ONTARIO COURT OF JUSTICE
BETWEEN:
Ministry of Natural Resources and Forestry
— AND —
Francisco P. GOMES
Before Justice of the Peace K Kellough
Heard on January 9, January 23, March 18, April 4, 2025
Reasons for Judgment read on the Record on May 5, 2025; Released May 12, 2025
A. M. Wade ................................................................................ counsel for the prosecution
The defendant F. P. Gomes ................................................................... on his own behalf
JUSTICE OF THE PEACE K. KELLOUGH:
Introduction
1On August 31, 2023 the Ministry of Natural Resources and Forestry (hereinafter the Ministry) laid a Part III information against Francisco P. Gomes charging him with 4 counts under the Fish and Wildlife Conservation Act, 1997, S.O. 1997, c. 41 as amended (hereinafter FWCA). The allegations stem from November 10, 2022 in the Township of Southgate in Grey County. The sections Mr. Gomes is alleged to have violated are:
16 (1) A person who is in possession of a firearm for the purpose of hunting, trapping or fishing shall not discharge or handle the firearm, or cause it to be discharged or handled, without due care and attention or without reasonable consideration for people or property. 1997, c. 41, s. 16 (1); 2017, c. 2, Sched. 14, s. 6 (1);
17 (1) A person who is in an area usually inhabited by wildlife or who is on the way to or from an area usually inhabited by wildlife shall not,
(d) in a part of Ontario prescribed by the regulations, have a loaded firearm in, or discharge a firearm in or across, a right of way for public vehicular traffic;
36 (1) A hunter or trapper who kills game wildlife other than a furbearing mammal shall not abandon it if its flesh may become unsuitable for human consumption. 2009, c. 33, Sched. 22, s. 2 (18); and,
- (1) The holder of a hunting or trapping licence shall wear a garment in hunter orange and a head cover in hunter orange while hunting wildlife, O. Reg. 665/98, s. 26 (1); O. Reg. 529/10, s. 6; O. Reg. 49/11, s. 3 (1).1
2At the commencement of trial Mr. Gomes entered a plea of not-guilty on each count. Mr. Gomes attended virtually, was self-represented and assisted by a Portuguese interpreter throughout the trial.
3The prosecution called two witnesses: Conservation Officer Kevin Rowsell and an eyewitness, Mr. Scott Harper. Mr. Gomes did not testify, nor did he call any defence evidence. The prosecution also relied on a cautioned statement Mr. Gomes gave to Officer Rowsell. The trial was set for ½ day. The prosecution evidence took 1.5 days not including submissions.
4At approximately noon on November 10, 2022, Mr. Harper saw a black Ford F150 truck drive by his property slowly. As he was walking down his driveway to investigate, he heard a gunshot. When he got to the road, he saw someone put something back into the truck, then get back in the vehicle and the truck drove away. He felt that someone in the vehicle had fired a gun, so he called the Ontario Provincial Police, who in turn notified the Ministry. The truck passed by Mr. Harper’s property a total of three times that day. On the third pass, Mr. Harper used his cell phone to make a video recording of the vehicle as it approached and then passed him.
5The video recording was provided to conservation officers when they attended the scene and investigated later that day. Officers located a deceased antlerless deer laying approximately 4 meters into the field which they felt had been shot from the road. The video recording captured the license plate number of the truck, and on May 5, 2023, officers attended at Mr. Gomes home in Toronto and conducted an interview with him. During a cautioned statement Mr. Gomes identified the truck as his.
6The primary purpose of the FWCA is the conservation and use of fish and wildlife resources in Ontario. The Act regulates hunting, trapping, fishing and related activities and ensures safe hunting practices.
7The issues the court must consider in this case are as follows:
Issue 1: Was Mr. Gomes present in the vicinity of Sideroad 15, in the Township of Southgate in Grey County on November 10, 2022?
Issue 2: Did Mr. Gomes, for the purpose of hunting, discharge a firearm at the location on the date in question?
Issue 3: Did Mr. Gomes, for the purpose of hunting, discharge a firearm without due care and attention?
Issue 4: Did Mr. Gomes, for the purpose of hunting, discharge a firearm in the traveled portion of a right of way for public vehicular traffic?
Issue 5: Following this, did Mr. Gomes abandon the flesh of a deer suitable for human consumption?
8The Ministry must prove the charges against the defendant beyond a reasonable doubt. The charges against Mr. Gomes are strict liability offences and the defences of due diligence and mistake of fact are available to him.
Issue 1: Was Mr. Gomes present in the vicinity of Sideroad 15, in the Township of Southgate in Grey County on November 10, 2022?
9Before anything else can be considered the court must accept the evidence of the prosecution that the defendant was present in the vicinity on the date and time in question. To prove this the prosecution relies upon the eye-witness testimony of Mr. Harper and the cautioned statement of Mr. Gomes.
10Mr. Harper resides in the immediate vicinity on Sideroad 15. He advised the court that on November 10, 2022, he was outside in his driveway and observed a black Ford F150 truck traveling southbound on the sideroad. He described the truck as applying its breaks and slowly traveling past the end of his driveway. He saw the truck “creeping my property line and along my driveway” and advised this caught his attention. Mr. Harper proceeded to walk down his driveway to see what the truck was doing. He told the court that when he was halfway down his driveway, he heard a gunshot.
11Once at the end of the driveway, Mr. Harper observed the truck and an individual standing beside it approximately 250 meters away. He told the court he made eye contact with the person, and the person seemed to be “shoving something into the truck. They got in the truck and proceeded southbound.” He observed the truck continue southbound to the 14th Sideroad, where the truck turned around and pulled over on the side of the road. He thought the truck stayed there 4 to 5 min before slowly driving northbound toward him. He described the truck speeding up as it approached his driveway, and then driving past him at a high rate of speed. The truck proceeded northbound to Grey Road 9 and then turned right.
12Mr. Harper thought the truck would likely drive around the block and then make another pass northbound along Sideroad 15. He retrieved his cell phone from the garage and waited for the truck to return, which it did. Mr. Harper saw the truck slowly proceed north towards his position. He told the court that when the truck got close to him it sped up to a high rate of speed and passed him. Mr. Harper suspected that the driver saw him recording with the cell phone, and he thought that was why they sped off.
13Mr. Harper advised that he only saw the silhouette of one person in the vehicle. Despite telling the court that he had made eye contact with the person outside the truck, he later advised that he was too far away to see the person’s face. When asked what gender the person was, Mr. Harper replied that they were “definitely a short stocky male”. Mr. Harper was not asked and did not advise whether it was the front or back seat or which side of the truck the person got into.
14The court had an opportunity to view the video recording made by Mr. Harper. It is notable that when the vehicle passed him, Mr. Harper yelled “fuck you, asshole”. Mr. Harper testified remotely, and he appeared to be angry throughout his testimony with his anger intensifying during a brief cross-examination by Mr. Gomes.
15On viewing the video, the court noted that the truck had tinted windows which made it difficult to see inside the vehicle, but it was possible to see the silhouette of a person as the truck passed. It is not possible to conclude that there was only one person in the vehicle, rather, one person was visible.
16Officer Rowsell advised the court that he was able to zoom in on the video of the truck and view the license plate. This allowed them to look up the license plate and determine it had been issued to Mr. Gomes and was presently attached to a black 2013 Ford truck with a crew cab. On May 3, 2023, Officer Rowsell reached out to Mr. Gomes to arrange for an interview. He met with him in person on May 4, and made arrangement to conduct the interview on May 5, 2023. It was the request of Mr. Gomes that the interview be conducted on May 5 as his wife would be home and could assist him if he didn’t understand something.
17A voluntariness voir dire was conducted in relation to the cautioned statement. While the statement was ruled voluntary the court noted concern with respect to the lack of use of an approved or accredited interpreter. No reason was provided as to why an approved or accredited interpreter was not used. It was clear that officers would have been aware of the need for an interpreter given their interaction with Mr. Gomes and his request to have his wife present. Instead, Mr. Gomes’ wife Maria Gomes assisted the officers by interpreting for her husband. The statement that followed was difficult to follow, Mr. Gomes spoke in both English and Portuguese at various points, sometimes waiting for interpretation and other times not. The overall reliability of the statement is negatively impacted by this lack of appropriate interpretation. However, at one point during the statement Mr. Gomes was shown a still photo of the truck taken from Mr. Harper’s video, and he unequivocally identified it as his truck.
18During the statement Officer Rowsell questioned Mr. Gomes extensively as to who had access to the truck and who else might be operating it. Mr. Gomes noted that he is usually the one operating his truck, but occasionally his hunting partner Deimos will drive back to Brampton when he is tired, or his wife will drive if he has consumed alcohol. During the statement Mr. Gomes noted that he was driving to Dundalk that November on highway 15. While the date November 10 was put to him, he neither agreed nor disagreed with the date. The court does accept that when Mr. Gomes said highway 15, he was referring to Sideroad 15.
19Based on the video evidence which identified Mr. Gomes’ truck, and the admissions noted in his cautioned statement the court accepts that Mr. Gomes and his truck were present in the vicinity of Sideroad 15 on November 10, 2022.
Issue 2: Did Mr. Gomes, for the purpose of hunting, discharge a firearm at the location on the date in question?
20To consider the second issue, the court must look at the evidence of Officer Rowsell, Mr. Harper’s testimony, and Mr. Gomes’ statement.
21Early in his testimony Officer Rowsell advised that during his time at the scene, he noted that Sideroad 15 was a busy road. Given this, he told the court that he thought it possible that evidence could have been thrown from the road or damaged by other vehicles; accordingly, he started his search by looking along the roadside, in the gravel and grassy parts of the diches nearby.
22When he didn’t find anything by the roadside, Officer Rowsell moved on toward the back of the field next to the road. He told the court that there was another hunter in a treestand2 in the back of the field. Not wanting to interfere with the hunter the officer left a business card for the hunter on the nearby ATV and requested that they call him. The court was not advised how far away this hunter was from the area where Mr. Gomes’ vehicle was alleged to have stopped. There was no indication that the hunter followed up with Officer Rowsell, nor did Officer Rowsell follow up with the hunter. At the very least, it seems that this was a potential witness who was never questioned.
23Officer Rowsell moved back toward Mr. Harper’s driveway to continue the search while moving south. He located the deer approximately 4 meters into the field. The ditch was steep and covered in long grass. Officer Rowsell didn’t see any indication of someone having moved through the grass toward the deer. He walked through the grass toward the deer and back, and his path was clearly visible. This led Officer Rowsell to conclude the deer had been shot from the road.
24No fewer than fifty photographs of the deer and scene were entered into evidence. Duplicate, zoomed in photographs were also provided to the court. Officer Rowsell noted that the deer had broken bones on one leg that seemed consistent with it having been struck by a car prior to being shot. Bullet entry and exit wounds were also visible. These showed the entry wound on the left side of the deer’s spine above the shoulder, with the exit wound on the right side of the spine.
25No casings or bullets were ever recovered.
26The following day officers returned to the scene to continue the investigation. Officer Rowsell located a hole in a small tree and a broken twig on another small tree which he felt had been caused by a bullet. Using the two site indicators along with the location of where the deer was recovered, the officers were able to utilize a string line to determine trajectory. The court was advised that when held tight, the string lined up with the middle of the road at a height of 58 inches (approximate shoulder height of the average man), or 43 inches at the gravel shoulder (approximate shoulder height if kneeling). The deer was located 36 meters from the middle of the road and 25 meters from the gravel shoulder of the road.
27Turning to Mr. Harper’s evidence on the discharge of the firearm, it is very clear that he heard a gunshot, but did not see who fired the gun nor did he see a gun. There is no evidence before the court as to how long his driveway is, or how far away Mr. Harper was from the road when he first saw the black truck as he was not asked these questions. Similarly, Mr. Harper was never asked about the presence or absence of other traffic that day nor was he asked about the hunter in the treestand. As noted, Mr. Harper advised that he saw someone shoving something into the black truck, but he was not asked to describe the item. Finally, Mr. Harper was not asked any questions about the sound of the gunshot in terms of directionality or how far away it might have been, etc.
28While Mr. Gomes did not testify the court does have the cautioned statement he provided to the investigating officers. When asked about the truck and whether he was on Sideroad 15 on November 10, 2022, Mr. Gomes says the following:
I have no shot for the deer, for sure.
No, no, no shot this truck, for sure.
Okay, can you give me the video? I know for sure no shot. This is my truck; nobody shot inside of my truck. Okay? For sure, nobody shot, my truck.
(wife translating) He’s never shot from inside the truck or…
I think – never have a shotgun, never. I leave the shotgun inside the truck. Every time.
Okay, okay. Never, never was a shotgun – was a shotgun pulled out.
Officer: The deer was shot right in this field right here. … Right beside the ditch. Mr. Gomes: No. It’s not my truck.
(wife translating) He says it wasn’t from his truck.
Officer: So, you never pulled the trigger on your gun last year to shoot a deer? Mr. Gomes: No. (wife translating) No, that isn’t true. Mr. Gomes: No. Mrs. Gomes: It’s been years since you killed a deer. Officer: But, you’re also saying… Mr. Gomes: Eight years. … Seven years I don’t kill nothing.
29The court is mindful that the repeated denials of Mr. Gomes are untested by cross-examination.
30Officer Rowsell’s testimony was relatively straightforward, and the court doesn’t have any credibility concerns with what was said in evidence. However, two things stand out from his evidence that give the court pause: that this was a busy road, and there was another hunter and possible witness in the area who was never interviewed. The officer volunteered the information about the road being busy, and he was never asked any further questions about this by either party.
31Mr. Harper seemed to be unusually angry when he testified. Apart from this the court was not left with credibility concerns relating to his evidence. Unfortunately, areas that were not covered with Mr. Harper leave the court with questions, and ultimately gaps in the evidence.
32While Mr. Gomes did not testify during the trial, the court did have the benefit of his cautioned statement. During the statement Mr. Gomes emphatically denied shooting a deer on the day in question.
33The court is suspicious of Mr. Gomes’ behavior on November 10, 2022. However, the court is not able to find, beyond a reasonable doubt, that Mr. Gomes discharged a firearm that day. There are too many remaining variables or unanswered questions. Certainly, the prosecution is not required to answer all the court’s questions in any given case; they need not prove the case beyond any doubt. In this case the lingering questions raise a reasonable doubt as to whether Mr. Gomes discharged a firearm.
Issue 3: Did Mr. Gomes, for the purpose of hunting, discharge a firearm without due care and attention?
34As I am unable to conclude beyond a reasonable doubt that Mr. Gomes discharged a firearm for any purpose, I am similarly unable to find that he discharged a firearm without due care and attention.
Issue 4: Did Mr. Gomes, for the purpose of hunting, discharge a firearm in the traveled portion of a right of way for public vehicular traffic?
35As I am unable to conclude beyond a reasonable doubt that Mr. Gomes discharged a firearm for any purpose, I am similarly unable to find that he discharged a firearm in the traveled portion of a right of way for public vehicular traffic.
36The prosecution noted that the court should rely on s. 65(2) of Ontario Regulation 665/98 when assessing the alleged offence contrary to s. 17(1)(d) of the FWCA. The information sets out count 2 without reference to the regulation, and the regulation appears to be a separate charge in and of itself.
Issue 5: Following this, did Mr. Gomes abandon the flesh of a deer suitable for human consumption?
37Once again, as I am unable to conclude beyond a reasonable doubt that Mr. Gomes discharged a firearm for any purpose, I am similarly unable to find that he killed the deer in question or abandoned the flesh of the deer. There was no evidence before the court as to the condition of the flesh of the deer and whether it was in fact suitable for human consumption.
Conclusion
38The prosecution has not proven the charges beyond a reasonable doubt. Accordingly, Mr. Gomes is discharged of all counts.
Read on the Record: May 5, 2025 Released: May 12, 2025
Signed: Justice of the Peace K. Kellough
Footnotes
- At the conclusion of his submissions, Mr. Wade for the prosecution conceded that the court had not heard evidence in support of this count and invited the court to dismiss the charge accordingly.
- A treestand is a platform, either open or enclosed, secured to a tree to elevate hunters and provide a better vantage point for observing and hunting. These platforms are designed to enhance visibility and potentially improve a hunter's chances of spotting and taking game animals.