEEN: Barry Anthony Barnes APPELLANT AND: Deputy Director RESPONDENT BEFORE: A Panel of the Environmental Appeal Board Alan Andison, Chair DATE: August 11, 2005 PLACE: APPEARING: Victoria, BC For the Appellant: Reinhard Burke, Counsel For the Respondent: Joseph G. McBride, Counsel PRELIMINARY DECISION Barry Anthony Barnes appealed the March 23, 2005 decision of Tom J. Ethier, Deputy Director (the Deputy Director ), Fish, Wildlife Recreation and Allocation Branch, Ministry of Water, Land and Air Protection 1 (the Ministry ), to cancel Mr. Barnes hunting licence for fifteen years. Mr. Barnes Notice of Appeal raised numerous issues regarding alleged jurisdictional and procedural errors in the proceedings before the Deputy Director. Given that those issues could be determinative of the appeal without the need for the Board to consider the merits of the fifteen-year cancellation period, the Board decided to consider those issues at a preliminary hearing. This decision addresses those issues. The Environmental Appeal Board has the authority to hear this appeal under section 93 of the Environmental Management Act, and section of the Wildlife Act. Section 101.1(5) of the Wildlife Act provides that the Board may: a) send the matter back to the person who made the decision being appealed, with directions, 1 Effective June 20, 2005, the Ministry of Water, Land and Air Protection became the Ministry of Environment.

2 DECISION NO WIL-004(b) Page 2 b) confirm, reverse or vary the decision being appealed, or c) make any decision that the person whose decision is appealed could have made, and that the board considers appropriate in the circumstances. Mr. Barnes seeks an order reversing the decision of the Deputy Director on the basis that the Deputy Director had no jurisdiction to make the order that he did. Mr. Barnes further submits that, if the Board decides that the Deputy Director has the jurisdiction to make the orders that he did, his decision was in error, and Mr. Barnes asks the Board not to send the matter back to the Deputy Director because there is a reasonable apprehension of bias on the part of the Deputy Director. If the Board decides to send the matter back to the Deputy Director, then Mr. Barnes asks that the Board give the following directions: a) the Deputy Director be precluded, by virtue of section 78 of the Offence Act, from considering charges against Mr. Barnes under the Wildlife Act that were dismissed by the Provincial Court; b) the Deputy Director must provide Mr. Barnes with adequate notice of the convictions or other grounds for cancellation which he intends to consider; and, c) the Deputy Director must provide Mr. Barnes with the opportunity to be heard, and he must hear Mr. Barnes. The Deputy Director submits that the proceedings need to continue, and he maintains that there is no reasonable apprehension of bias. However, the Deputy Director requests that the Board not remit the matter to the Deputy Director, because the matter would likely be appealed to the Board again, in any event. BACKGROUND In July 2001, Mr. Barnes was charged with 35 offences under the Wildlife Act, as a result of hunting activities that occurred in 1999 and On January 2, 2002, Mr. Barnes was convicted in the BC Provincial Court of nine of those offences. Court documents indicate that Mr. Barnes was convicted of offences under sections 75, 81(a), 81(b), 82(1)(c), and 82(1)(d) of the Wildlife Act. Most of the convictions relate to Mr. Barnes knowingly making false statements in documents required under the Wildlife Act. The other convictions relate to making a false statement to a Conservation Officer, allowing his species licence for bobcat to be used by another hunter, using another persons species licence for cougar, and failing to promptly report that he had killed a wolverine by accident or for the protection of life or property. Mr. Barnes was acquitted of one of the charges and the other 25 charges were dismissed. Mr. Barnes was sentenced to concurrent terms of 14, 30, and 7 days in jail for three of the offences, and he was sentenced to fines totaling $12,000 for the other offences. In addition, Mr. Barnes hunting licence was automatically cancelled upon sentencing under section 24(8) of the Wildlife Act. He was also further prohibited, under section 84(1) of the Wildlife Act, from carrying hunting weapons for 12

3 DECISION NO WIL-004(b) Page 3 months, being in the company of others with hunting weapons and being in possession of dogs outside his property. In September 2003, following the completion of the court ordered cancellation and suspension, Mr. Barnes applied for and obtained a new hunting licence. However, in addition to setting out penalties for offences, the Wildlife Act provides for additional administrative penalties including the suspension or cancellation of hunting licences. Administrative penalties are distinct from the offence-related penalties, and are levied by Ministry decision-makers rather than the courts. Section 24(2) of the Wildlife Act authorizes the Deputy Director to cancel or suspend hunting privileges. On March 29, 2004, the Deputy Director wrote to Mr. Barnes: In the matter of and with reference to the circumstances surrounding your actions and convictions on January 2, 2002 at Kamloops BC and under Sections 33(2), 82(1)(b), 82(1)(c), 82(1)(d) and 75 Wildlife Act RSBC 1996 c. 488 and s (1) of BC Reg. 190/84. As a consequence of the above convictions under s. 82(1)(b) of the Wildlife Act for: making a false statement on a licence issued by him, be advised that your hunting licence was automatically cancelled and you were ineligible to hunt or to obtain or renew a hunting licence for a period of one (1) year from the date of your conviction, that is, until January 2, Please take note that I will be considering a further period of ineligibility as a result of this incident. My authority for doing so is under section 24 of the Wildlife Act and section 9(3) of BC Regulation 53/98. I have the power to (a) suspend your angling, hunting and firearm carrying privileges, (b) cancel your angling, hunting and firearm licences, (c) order that you are ineligible to obtain or renew angling, hunting or firearm licences for up to 30 years, and (d) order that you successfully complete the Conservation and Outdoor Recreation Education (CORE) examinations. My authority for doing so is found in section 24 of the Wildlife Act and section 9(3) of BC Reg. 53/98. The notice was followed by nine pages listing the documents and submissions the Deputy Director intended to consider in the matter. Counsel for Mr. Barnes responded to the Deputy Director s notice in written submissions dated May 19, For reasons that are unclear to the parties, the Deputy Director did not receive the submissions of Mr. Barnes counsel, and he rendered a decision based on the assumption that Mr. Barnes did not dispute the facts as presented to the Deputy Director by Ministry staff. In his March 23, 2005 decision, the Deputy Director states in part:

4 DECISION NO WIL-004(b) Page 4 As required under section 24 of the Wildlife Act, I have considered whether to cancel your angling, hunting and firearm licencing privileges as a result of the charges and surrounding circumstances for: making a false statement on a licence issued by him. The following factors were considered in reaching my decision: 1. You have shown a flagrant disregard for the wildlife resource. 2. You actions merit deterrence. 3. Your actions, especially illegal guiding, are reprehensible. 4. Recording a killing of an animal for a region other than where it was actually killed is illegal and irresponsible. Such actions have a negative impact on wildlife management and therefore must be deterred. 5. Your actions have the potential to severely skew wildlife management efforts, as they provide inaccurate data upon which wildlife management decisions are based. 6. Your actions demonstrate disregard for the law as well as disrespect and a lack of appreciation for wildlife and the importance of managing the resource. 7. You encourage unregulated depletion of the wildlife resource by others. 8. You were untruthful on a number of occasions. 9. Your actions demonstrate willingness to exploit the wildlife resource for personal gain. 10. You have a history of violations. 11. You have not disputed the facts, so I have taken the facts as presented to me to be true. [emphasis in original] The decision also states that Mr. Barnes is ineligible to hunt or obtain a B.C. hunting licence until 23:59 hours on March 18, 2020, and he must successfully complete the Conservation and Outdoor Recreation Education program before his hunting privileges may be reinstated. Mr. Barnes April 7, 2005, Notice of Appeal lists several grounds for appeal, which may be summarized as follows: 1. The Deputy Director s decision indicates that he did not consider Mr. Barnes written submissions dated May 19, The Deputy Director s decision was based on the incorrect assumption that Mr. Barnes did not dispute the facts presented.

5 DECISION NO WIL-004(b) Page 5 3. The Deputy Director was precluded by section 78(2) of the Offence Act from taking proceedings against Mr. Barnes where an order dismissing charges has been made in the Provincial Court. 4. The Deputy Director s decision is based on grounds other than those specified in his written decision. 5. The Deputy Director has no jurisdiction to suspend or cancel the licence under section 24(2) of the Wildlife Act, because convictions under section 82 of that Act are not offences that are grounds for suspension or cancellation. In his Notice of Appeal, Mr. Barnes also requested a stay of the Deputy Director s decision. The Board denied the stay application (Appeal No WIL-005(a), June 9, 2005). ISSUES 1. Whether the Deputy Director had jurisdiction to suspend or cancel Mr. Barnes hunting licence under section 24 of the Wildlife Act. 2. Whether section 78 of the Offence Act or the common law doctrine of abuse of process preclude the Deputy Director from bringing a proceeding against Mr. Barnes to cancel his licence or extend his ineligibility based on dismissed charges or convictions under the Wildlife Act. 3. Whether Mr. Barnes received adequate notice of the matters that the Deputy Director considered. 4. What are the consequences for this proceeding of the Deputy Director s failure to consider Mr. Barnes written submissions? RELEVANT LEGISLATION The following sections of the Wildlife Act [effective June 29, 1999 to November 19, 2003] are relevant to this appeal: Suspension and cancellation of licences 24 (2) If a person holding a licence or limited entry hunting authorization issued under this Act or the regulations is convicted of an offence under (a) this Act, other than section 22, subsection (6), (7) or (14) of this section, sections 26 (1) (a), (e), (f) and (g), 28, 81 and 82, or for any other cause considered sufficient by the director, and after providing an opportunity for the person to be heard, the director may suspend the licence or limited entry hunting authorization and all rights under it for a period.

6 DECISION NO WIL-004(b) Page 6 (5) If a licence or limited entry hunting authorization is cancelled, the director may order that the person is ineligible to obtain or renew a licence or limited entry hunting authorization for a period, within the prescribed limits, and the director must inform the person of the period of ineligibility. (8) A hunting licence or limited entry hunting authorization issued to a person under this Act is cancelled automatically from the date of sentencing, the date that the passing of sentence is suspended, the date of being granted an absolute or conditional discharge or the date a court makes a disposition under the Young Offenders (British Columbia) Act if the person is convicted of (a) an offence under section 22, 26(1)(a), (e), (f) or (g), (b) an offence under subsection (6), (7) or (14) of this section or section 28 with respect to hunting, (c) an offence under section 81 or 82 with respect to a hunting licence or limited entry hunting authorization, (12) If a person to whom subsection (2) would otherwise apply does not hold a licence or limited entry hunting authorization or is exempted from holding one, the director may prohibit the person for a period, within any prescribed limits, from doing the thing for which a licence or limited entry hunting authorization would ordinarily be required. (15) The sanctions provided for in this section apply in addition to any fines, penalties, additional fines, prohibitions, directions or requirements that may be imposed under section 84, 84.1, 84.2 or 84.3 and whether or not they are requested or ordered at the time of sentencing for an offence. The following sections of the Offence Act, R.S.B.C. 1996, c. 338 are relevant to this appeal: Definitions 1 proceedings means (a) proceedings in respect of offences, and (b) proceedings in which a justice is authorized by an enactment to make an order;

7 DECISION NO WIL-004(b) Page 7 Order of dismissal 78 (2) A copy of an order of dismissal, certified in accordance with subsection (1), is, without further proof, a bar to any subsequent proceedings against the defendant in respect of the same cause. DISCUSSION AND ANALYSIS 1. Whether the Deputy Director had jurisdiction to suspend or cancel Mr. Barnes s hunting licence under section 24 of the Wildlife Act. Mr. Barnes submits that the Deputy Director s power to suspend a licence pursuant to section 24(2) of the Wildlife Act is a limited one, and that convictions under sections 81 and 82 of the Wildlife Act are exempted by section 24(2)(a) from being a ground for a suspension. Mr. Barnes s convictions on nine charges occurred on July 31, Mr. Barnes submits that at the time he obtained a new hunting licence in September 2003, the Deputy Director possessed no statutory power to cancel or suspend the licence based on convictions under section 81 or section 82 of the Wildlife Act. The amendments made to section 24 of the Wildlife Act in November 2003 do not apply retroactively to change the penalty or punishments to which Mr. Barnes may be subjected due to his previous convictions. Mr. Barnes further submits that the Deputy Director did not rely on any other cause considered sufficient by the Director in support of the suspension and determination of ineligibility, as no notice of any other cause for such an action was provided to Mr. Barnes. Mr. Barnes also submits that section 24(2) of the Wildlife Act authorizes the Deputy Director to order that a person is ineligible to obtain or renew a licence if a licence is cancelled, but has no jurisdiction to order the ineligibility without first making a valid order cancelling the licence. Further, the Deputy Director could not declare a further period of ineligibility under section 24(5) of the Wildlife Act because Mr. Barnes had a valid hunting licence. Mr. Barnes contends that the language of the Deputy Director s decision clearly indicates that he was not simply imposing a further period of ineligibility, but cancelling Mr. Barnes hunting licence The Deputy Director agrees that the November 2003 amendments to section 24 of the Wildlife Act do not apply retroactively to Mr. Barnes, and submits that convictions under sections 81 or 82 of the Wildlife Act were not the basis on which he made his decision regarding Mr. Barnes hunting licence. However, the Deputy Director submits that he was authorized to cancel Mr. Barnes hunting licence under section 24(2) because Mr. Barnes had been convicted under section 75 of the Wildlife Act. The Deputy Director further submits that he had other grounds that were sufficient for a section 24(2) licence cancellation. The Deputy Director also submits that he did not need to depend on a conviction and a section 24(2) cancellation, as he could impose a further period of ineligibility on an already cancelled licence under section 24(5). The Deputy Director submits that there is no requirement that he personally cancel the licence and that cancellation of a licence by any mechanism triggers the Deputy Director s jurisdiction to consider ineligibility. The Deputy Director submits that Mr. Barnes s

8 DECISION NO WIL-004(b) Page 8 hunting licence was cancelled automatically on the date of his sentencing and, therefore, the condition precedent for the Deputy Director s jurisdiction under section 24(5) was triggered. The Deputy Director, therefore, submits that it was within his jurisdiction to impose a period of ineligibility on the hunting licence that had been cancelled at the time of Mr. Barnes January 2, 2002 sentencing. The Deputy Director submits that the legislature intended that the Deputy Director have the authority to impose ineligibility in situations such as these. He submits that section 24(12) of the Wildlife Act indicates such an intent as it allows him to declare a period of ineligibility whether a person has a licence or not. The Deputy Director further submits that there were only 13 days left on Mr. Barnes hunting licence at the time of the cancellation decision, and therefore, the issue of cancellation would have soon been moot and the Deputy Director could order a further period of ineligibility under section 24(5) of the Wildlife Act. Notwithstanding the grounds cited in the notice and decision letters to Mr. Barnes from the Deputy Director, the Panel finds that the Deputy Director has jurisdiction to suspend or cancel Mr. Barnes s hunting licence under section 24(2) of the Wildlife Act as a result of Mr. Barnes conviction under section 75, or for any other cause considered sufficient by the Deputy Director. Therefore, where the Deputy Director has the authority to cancel a licence, he must also have jurisdiction to impose a period of ineligibility under section 24(5). The Panel agrees with the Deputy Director that section 24(5) does not require the Deputy Director to cancel the licence himself, and automatic cancellation as a result of a conviction under the Wildlife Act qualifies as the condition precedent to the Deputy Director s authority to impose ineligibility. Accordingly, the Panel finds that the Deputy Director had jurisdiction to suspend or cancel Mr. Barnes s hunting licence under section 24 of the Wildlife Act. 2. Whether section 78 of the Offence Act or the common law doctrine of abuse of process preclude the Deputy Director from bringing a proceeding against Mr. Barnes to cancel his licence or extend his ineligibility based on dismissed charges or convictions under the Wildlife Act. Mr. Barnes submits that in reaching his decision, the Deputy Director considered charges that were dismissed against Mr. Barnes contrary to section 78 of the Offence Act. Mr. Barnes notes that the Deputy Director specifically referred to illegal guiding, a dismissed charge, in support of the reasons for his decision. Section 78(2) of the Offence Act provides: A copy of an order of dismissal, certified in accordance with subsection (1), is, without further proof, a bar to any subsection proceedings against the defendant in respect of the same cause. Mr. Barnes submits that this provision precludes the Deputy Director from bringing a proceeding against Mr. Barnes to cancel his licence or extend his ineligibility to apply for a new licence based on charges that were dismissed in the Provincial Court.

9 DECISION NO WIL-004(b) Page 9 Mr. Barnes submits that proceedings is broadly defined in the Offence Act and is not limited to proceedings in the Provincial Court in which a justice may make an order. He submits that the definition includes any proceeding in respect of offences, including a proceeding before the Deputy Director to cancel or suspend a hunting licence based on dismissed charges. Mr. Barnes also cites the Supreme Court of Canada s decision in Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, [2003] 3 S.C.R. 77 (hereinafter Toronto), as authority for the principle that the consideration of charges against Mr. Barnes in the Provincial Court precluded the Deputy Director from considering those same charges in adjudicating the issue before him. Mr. Barnes relies on the principle of issue estoppel to support this argument. Mr. Barnes also submits that, according to the doctrine of abuse of process, the dismissal of charges is as binding as convictions are on parties. Mr. Barnes distinguishes the BC Supreme Court s decision in Hansen v. British Columbia (Ministry of Environment and Parks, Fish and Wildlife Branch, Northern Region), [1987] B.C.J. No (hereinafter Hansen), based on its facts. Mr. Barnes argues that the charges against Mr. Hansen had not yet been decided by the Provincial Court when the regional wildlife manager commenced a hearing to decide whether Mr. Hansen s guide outfitter certificate should be revoked. Under those circumstances, the Ministry could consider administrative penalties based on a matter that was before the courts. The Deputy Director submits that the licence action under the Wildlife Act is not a subsequent proceeding(s) against the defendant in respect of the same cause. The Deputy Director argues that the Offence Act is concerned with punishing a person for committing offences, while section 24 of the Wildlife Act is concerned with the removal of privileges. He describes the difference in the following way: punishment places the subject below the status quo, while removing a privilege returns the subject to the status quo from an elevated position of privilege. Further, the Deputy Director submits that there is a different standard of proof for quasi-criminal proceedings than there is for administrative proceedings. Prosecutions for offences under the Wildlife Act do not necessarily answer the question of whether the accused did the things that are alleged to have been done. Rather, they answer the question of whether the Crown has proven, beyond a reasonable doubt, that the accused committed the offence they were charged with. The Deputy Director submits that section 78(2) of the Offence Act protects the accused from double jeopardy concerning the prosecution of offences that have been dismissed, but it says nothing about tribunal proceedings that may involve substantially the same factual context and a different standard of proof, a balance of probabilities. The Deputy Director contends that the dismissal of charges against Mr. Barnes does not answer the question of whether he did certain things or not. The Deputy Director cites Hansen as authority for the proposition that, even if the subject matter of a disciplinary hearing under the Wildlife Act also happens to be the subject of outstanding charges under that Act, a regional manager may proceed to consider the subject matter and withdraw privileges, which have been granted under the Wildlife Act. The Deputy Director submits that this applies to his powers under section 24 of the Wildlife Act.

10 DECISION NO WIL-004(b) Page 10 The Deputy Director submits that Hansen summarizes the law regarding the interaction between criminal proceedings and administrative proceedings, where it states at page 6: Where criminal proceedings have been concluded in the accused s favour, an administrative tribunal is not thereby prevented from imposing serious sanctions based upon essentially the same facts adduced as to be adduced in evidence at a criminal trial. That is, even if a court dismisses charges against a person, the person can still be disciplined based on the same facts. The Deputy Director submits that this approach has previously been adopted by the Board in the context of section 24 of the Wildlife Act, citing Thomas Schreiber v. Deputy Director of Wildlife, 98-WIL-05, September 1, 1998 (hereinafter Schreiber), as an example. That decision was upheld on judicial review by the B.C. Supreme Court, Thomas Schreiber v. Environmental Appeal Board et al. [2001] B.C.S.C. No Further, the Deputy Director submits that Wildlife Act licence action is not a proceeding within the meaning of section 1 of the Offence Act, because it is not a proceeding in respect of an offence, but a proceeding in respect of misconduct, and it is not a proceeding in which a justice is authorized by an enactment to make an order, because a justice has no jurisdiction to make orders under section 24 of the Wildlife Act. The Deputy Director submits that Toronto is only partly relevant to the facts in this case, as the offence proceeding and the administrative proceeding in this case are aimed at two different questions. The standard of proof in the administrative proceeding under section 24 of the Wildlife Act is lower than the standard of proof for a conviction under the Wildlife Act. A person seeking to have charges dismissed in a judicial proceeding need only raise a reasonable doubt, while a person seeking to have the Deputy Director decide against levying an administrative penalty must convince the Deputy Director that the evidence does not show, on a balance of probabilities, that the person committed the act or omission. The Deputy Director submits that licence action may be taken in addition to proceedings concerning offences. Section 24(15) of the Wildlife Act allows for sanctions under section 24 of the Wildlife Act to apply in addition to any sanctions imposed under sections 84, 84.1, 84.2 or 84.3 and whether or not they are requested or ordered at the time of sentencing for an offence. The Panel finds that the Deputy Director considered the dismissed charges in reaching his decision regarding Mr. Barnes hunting licence. The Panel also finds that section 78(2) of the Offence Act does not preclude the Deputy Director from considering charges that have been dismissed in the provincial court. The standard of proof in administrative hearings under the Wildlife Act, i.e. on the balance of probabilities, is different, and far lower than the standard required in quasi-criminal proceedings under the Wildlife Act, where proof beyond a reasonable doubt is the threshold. Furthermore, the Panel finds that an administrative proceeding under section 24 of the Wildlife Act does not constitute a proceeding under the Offence Act because the administrative proceeding deals with misconduct associated with the privilege of holding a hunting licence, not with an offence.

11 DECISION NO WIL-004(b) Page 11 Additionally, the Panel finds that the Toronto case can be distinguished from the present appeal based on the facts. In Toronto, a person was charged and convicted of sexually assaulting a boy who was under his supervision in the course of the boy s employment. The person s employer dismissed him shortly after his conviction. His conviction was upheld on appeal. Meanwhile, he filed a grievance regarding his dismissal. At an arbitration hearing, he testified that he had never sexually assaulted the boy. The arbitrator ruled that the criminal conviction was admissible evidence, but it was inconclusive as to whether the person had sexually assaulted the boy. The arbitrator held the presumption raised by the criminal conviction had been rebutted by the person s testimony at the arbitration, and that the person had been dismissed without just cause. The Supreme Court of Canada found that the person s union was not entitled, at common law or under statute, to relitigate the issue that had been decided in the criminal proceedings, and that the facts in that case showed a blatant abuse of process. Furthermore, the arbitrator was required, as a matter of law, to give full effect to the conviction, and he erred in law by failing to do so. The Court stated as follows at paragraphs 54 to 56: Casting doubt over the validity of a criminal conviction is a very serious matter. Inevitably in a case such as this one, the conclusion of the arbitrator has precisely that effect, whether this was intended or not the facts in this appeal point to the blatant abuse of process that results when relitigation of this sort is permitted. The grievor was convicted in a criminal court and he exhausted all his avenues of appeal. In law, his conviction must stand, with all its consequent legal effects. In contrast, in the present appeal, no party is challenging Mr. Barnes convictions. In addition, the Provincial Court s findings on the other charges are based on an entirely different and much higher standard of proof than is required in administrative proceedings. The fact the a person may be found to have committed a contravention in an administrative proceeding, despite having been acquitted of a criminal charge based on the same set of facts, does not amount to an abuse of process. No doubt is cast on the validity of the Provincial Court s conclusions, because the standard of proof was much higher. The Deputy Director was not attempting to relitigate issues that were decided in the criminal proceedings, i.e. whether there is evidence to establish, beyond a reasonable doubt, that Mr. Barnes committed certain acts or omissions. Rather, the issue for the Deputy Director was whether the evidence established, on a balance of probabilities, sufficient grounds to warrant a suspension or cancellation of Mr. Barnes licence. A decision under section 24 regarding whether a suspension or cancellation should be imposed does not require the person exercising authority under that section to consider the validity of the Court s conclusions, and a decision to impose, or not impose, a penalty under section 24 does not cast doubt on the Court s conclusions.

12 DECISION NO WIL-004(b) Page 12 Moreover, in contrast to the arbitrator in Toronto, the Deputy Director is expressly entitled under statute to bring disciplinary proceedings in addition to any court proceedings related to the same set of facts, and to levy an administrative penalty in addition to any penalty imposed as a result of convictions for offences under the Wildlife Act. The Wildlife Act expressly contemplates that certain acts or omissions may result in both quasi-criminal and administrative penalties. Section 24(15) of the Wildlife Act expressly states that sanctions under section 24 apply in addition to any penalties imposed under the offence provisions in sections 84 to 84.3 of that Act. This clearly indicates that the legislature intended the Deputy Director to have the discretion to take licence action notwithstanding the outcome of any criminal proceedings based on the same set of facts. Based on the facts in this appeal, and given that the Wildlife Act expressly contemplates that a person may face both administrative penalties and quasicriminal penalties for certain acts or omissions, the Panel finds that the proceedings against Mr. Barnes under section 24 of the Wildlife Act are not an abuse of process. Accordingly, the Panel finds that neither section 78(2) of the Offence Act nor the common law doctrines of abuse of process or issue estoppel preclude the Deputy Director from imposing a suspension or cancellation of Mr. Barnes licence based on criminal charges that have either been upheld or dismissed in the courts. Further, the Deputy Director is not precluded from taking licence action based solely on convictions for criminal charges that have not been exempted for that purpose under the Act. 3. Whether Mr. Barnes received adequate notice of the matters that the Deputy Director considered. Under section 24(2) of the Wildlife Act, the Deputy Director is required to provide a person with an opportunity to be heard, and after having done so, may exercise his powers under that section to levy an administrative penalty if the person has a conviction under certain sections of the Wildlife Act or for any other cause considered sufficient by the Deputy Director. Mr. Barnes submits that the notice provided by the Deputy Director advised that he proposed to consider a further period of ineligibility as a result of Mr. Barnes s conviction under section 82(1)(b) of the Wildlife Act for making a false statement on a licence issued by him. Mr. Barnes notes that, not only was he not convicted of any charges under section 82(1)(b), he was not even charged under that section. Mr. Barnes also notes that the notice of the Deputy Director s decision of March 23, 2005 specifically refers to the Deputy Director having considered the charges and surrounding circumstances for making a false statement on a licence issued by [the person who committed the offence]. Mr. Barnes submits that this statement clearly shows that the reference to section 82(1)(b) was not simply a clerical or numerical error, and that the Deputy Director based his decision on a contravention that never occurred. Mr. Barnes also submits that the Deputy Director s decision goes far beyond considering the grounds set out in the notice. Mr. Barnes contends that, although the Deputy Director gave notice that he proposed to consider the conviction under section 82(1)(b) as the ground for considering a further period of ineligibility, the

13 DECISION NO WIL-004(b) Page 13 decision makes it clear that all 35 counts were considered as though they had been proven. Mr. Barnes submits that he was not given appropriate notice of the grounds to be considered by the Deputy Director, and therefore, he was not given an opportunity to be heard under section 24(2) of the Wildlife Act. Further, Mr. Barnes submits that he was not advised that the Deputy Director intended to consider cancelling the hunting licence, as the notice referred to only extending the period of ineligibility for applying to obtain or renew a hunting licence. Mr. Barnes submits that the Deputy Director s decision should be set aside as a result of improper notice. The Deputy Director concedes that the notice letter could have been more accurately drafted, but submits that the 12-page letter should have put Mr. Barnes on specific notice that his hunting licence privileges were in significant jeopardy. The Deputy Director submits that the appearance of section 82(1)(b) on the notice letter was a clerical error only, and that the Deputy Director did not make his decision based on a mistaken belief that Mr. Barnes had been convicted of that charge. The Deputy Director also submits that the word incident in the notice letter should have been these incidents, and was meant to refer to all the actions and documents referred to in the letter, not only a conviction under section 82(1)(b). The Panel has reviewed the evidence and finds that the notice letter was deficient. The inaccuracies were not simply a matter of mistyping the section number, as the description of the charge was also erroneous. It is unclear from the notice whether the grounds for the Deputy Director s decision would be based on convictions or charges. The result of the inaccurate and misleading notice letter is that Mr. Barnes was not provided with a fair opportunity to meet the case against him. Accordingly, the Panel finds that Mr. Barnes did not receive fair notice of the matters to be considered by the Deputy Director. 4. What are the consequences for this proceeding of the Director s failure to consider Mr. Barnes written submissions? Mr. Barnes submits that the Deputy Director did not consider his submission, although it was provided. Mr. Barnes provided affidavit evidence that the submission was sent by registered mail to the Deputy Director. According to section 24(2) of the Wildlife Act, the Deputy Director s jurisdiction to suspend or cancel Mr. Barnes licence arises only after providing an opportunity to be heard. Mr. Barnes submits that this condition precedent for the exercise of the Deputy Director s power to suspend or cancel a licence was not fulfilled, rendering the Deputy Director s decision null and void. Mr. Barnes further submits that the Deputy Director s subsequent statement that, had he considered Mr. Barnes submission, he would not have changed his decision indicates bias on the part of the Deputy Director. Mr. Barnes submits that it would, therefore, be inappropriate to send the matter back to the Deputy Director for reconsideration.

14 DECISION NO WIL-004(b) Page 14 The Deputy Director concedes that Mr. Barnes submission was sent to him, but he maintains that he never saw it or knew of its existence. The Deputy Director assumes that a bureaucratic mishap is responsible for the situation. The Deputy Director also submits that considering the submission would not have made a difference in the Deputy Director s decision. The Deputy Director submits that after reading Mr. Barnes s submissions, his decision would remain the same, citing the fact that Mr. Barnes s submission did not deny any of the offences he was accused of. Finally, the Deputy Director submits that the issue of the failure to consider Mr. Barnes submission can be cured by the Board s consideration of the submission at a hearing on the merits of the appeal, effectively giving Mr. Barnes a second chance to challenge the Deputy Director s decision. The Panel finds that Mr. Barnes did deliver his submission to the Deputy Director, and the Deputy Director failed to consider Mr. Barnes submission when making his decision. The Panel further finds that no weight should be given to the statement by the Deputy Director that Mr. Barnes submission would not have changed his decision if he had read it prior to making his decision, because the Deputy Director had already formed an opinion prior to seeing the submission. For the same reason, the Panel finds that the Deputy Director is no longer in a position to reconsider the matter by taking Mr. Barnes submission into account. The Panel notes that the test for bias is set out in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at page 394: [w]hat would an informed person, viewing the matter realistically and practically and having thought the matter through conclude. Would he think that it is more likely than not that [the decision-maker], whether or not unconsciously, would not decide fairly. On review of these submissions, the Panel finds that an informed person, viewing the matter realistically and practically, would conclude that the Deputy Director would not decide a second hearing of Mr. Barnes case with an open mind. The fact that the Deputy Director has already stated that he would not change his earlier decision, even if he had considered Mr. Barnes submission, leads the Panel to conclude that there would be a reasonable apprehension of bias if this matter were sent back to the Deputy Director for re-consideration. In addition, the Panel notes that the reply submission from Mr. Barnes did not address all of the charges and convictions that were considered by the Deputy Director in reaching his decision. The reason that the reply submission was deficient was that the Deputy Director s notification letter was misleading. In spite of this, the Deputy Director maintains that the submission from Mr. Barnes would not alter his opinion or decision. Given that Mr. Barnes was never provided with a fair opportunity to be heard in the first instance, and that there would be a reasonable apprehension of bias if this matter were sent back to the Deputy Director for re-consideration, the Panel finds that the appropriate remedy in these circumstances is to remit the matter to the Director, or a different delegate of the Director, for consideration.

15 DECISION NO WIL-004(b) Page 15 DECISION In making this decision, the Panel has considered all the evidence and arguments presented at the hearing, whether or not they have been specifically reiterated here. For the reasons set out above, the Panel finds that the Deputy Director does have jurisdiction to cancel Mr. Barnes s hunting licence and may consider the facts related to the charges against Mr. Barnes that were dismissed by the provincial court. However, the Panel also finds that the Deputy Director did not provide Mr. Barnes appropriate notice, did not consider Mr. Barnes s submissions when reaching his decision, and there is a reasonable apprehension of bias on the part of the Deputy Director in this case. Therefore, the Panel refers this matter to the Director or an alternative designate of the Director for a full hearing on its merits. In that regard, Mr. Barnes should be provided with a new notice that includes the full grounds and specific licence action contemplated. In the meantime, the March 23, 2005 licence cancellation and declaration of ineligibility are set aside as is the requirement that Mr. Barnes successfully complete the Conservation and Recreation Education program prior to applying for a new hunting licence. Accordingly, the appeal is allowed in part. Alan Andison Alan Andison, Chair Environmental Appeal Board October 3, 2005