Thomas Schreiber v. Environmental Appeal Board et al

File Number:
BCSC 515

Decision Date: April 5, 2001

Court: B.C.S.C., Mr. Justice T. M. McEwan

Cite: Nelson Registry No. 7791

Mr. Schreiber sought a judicial review of a decision of the Environmental Appeal Board to uphold a decision of the Deputy Director of Wildlife cancelling Mr. Schreiber’s hunting and firearms licences and fixing an ineligibility period of 6 years to obtain or renew the licences.

In October 1993, Mr. Schreiber reported having killed a bighorn ram at Dry Creek. Two hunters observed Mr. Schreiber that day in a prohibited area, the Line Creek Mine. Conservation officers investigated and found a sheep kill site within the mine area, and seized the sheep head from Mr. Schreiber. DNA samples from the kill site and from the head were sent for analyses. The first analysis at a lab in Oregon reported a negative match, while a second analysis from the University of Alberta reported a match. The lab in Oregon acknowledged the superiority of the University of Alberta’s analysis.

In November 1995, Mr. Schreiber was convicted in B.C. Provincial Court of offences under the Wildlife Act: hunting out of season, possessing dead wildlife unlawfully, and making a false statement in a report. In December 1998, the B.C. Supreme Court overturned those convictions and ordered a new trial due to problems with the expert evidence. However, Mr. Schreiber remained convicted of the additional charge of entering a mine site at an unrecognized point of entry. Crown Counsel ultimately decided not to proceed with a new trial.

On February 24, 1998, the Deputy Director of Wildlife cancelled Mr. Schreiber’s hunting and firearms licences, and ordered a 6 year period of ineligibility. This decision noted the Supreme Court findings as well as additional evidence regarding the DNA samples which was not before the Court.

The Board upheld the Deputy director’s decision, finding that the Deputy director had considered the conflicting DNA test results, that the Supreme Court proceedings were not determinative of the matter before the Deputy Director, and the penalty imposed by the Deputy Director was reasonable.

On judicial review, the Court upheld the Board’s decision. The Court confirmed that 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. The Court also rejected Mr. Schreiber’s argument that there was a violation of procedural fairness because he was not afforded an opportunity to have his own DNA samples taken of the seized evidence, nor the opportunity to cross examine the Crown’s scientific evidence. The Court found that there was no evidence that Mr. Schreiber had ever requested DNA samples for his own purposes, or that there was any obstacle to his access to witnesses.

The Court found that the Board was correct in its finding that the Deputy Director had a solid evidentiary basis for finding that the carcass from the Mine site and the head in Mr. Schreiber’s possession were from the same animal. He noted that Mr. Schreiber did not provide evidence to support a different conclusion.

The Court rejected Mr. Schreiber’s position that the Board erred in failing to order that the matter be disposed of in his favour because of delays in the hearing before the Deputy Director and the expense of the Crown pursuing different processes. The Court noted that Mr. Schreiber had requested a delay of the Deputy Director’s hearing pending the conclusion of his criminal trial. Citing the Supreme Court of Canada decision in Blencoe v. British Columbia (Human Rights Commission), 2000 S.C.C. 44, the Court stated that Mr. Schreiber had not identified any prejudice from the delay leading to unfairness.

The Court further stated that Mr. Schreiber was afforded a fair hearing and the appropriate burden of proof was applied. The Court held that there was no evidence that the Board ignored material evidence relating to the penalty, and no suggestion that the factors cited by the Board or the Deputy Director in arriving at the penalty were inappropriate.

The petition was dismissed.