Court File and Parties

Court File No.: Cochrane 3893 Date: 2016-02-22 Ontario Court of Justice

Between: Her Majesty the Queen (Ministry of Natural Resources and Forestry)

— And —

Mr. John G. J. Blais and Mr. Gilles M. Trottier

Before: Justice of the Peace S.-É. Bourbonnais

Heard on: May 20-21 and October 29-30, 2015

Reasons for Judgment released on: February 22, 2016

Counsel:

• Ms. Tania Monteiro for the prosecution
• Mr. Stephen Beaudoin for the defendant Mr. John G. J. Blais
• Mr. Pierre Dumais for the defendant Mr. Gilles M. Trottier

JUSTICE OF THE PEACE BOURBONNAIS:

The Incident

[1] It was a beautiful clear evening out on Meadow Creek on September 13, 2013. On his way back to the boat launch, after he was finished hunting, Mackenzie Watson slowed his boat right down so that he and his stepson Seth Morin, who was just seven years old at the time, could enjoy this magical moment when a huge flock of geese flew right over their heads and landed not even five feet from their boat. However, no sooner had Mr. Watson finished saying: "Take a look at that Seth. You don't get closer than this", they both found themselves in the line of fire of two other hunters, namely John Blais and Gilles Trottier.

[2] Seth, who was sitting in the bow of the boat yelled out as he was struck in the face. As for Mackenzie Watson, the hand he used to cover his head and face was grazed by stray pellets that showered their tiny vessel.

The Charges

[3] Following an investigation, conducted initially by the Ontario Provincial Police ("OPP") and then taken over by the Ministry of Natural Resources ("MNR"), John Blais and Gilles Trottier were both charged pursuant to subsection 16(1) of the Fish and Wildlife Conservation Act ("FWCA") of unlawfully discharging a firearm without due care and attention for people or property. They were also both charged of unlawfully hunting wildlife during the period from half an hour after sunset to half an hour before sunrise, contrary to clause 20(1)(a) of the FWCA.

[4] All parties agreed that the following elements: date, identity, location and jurisdiction of the offences were admitted; therefore not in dispute.

[5] Further, in the course of this trial, the MNR prosecutor formally requested the court to dismiss the second charge of hunting wildlife during the period from half an hour after sunset to half an hour before sunrise against both defendants. Consequently, a finding of not-guilty was entered on count #2 for both defendants and the charge dismissed accordingly by the court.

Litigious Issue

[6] Therefore, the only issue for this court is: Did John Blais and Gilles Trottier unlawfully discharge a firearm without due care and attention for people or property? Succinctly, did they hunt carelessly on the evening in question?

Evidence

[7] Five witnesses testified for the prosecution; namely OPP Provincial Constables Cheryl Kennedy and Dan Twinen, MNR Conservation Officers Daryl Smith and Carl Alexander, as well as civilian witness, Mackenzie Watson. Further, as part of the evidence, the MNR prosecutor filed numerous documents/material (maps, photos, reports, video statements . . .) which were received and marked as exhibits by the court.

Evidence of Shooting

[8] Following the shooting, Mackenzie Watson and Seth Morin attended the local hospital in Iroquois Falls. Further, Seth had to be taken to the Sudbury hospital afterwards to have the pellet lodged in his face removed by a plastic surgeon. As part of the prosecution's evidence, a photograph of the pellet extracted from Seth's right cheek which was then placed in a hospital's medicine container, was filed with the court.

[9] Further, following an inspection of Mr. Watson's boat on September 17, 2013, Officer Smith testified that using a magnet, he recovered from the bottom of the boat, at the front end, four more damaged pellets. Photos of these pellets were filed with the court. Furthermore, photos of Mr. Watson's damaged boat consisting of about 12 strike marks (i.e. indentations and paint pop off) to the front right portion in a 20 inch diameter area were also filed as part of the prosecution evidence.

[10] Officer Smith also testified that on September 17, 2013 he recovered a total of eight fired shot shells that were floating in the water, trapped in weeds on site. Based on the location where these shells were found, close to shore, Officer Smith indicated that it appeared that the shooters had been firing from the point located in a bay. In cross-examination, though, Officer Smith confirmed that we cannot associate any of these spent shells with either of the weapons that were seized from Mr. Trottier and Mr. Blais. Officer Smith also admitted that the type of shells found are commonly used and could have come from any hunters. Further, Officer Smith acknowledged during cross-examination that within those four days between the date of the shooting and when he attended Meadow Creek with Mr. Watson on September 17th, the current could have moved the shells from other locations before they got stuck in the weeds at that particular location. As such, Officer Smith confirmed that the shells are of no specific identification value.

Time of Shooting

[11] As per Exhibit "2", the National Research Council's Official Time of Setting of the Sun in Cochrane for September 13, 2013, while still in daylight saving time period, was 19H41. Therefore, in accordance with the FWCA, the last legal shooting time was 20H11 that day. According to Officer Smith, who was the main designated investigating Officer for the MNR, based on what Mackenzie Watson told him, the defendants shot at Mr. Watson and Seth at approximately 20H30; thus, after the allowable shooting time. Whereas John Blais states that they still had seven minutes of permissible hunting time when they took their last shot. As for the second defendant, Gilles Trottier, he relied on his hunting companion who had advised him at the time that they still had seven minutes of legal shooting time.

Location of All Parties

[12] On the issue of the exact location of the defendants when they fired their shots, both Gilles Trottier and John Blais stated during their official video-taped interview with the MNR, which was viewed in Court, and filed as exhibits, that they never left their boat when hunting.

[13] Whereas, Mackenzie Watson, when he went back to the site four days after the shooting, he indicated to Officer Smith, that he thought John Blais and Gilles Trottier were firing from the point when he and his son got shot at. When being cross-examined, though, Mr. Watson admitted that he was really not sure whether Blais and Trottier were shooting from their boat or the point.

[14] As for Officer Smith, when questioned as to the location of the shooters, he indicated that he was unable to conclude if the shooters were on shore or in their boat. He admitted that on photos he took of the area, an obvious indentation where the cattails were pressed down was a good indication that a boat had been anchored at that specific location some 15 to 20 meters away from the point where initially he assumed, based on Mr. Watson's indications, the shooters were.

Field of Vision of the Shooters

[15] Despite the fact that the two defendants always maintained that they never left their boat when shooting that night, not one single picture was taken by Officer Smith that would have given the court the field of vision of someone shooting from the boat at the location where the cattails were pressed down.

[16] Further, Officer Smith admitted that Mr. Watson's boat could have been some 50 yards (or 150 feet) to the left of where Mr. Trottier was shooting, from his boat. Furthermore, Officer Smith confirmed that the point is more elevated than if one is shooting from the boat. As such, if one was shooting from the boat as opposed to the point, at that particular location, Officer Smith recognized that the field of vision would be different, since the left side vision would partly be obstructed by the point.

[17] Moreover, based on Officer Smith's testimony, Mr. Watson was not able to indicate specifically where he and Seth were either when they were shot at. Therefore, Officer Smith admitted that the GPS readings which were used to create a map filed with the court, showing who was where at the time of the incident, were mere approximation solely based on what Mackenzie Watson could recall and indicated to him when the two went back to Meadow Creek four days after the event.

Range of Shooting

[18] According to Officer Smith, the range of the shotguns seized from Mr. Blais and Mr. Trottier is approximately 40 yards (36.5 meters). Officer Smith also indicated that based on the rough estimates as to who was where at the time of the shooting, the distance between the two parties would have been approximately 35 meters (38 yards). In cross-examination and re-examination he then admitted that, if Mr. Blais and Mr. Trottier were shooting from their boat, as opposed to the point, the distance between the parties could have been as far as 50 meters (54.7 yards).

Sounds of Motor Boat

[19] There is controversial evidence with respect to the sound of Mr. Watson's motor boat. Both Mr. Blais and Mr. Trottier during their interview with the MNR officials said they heard it earlier in the evening but not just before the accident. Otherwise they would obviously never have taken shots towards Mr. Watson and his son they said. Whereas Mr. Watson testified that his little boat engine is quite loud since it is an older model. However, Mr. Watson also admitted, that since he had reduced the speed right down, and was just idling at the time, the sound of his little 2-horsepower boat motor would not have been loud. Further, it is not clear whether his boat engine had not altogether stopped functioning before the shooting.

Assessment of Evidence and Credibility of Witnesses

[20] Messrs. John Blais and Gilles Trottier, both readily cooperated with the investigation. They voluntarily provided statements to OPP officers immediately following the accident and later on during their formal taped interview conducted by MNR officials. Listening to their individual testimony, I found them to be credible and consistent throughout. Their testimony is also consistent with the testimony of OPP Constables Kennedy and Twinen.

[21] Listening to the testimony of Mackenzie Watson, he strikes me as a good natured man, who thinks of the wellbeing of others before his own. This is consistent with him not wanting to disturb other hunters' decoy, not wanting to get in their way, hence manoeuvring as best he could around the Blais and Trottier's decoys, and yes going as far as slowing right down his boat engine with a view to stay out of their way and permit the Blais/Trottier duo to take their last shots of the evening.

[22] Mr. Watson denies this but admits that he made a mistake by idling. He also disclosed that his motor shut off or stalled. Although it was not one hundred percent clear if this happened just before being hit or as he was being hit. When Mr. Watson was testifying though, I got the net impression that he turned off his own boat engine in order not to scare the geese and appreciate that special moment with Seth when the birds landed so close to them. This is also consistent with his comment to the effect that geese are scared of movement. Hence he has trained his children to sit still when out hunting with him. His testimony seemed to be pointing in the direction that he wanted to appreciate the birds close by, hence turned off his engine so as not to scare them off.

[23] Whether Mr. Watson turned off his own boat engine altogether to appreciate the birds in close proximity or his boat motor stalled because he had slowed down so much, or because it simply got caught in the weeds when they were moving at such a slow speed is immaterial. The fact remains that he unwittingly placed himself, or the current pushed and positioned this tiny boat and occupants, in the line of fire of the defendants just as John Blais and Gilles Trottier were firing away.

[24] Although by his actions Mr. Watson caused a dangerous situation, obviously it was never his intention to put himself and his son in danger. Based on the evidence provided, it appears that he simply was not thinking clearly that night, miscalculated his positioning and most likely drifted with the current in the line of fire of Blais and Trottier.

Time and Visibility

[25] Mr. Watson assumed that it was passed hunting time and no one would still be hunting. For that reason, he did not worry about the fact that he was virtually invisible and noiseless he stated. However, what became clear, during cross-examination, Mr. Watson was deceitful when he said he had received a text message from his wife Vanessa as to the exact time when hunting was officially over for September 13, 2013. And if it was not true that he retrieved any message from Vanessa, coupled with the fact that he admitted that as he was running late he did not have time to check the internet that day for the official ending shooting time, how can he say for certain that he knew when hunting was officially over that day? If Mr. Watson never checked the official ending time for shooting, his alarm on his watch could have very well been set at an earlier time than the actual end of legal shooting time.

[26] Mr. Blais claims they still had seven minutes of legal hunting time left. He shot down two out of three birds. How could he see and kill these birds if it was pitch black as Mr. Watson claims it was? Perhaps because numerous pellets spread and he got lucky says the prosecutor. However, the defendants readily admit seeing Mackenzie Watson and Seth after the shooting. Also, after they were shot at, Mr. Watson asked John Blais and Gilles Trottier, something along the lines of: "Didn't you see us?" As if it would have been perfectly normal for them to see him and Seth. If it was pitched black as Mr. Watson claims it was, obviously rather than asking: "How come you did not see us?" he would have asked: "What are you doing shooting past legal time, when it's pitched black out?" or something to that effect. Hence, it is more probable that it was not pitch black as Mr. Watson asserted during his testimony.

[27] Also, if it were true that it was past shooting time, why would Mr. Watson worry about getting in the way of the others and not make his presence known outright to the other hunters instead of pussyfooting among the water lilies and the other hunters' decoys?

[28] Based on Officer Smith's measurement, it took seven minutes to navigate, in the meandering creek, 400 meters from Mr. Watson's blind to the approximate location of the shooting incident. Officer Smith confirmed that this is the only measurement that he took that could assist in determining the time line. The exact distance and time it took to travel from the approximate shooting location to the boat launch and from the boat launch to the hospital were not measured. Likewise, Officer Smith could not confirm the precise time when Mackenzie Watson and Seth Morin were admitted in the hospital that evening.

[29] When I consider the totality of the evidence presented as far as timeline, a reasonable doubt has been raised that Messrs. Blais and Trottier took their last shot within legal shooting time.

Location

[30] Further, I have no reason to doubt that Mr. Blais and Mr. Trottier were shooting from their boat the whole time and not from the point as Mr. Watson initially assumed. Their statement was consistent and not contradicted by the OPP officers who initially investigated. Further, Mr. Watson admitted during cross-examination that he was not sure as to the defendants' exact location at the time of shooting. This was also confirmed by Officer Smith who went back to the site with Mr. Watson to obtain his version but never did so with the two defendants in order to get their perspective as to who was where.

Analysis, Application of Case Law and Decision

[31] Counsels for the defendants essentially argue that given the overall lack of evidence, all of the elements which would support a conviction of careless hunting have not been made out.

[32] Defence refers the court to the R. v. Perry; [1993] 140 NBR (2d) 133 case. This is a 1993 decision from the New Brunswick Court of Appeal. Two friends were hunting both dressed in camouflage. One shot the other by accident. At paragraph 23, the court indicates:

". . . Negligence involves a breach of duty to take care based upon a standard of care to be expected of a reasonable person, and in quasi-criminal law, the negligence must be deserving of punishment." And further, at paragraph 26 of said case: "Here I cannot see what duty of care Mr. Perry breached when he discharged his firearm. In the final analysis, it is difficult to conceive in this case that a person could be negligent for not seeing what was designed not to be seen. That is the purpose of wearing camouflage clothing."

[33] Defence counsels then make the point that the statement that is most compelling in all of the evidence that Mr. Watson gave is when he stated: "It's like we weren't even there." This statement was made by him in the context that the geese had landed within two to five feet of his boat. Mr. Watson's statement to the effect that he was essentially invisible provides a clear picture as to how camouflaged and quiet they were. Mr. Watson had stated earlier that geese do not like movement and will not come close if there is any movement.

[34] As for the MNR prosecutor, she takes the position that the fact that the defendants fired their firearm when both Seth and Mr. Watson were directly in their line of fire is prima facie evidence that the two defendants hunted carelessly. No matter the exact time it was when they fired, regardless as to whether it was within or after legal shooting time, the prosecutor makes the point that the defendants had an obligation to ensure that it was safe to shoot before actually shooting.

[35] Subsection 16(1) of the Fish and Wildlife Conservation Act reads as follows:

"A person who is in possession of a firearm for the purpose of hunting or trapping 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."

[36] This consists of a regulatory offence which falls in the strict liability category of offences as described in the R. v. City of Sault Ste. Marie (1978), 40 C.C.C. (2d), 353 case.

[37] As a first step, the prosecution must prove, beyond a reasonable doubt, that the defendants committed the illegal act.

[38] Regarding discharging firearms, of course firearms were discharged by John Blais and Gilles Trottier while hunting, in the direction of a boat occupied by a seven-year-old boy and his step-father. Since the two occupants of this tiny vessel were in the line of fire, they were indeed hit by stray pellets.

[39] Is it enough, though, as suggested by the prosecutor, that since John Blais and Gilles Trottier committed the actus reus of firing in the direction of Mackenzie Watson and Seth Morin, we can then automatically arrive at the conclusion that they discharged their respective firearm without due care and attention or without reasonable consideration for people or property?

[40] As pointed out by both the prosecutor and defence counsel, there is very little in the way of case law with respect to careless hunting, whereas there are numerous reported cases for careless driving under the Highway Traffic Act. Of course, these are not the same type of offences. However, both careless hunting and careless driving fall within the strict liability type of offence, and both offences are actually worded similarly. As such, prosecution and defence counsel referred me to careless driving case law as part of their submissions.

[41] In R. v. Beauchamp, [1952] O.J. No. 495 (C.A.), an Ontario Court of Appeal decision, Justice Mackay states at paragraph 19:

"It must also be borne in mind that the test, where an accident has occurred, is not whether, if the accused had used greater care or skill, the accident would not have happened. It is whether it is proved beyond reasonable doubt that the accused, in the light of existing circumstances of which he was aware or of which a driver exercising ordinary care should have been aware, failed to use the care and attention or to give other persons using the highway the consideration that a driver of ordinary care would have used or given in the circumstances. The use of the term "due care", which means care owing in the circumstances, makes it quite clear that, while the legal standard of care remains the same in the sense that it is what the average careful man would have done in like circumstances, the factual standard is a constantly shifting one, depending on … and any other conditions that ordinary prudent drivers would take into consideration. It is a question of fact, depending on the circumstances in each case."

[42] Therefore, in accordance with this decision, it is not proper to automatically transfer the onus on the defence solely based on the fact that a hunting accident occurred. The prosecutor must first prove that the way in which the firearms were discharged was done without due care and attention for people or property.

[43] Before starting this analysis, though, I must mention that the MNR prosecutor also referred the court to two other decisions. The first one is: R. v. Decaire [1987] O.J. No. 1938 of the Ontario Provincial Court – Criminal Division. In that case, a hunter mistakenly shot at and killed his cousin whom he mistook for a deer.

[44] Provincial Court Judge Bice, who found the accused guilty of careless hunting under S. 19 of the Game and Fish Act, states on page 3 (second para.) as part of his decision:

"While hunting with a firearm, as set out in s. 19, I am of the view, and I so hold that the standard of care is higher than that set out in Beauchamp. His Lordship in Beauchamp states that we must allow for persons of less skill to learn to drive and, therefore, the standard of care applied to them would not have to show a high degree of skill. Handling a firearm is a completely different matter, however. A firearm is made or designed to kill. No one should be permitted at any time to enter a hunting area or handle such a weapon without the highest degree of skill and proficiency, not only as to the use of the firearm, but as to the degree of knowledge of the safety factors in hunting. Hunting courses are now mandatory before licences to hunt are issued. Many of us learned these skills from our fathers and grandfathers. The bottom line when hunting is "don't shoot at anything unless you know what you are shooting at". Most of us who have hunted for years have had experiences where other persons caused a dangerous situation, but because of the safety precautions we have learned, we avoided making a mistake, mistakes that could turn out to be fatal."

[45] And two paragraphs further down Judge Bice adds: "… when hunting at close range extra care must be taken to make sure that no one is in the line of fire."

[46] The next case cited by the prosecution is: R. v. Buckton [2009] O.J. No. 1338, 2009 ONCJ 130, wherein Justice of the Peace Forster adopts and expounds on the standard set out in Decaire supra. More specifically, at paragraph 45, Justice Forster states as part of her decision:

". . . for a firearm to be discharged safely the hunter needs to take time to analyse the situation around them, they must ensure that they can see the surrounding area and that there are no people who might be endangered, and no property that could be damaged . . . a hunter has the obligation to be sure of their target, be sure of what is behind their target and be sure of what is between themselves and their target. Those are the appropriate safety checks before discharging a firearm."

[47] The Court recognizes, as per the Decaire decision cited above, that there is indeed quite a difference between driving a motor vehicle versus handling a firearm. The former meant to get from point A to point B, whereas the latter designed specifically to kill. As such, in accordance with the said Decaire decision, I agree that the standard of care for a careless hunting charge is higher than that set out in Beauchamp supra.

[48] As indicated in the Perry and Beauchamp decisions, though, there is nevertheless still a further important element to consider. That is, the conduct of the defendants must be of such a nature that it can be considered a breach of duty to the public and deserving of punishment.

[49] In that regard if the defendants did shoot after prescribed time and when it was dark, yes that would be careless not to say a dangerous illegal action. And it would be consistent with the charge of discharging a firearm without due care and attention for people or property deserving of punishment.

[50] There is no doubt that it was close to "closing" time. The testimony of Mr. Watson though on the issue was not credible while that of Officer Smith was inconclusive. As such, as indicated I am not convinced that the defendants shot after legal shooting time. Even the prosecution asked the Court to dismiss the charge of hunting after legal time in the course of this trial.

[51] Since I accept the statement of Mr. Blais and Mr. Trottier to the effect that they saw Mr. Watson and his son after the shooting, as opposed to the version of Mr. Watson that it was pitch black out, I accept that there was still light out there, although dimming since shortly after sunset, but still within permissible shooting time. In other words, a reasonable doubt has been raised that it was still within legal shooting time in this case.

[52] Further, I have no reason to doubt the defendants when they both state during their individual official MNR taped interview that they never left their boat when hunting that evening. As such, unlike in the Decaire decision, here the prosecution presented no precise evidence as to what the defendants could see, or could not see, from the location where they were hunting in their boat.

[53] In the Decaire supra decision, at page 3 (seventh para), the evidence of the OPP and MNR officials is that visibility was almost nil from the place where the defendant was standing when he shot. Again, in the case at bar, the court has no such evidence. Here, Mr. Blais and Mr. Trottier were not shooting through thick bushes without knowing what was on the other side. They were shooting towards birds landing on water near their decoy positioned in close proximity.

[54] There are also major differences between the facts in the present case and those in the Buckton decision relied upon by the prosecutor. In that latter case, the defendants were clearly committing illegal and dangerous acts by shooting several times with high-powered rifle from inside their motor vehicle at the side of a public road. The shots were fired across the roadway where other vehicles, pedestrians or cyclists could have come along. This presented significant risks considered a breach of duty to the public and deserving of punishment that are in no way comparable to the facts in the present case. Here, Mr. Blais and Mr. Trottier were not doing anything illegal. At least, nothing was proven in that regard. They were not trespassing, it was not determined that they were hunting after legal time, and similarly to the Perry supra decision, they could not be expected to see what was designed not to be seen; a tiny camouflaged boat and its two occupants who were acting so as not to be seen or heard.

[55] Clearly, unlike the cases cited above, the MNR prosecutor in the case at bar failed to establish a lack of care and attention deserving of punishment on the part of John Blais and Gilles Trottier.

[56] Yes every hunter is responsible for every pellet that is fired out of their firearm and as indicated by Officer Smith, pellets travel far and wide. The further the range the farther they spread he said.

[57] However, if Mr. Blais and Mr. Trottier were still hunting within permissible time, could not see the little boat and its occupants since the said boat and occupants were essentially invisible (even to birds) as stated by Mr. Watson himself, and was possibly not even in Blais and Trottier's field of vision at that precise time when they looked to ensure the coast was clear before shooting, how can it be said that they "discharged their firearm without due care and attention or without reasonable consideration for people or property"?

[58] More specifically, based on the overall evidence, since the Court accepts that Mr. Blais and Mr. Trottier were hunting from their boat, not from the ridge on shore, it is possible that Mr. Watson's boat was not anywhere to be seen yet when Mr. Blais and Mr. Trottier raised their firearms and shot. That is, Mackenzie Watson and Seth could have been still behind the point in this meandering creek, before drifting unexpectedly in the wrong place at the wrong time.

[59] This is a case where despite the fact that Messrs. Blais and Trottier are experienced hunters, well aware of safety measures, they could not foresee Mr. Watson and Seth emerging from around the bend before end of shooting time; or anyone else for that matter since there was no evidence to the effect that, apart from Mr. Watson and Seth, there were any other individuals on Meadow Creek that evening.

[60] As stated in the R. v. Decaire supra decision, of course hunters are expected to follow safe practices when handling and discharging their firearms. However, there are still situations where accidents are unavoidable despite taking all reasonable care. In the court's opinion, for the reasons stated above, this is one of them.

[61] When the totality of the evidence presented is viewed objectively, the court is left with a reasonable doubt as to whether or not John Blais and Gilles Trottier were hunting carelessly on the night in question. As such, in application of R. v. W(D), [1991] 1 S.C.R. 742 (1991) S.C.C., the defendants, John Blais and Gilles Trottier, are found not guilty of the offences and all charges are dismissed by the court.

Released: February 22, 2016

Signed: "Justice of the Peace S.-É. Bourbonnais"