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. 98-WIL-33 In the matter of an appeal under section of the Wildlife Act, R.S.B.C. 1996, c BETWEEN: Kevin Ratushniak APPELLANT AND: Deputy Director of Wildlife RESPONDENT BEFORE: DATE: A Panel of the Environmental Appeal Board Toby Vigod, Chair Conducted by way of written submissions concluding on March 15, 1999 APPEARING: For the Appellant: Kevin Ratushniak For the Respondent: Geoff Swanell APPEAL This is an appeal by Kevin Ratushniak against the September 2, 1998 decision of the Deputy Director of Wildlife to cancel Mr. Ratushniak s hunting licence for five years. The Environmental Appeal Board has authority to hear this appeal under section 11 of the Environment Management Act, and section of the Wildlife Act. Mr. Ratushniak is seeking an order to reduce his licence cancellation to one year, with a three-year probationary period during which he must be accompanied by an adult if he wishes to hunt. This appeal was conducted by way of written submissions, concluding on March 15, BACKGROUND Mr. Ratushniak is 20 years of age. He presently lives in Campbell River, B.C., and works on a nearby oyster farm. Prior to this incident, Mr. Ratushniak had never been charged with an offence under the Wildlife Act. On October 23, 1997, Mr. Ratushniak and his hunting partner, Derek Thornton, left Campbell River for a hunting trip near 100 Mile House, B.C. Mr. Ratushniak was 18 years of age at the time; Mr. Thornton was 19. This was the first time either Mr. Ratushniak or Mr. Thornton had been hunting without the guidance of their parents,

2 APPEAL NO. 98-WIL-33 Page 2 and they were anxious to demonstrate that they could have a successful hunt on their own. The two young men took a ferry from Nanaimo to the mainland, and proceeded to travel all night. In the early morning hours of October 24, 1997, they drove into the 76 Mile Forest Service Road south of 100 Mile House. It was dark when they arrived at their destination, and the hunters slept briefly in the truck, awaiting daybreak. At first light, Messrs. Thornton and Ratushniak left their vehicle to begin their hunt, each carrying a gun. At approximately 8:45 a.m., Messrs. Thornton and Ratushniak sighted two bull moose in a clear-cut approximately 200 metres from them in Wildlife Management Unit 5-01 ( MU 5-01 ). Both hunters fired several rounds at the animals. Both moose were killed. Neither man had a valid moose species licence issued in his own name. Mr. Ratushniak had a licence for mule deer, and Mr. Thornton carried a moose species licence belonging to his brother, Ryan Thornton. Derek Thornton also carried his brother s limited entry hunting ( LEH ) authorization for MU Ryan Thornton was not present at the hunt, and MU 5-01 was closed for bull moose except to those hunters who had been issued an LEH authorization. Mr. Ratushniak cancelled the moose species licence belonging to Ryan Thornton, cutting out the notches to indicate the 24th day of October; antlered moose; region 5. The men proceeded to gut one of the moose and load the meat into their truck, leaving the other carcass at the kill site. They drove to the nearby 94 Mile Motel, where they hung the meat outside to stay cool, and headed to 100 Mile House. There, Mr. Thornton purchased a moose species licence and promptly cancelled it to show the 24th day of October; antlered moose; region 5. Messrs. Thornton and Ratushniak then returned to the kill site, gutted the second moose, and took that carcass back to hang with the other at the 94 Mile Motel. Later that same day, Messrs. Ratushniak and Thornton resumed hunting. They were stopped by patrolling conservation officers, and questioned separately. Mr. Ratushniak told the officers that he had killed a bull moose that morning. He claimed to be Ryan Thornton, and produced Ryan Thornton s hunting licence, species licence, and LEH authorization. Upon further questioning, Mr. Ratushniak admitted his true identity, and confessed that he had used the licence belonging to Ryan Thornton to cover a bull moose that he and Derek Thornton had killed illegally that morning. Mr. Ratushniak also told the officers that Derek Thornton had shot a second moose in an open area, and had properly cancelled his own licence. Derek Thornton told the officers that he and Mr. Ratushniak had shot two bull moose that morning. Indicating that Mr. Ratushniak was his brother, Ryan Thornton, Derek Thornton said that Ryan had shot the first moose in MU Derek Thornton also told the officers that he had killed the second moose in MU 5-02, an area open for bull moose hunting.

3 APPEAL NO. 98-WIL-33 Page 3 The officers were suspicious. They took statements from both hunters, seized their firearms and the hunting licences in their possession, and informed Messrs. Ratushniak and Thornton that they would resume their investigation in the morning. Messrs. Ratushniak and Thornton returned to their room at the 94 Mile Motel. They discussed their situation, and decided that they would attempt to thwart the officers investigation by manipulating the evidence. They returned to the kill site in MU 5-01, and used a tarp to load one of the piles of moose guts into the back of their truck. They then drove to an area that was open to the hunting of bull moose, in MU There, they deposited the moose guts by the shore of a small lake. Mr. Thornton also dropped two fired rifle cartridges on the ground nearby to make it appear that a moose had been shot at that site. The men then returned to their hotel room for the night. On the morning of October 25, 1997, the investigating officers met Messrs. Ratushniak and Thornton at the 94 Mile Motel. The officers examined the hanging moose carcasses, and questioned both hunters again about how the moose were killed. At that time, both Mr. Ratushniak and Mr. Thornton admitted to having used Ryan Thornton s licence to cover the first moose, which they had illegally killed in MU However, Mr. Ratushniak and Derek Thornton both continued to claim that Derek Thornton had killed the second moose in a different location, using his own licence legally. Both men offered to take the officers to the second kill site to verify their story. The officers agreed. Mr. Ratushniak and Derek Thornton led the officers to the spot in MU 5-02 where they had deposited the moose guts and the fired rifle cartridges the previous evening. They told the officers that Derek Thornton had shot the second moose at that site. The hunters then took the officers to the location in MU 5-01 where they had actually killed both moose. They showed the officers the single remaining pile of moose guts and the drag marks leading to the spot where they had loaded the moose into their truck. Noticing a nearby bloody area and a second set of drag marks, the officers separately confronted Mr. Ratushniak and Mr. Thornton with this evidence. Both Mr. Ratushniak and Mr. Thornton confessed. They both made statements admitting that Mr. Thornton had purchased his moose species licence after both moose were already dead, and they also admitted to having manipulated the evidence in an attempt to mislead the officers. As a result of the incident, both Mr. Ratushniak and Mr. Thornton were charged with eight offences of the Wildlife Act. On June 16, 1998, Mr. Ratushniak and Mr. Thornton both plead guilty in Provincial Court to two counts of hunting moose without a licence, and failing to state the correct location of the kill. As a result, both hunters were fined $ on each count, and both were prohibited from possessing a firearm for a period of five years.

4 APPEAL NO. 98-WIL-33 Page 4 On June 19, 1998, Conservation Officer Kelly Dahl submitted a Licence Action Recommendation to the Deputy Director of Wildlife, Mark Hayden, with respect to Messrs. Ratushniak and Thornton. Officer Dahl explained the circumstances surrounding the illegal moose kill, and noted the sentences imposed by the Provincial Court. He recommended that the Deputy Director should cancel the hunting and firearm licences of both Mr. Ratushniak and Mr. Thornton for a period of at least five years. On appeal of the sentence to the B.C. Supreme Court, Mr. Justice Thackray revised their respective sentences by consent of the parties. In an order dated July 24, 1998, Mr. Ratushniak and Mr. Thornton received fines of $1000 for each of the two counts, the firearms that previously had been seized were forfeited to the Crown, and the five-year firearm possession prohibition was lifted. By letter dated September 2, 1998, the Deputy Director notified Mr. Ratushniak that he would be subject to an administrative penalty in addition to the judicial penalty. After having given Mr. Ratushniak appropriate notice and opportunity to be heard, the Deputy Director canceled Mr. Ratushniak s hunting licence for five years. In a separate decision, the Deputy Director canceled Mr. Thornton s licence for six years. By letter dated October 5, 1998, Mr. Ratushniak appealed the Deputy Director s decision to the Environmental Appeal Board. Mr. Ratushniak seeks an order from the Board to reduce the duration of his licence cancellation. ISSUE The issue in this appeal is whether the five-year cancellation of Mr. Ratushniak s hunting licence is appropriate, given all the circumstances. RELEVANT LEGISLATION Section 11(5) of the Wildlife Act provides: A person under 19 years of age commits an offence if the person hunts unless the person is accompanied by and under the close personal supervision of a person who (a) is 19 years of age or older, and (b) holds, or is exempted from holding, a hunting licence. DISCUSSION AND ANALYSIS Mr. Ratushniak submits that the Deputy Director s decision to cancel his hunting licence for five years is excessive in the circumstances of this case. Mr. Ratushniak considers himself to be a responsible outdoors person. He says that he was raised to have an awareness and appreciation of nature, and began to hunt with his family when he was 12 years old. He has worked in hunting and fishing

5 APPEAL NO. 98-WIL-33 Page 5 specialist stores, and as a fishing guide. He submits that hunting and fishing are his primary forms of outdoor recreation. Mr. Ratushniak says that his main objective for the hunting expedition was to bag a mule deer, for which he had a valid licence. He stresses that he did not plan to illegally hunt moose. Mr. Ratushniak says that on the morning of October 24, 1997, he intended to check the area for moose signs, and if there seemed to be a good moose count, to purchase a moose tag in 100 Mile House. However, he admits that when he actually saw the two bull moose, his adrenaline and excitement took over. Mr. Ratushniak says that he did not know that he was in an LEH area when he shot the moose (although his hunting partner had been in the area before), nor was he aware that his partner did not have a valid moose tag. Mr. Ratushniak submits that, in retrospect, he knows that he should have confirmed the legality of their hunt prior to shooting the moose. He submits that peer pressure, inexperience, and a horrible fear of the consequences all played a role in his lying and deceit after the kill. Mr. Ratushniak recognizes and deeply regrets his mistakes in killing the moose, and the subsequent investigation into the hunt. He admits responsibility for the offence, and accepts that his court-imposed sentence was fair, just, and warranted. However, he feels that the $2000 fine and the forfeiture of his (father s) weapon - coupled with the stigma associated with having his name published in relation to the offence - is sufficient punishment. Mr. Ratushniak submits that he has learned his lesson, and that the additional stress of the loss of [his] hunting licence for such a lengthy period [five years] is unfair, particularly in light of his young age and lack of experience. Mr. Ratushniak notes that at the time of the offence, he was a minor for the purposes of the Wildlife Act, and technically was the responsibility of the adult with [him], Derek Thornton. Notwithstanding that, Mr. Ratushniak says that he opted to take the punishment as an adult to show the remorse [he] felt, and notes that the adult supervising [him] received the same sentence. Mr. Ratushniak could not afford a lawyer for the purposes of the court proceedings, and relied on counsel for Derek Thornton. Had his own interests been represented separately from Mr. Thornton s, and had his age been presented as a mitigating factor, Mr. Ratushniak feels that the court may have been more lenient towards him. Mr. Ratushniak submits that the Deputy Director may not have considered all of the relevant evidence in assessing whether an administrative penalty was appropriate. He notes that the Licence Action Recommendation submitted by Conservation Officer Dahl was based on the original Provincial Court sentence. Mr. Ratushniak reminds the Panel that the Provincial Court sentence was revised in the Supreme Court. Mr. Ratushniak submits that had the Deputy Director factored the Supreme Court sanction into his decision, rather than the more lenient Provincial Court fine, he might have decided that Mr. Ratushniak had been sufficiently punished, and that a strict administrative penalty was not warranted.

6 APPEAL NO. 98-WIL-33 Page 6 The Respondent submits that the five-year suspension of Mr. Ratushniak s licence is warranted. The Respondent notes that Mr. Rushniak was just three months short of being 19 years old at the time of the offence, and says that the Deputy Director gave appropriate consideration to Mr. Ratushniak s age. Although the age factor is not explicitly mentioned in the Deputy Director s written decision, the Respondent submits that it is partly reflected in the different administrative penalties imposed on Mr. Rushniak (five-year cancellation), as compared to his older hunting partner, Mr. Thornton (six-year cancellation). The Respondent also points out that 18 years is considered old enough to be tried as an adult in both Provincial and Federal courts and it is old enough to obtain authorization to acquire and carry a firearm as an adult under the Federal Firearms regulations. The Respondent also notes that Mr. Ratushniak completed the CORE program with a mark well above average, and submits that, in spite of his young age, Mr. Ratushniak must have had a very good idea of his own concerning the acceptability of his actions. With respect to Mr. Ratushniak s contention that the Deputy Director may not have considered all relevant evidence in coming to his decision, the Respondent points out that even though Officer Dahl s Licence Action Recommendation was based on the original (Provincial Court) sentencing, the Deputy Director was notified of the subsequent change in sentencing, and considered the revised sentence in coming to his decision. The Respondent states that the purpose of the Wildlife Act is to conserve wildlife, and he submits that when a person does not follow the law and ignores harvest restrictions, the purpose of the Wildlife Act is confounded. The Respondent stresses that the unlawful removal of game animals from LEH areas is particularly unethical, as it has a significant impact on the wildlife resource and the planning done by wildlife managers. He also submits that Mr. Ratushniak s deliberate and elaborate attempt to mislead Conservation Officers in the course of their investigations has a further significant impact on the ability to manage wildlife and the ability to enforce the law. DECISION In making this decision, the Panel of the Environmental Appeal Board has carefully considered all of the evidence before it, whether or not specifically reiterated here. The Panel accepts Mr. Ratushniak s evidence that he sincerely regrets his actions in relation to the moose-killing incident and the subsequent investigation. The Panel also recognizes that Mr. Ratushniak believes that his court-imposed sentence, while warranted, is sufficient punishment for his offence, and that the additional administrative sanction imposed by the Deputy Director is excessive. Mr. Ratushniak was 18 years and 9 months old when this incident occurred. His hunting partner, the adult responsible for supervising him, was just seven months his elder. Mr. Ratushniak saw the hunting trip as an opportunity to prove himself as a competent hunter, but, unfortunately, he made some fundamental, serious

7 APPEAL NO. 98-WIL-33 Page 7 mistakes. He hunted in an LEH area without authorization. He killed a moose without a moose-species licence. And rather than informing the authorities of the illegal kill, he lied to them, and deliberately manipulated the evidence in an attempt to foil their investigation. Mr. Ratushniak attributes his errors to such factors as adrenaline and excitement, peer pressure, lack of knowledge of the area, and uncertainty as to whether his hunting partner was legally licenced. Mr. Ratushniak s explanations for his actions do not lead the Panel to conclude that the Deputy Director erred in cancelling his hunting licence for five years. The Panel finds that the sanction imposed by the Deputy Director accurately reflects the seriousness of Mr. Ratushniak s offence. Moreover, the Panel finds that the Deputy Director did not err in imposing a significant administrative penalty when the court had already sentenced Mr. Ratushniak. The Wildlife Act clearly separates penalties for offences that are dealt with by the court from administrative penalties that are the purview of administrative officials. As a result, administrative penalties may be imposed separately from, and in addition to, court-imposed sanctions. While the severity of judicial sentences may be considered by administrative decision-makers, court-imposed sanctions are not determinative of an appropriate administrative penalty the processes for determining judicial and administrative penalties are independent. The Board has made this distinction clear in several past cases, including, most recently, Shayne Quintal v. Deputy Director of Wildlife (Environmental Appeal Board, Appeal No. 98- WIL-20, December 8, 1998); and Leveque v. Deputy Director of Wildlife (Environmental Appeal Board, Appeal No. 98-WIL-04, January 8, 1999)(both unreported). The Panel is satisfied that in coming to his decision, the Deputy Director properly considered all of the relevant factors (including Mr. Ratushniak s age, and the sanction imposed upon him by the Supreme Court), and that his decision to cancel Mr. Ratushniak s hunting licence for five years is appropriate. This appeal is dismissed. Toby Vigod, Chair Environmental Appeal Board March 23, 1999