• Barry Anthony Barnes v. Deputy Director

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    Decision Date: October 3, 2005

    Panel: Alan Andison

    Keywords: Wildlife Act – ss. 24(2)(a), (5), (8)(a)-(c), (12), (15); Offence Act – s. 78(2); hunting licence, jurisdiction to suspend, criminal charges, burden of proof, fair notice, apprehension of bias, failure to consider submissions.

    Barry Anthony Barnes appealed the decision by the Deputy Director, Fish, Wildlife Recreation and Allocation Branch (the “Deputy Director”) to cancel Mr. Barnes’ hunting licence for fifteen years.  The cancellation arose from Mr. Barnes being charged with 35 offences under the Wildlife Act.  He was convicted of nine of those offences under sections 75, 81(a), 81(b), and 82(1)(d) of the Wildlife Act.

    The Board held a preliminary hearing because Mr. Barnes’ notice of appeal raised a number of issues regarding alleged jurisdictional and procedural errors in the proceedings before the Deputy Director.  Those issues could be determinative of the appeal, even if the merits of the cancellation are not examined.  Therefore, this decision addressed those issues.

    The Board found that the Deputy Director has jurisdiction to suspend or cancel Mr. Barnes’ hunting licence under section 24(2) of the Wildlife Act as a result of his 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).  Further, the Board agreed with the Deputy Director’s submission that a conviction under the Wildlife Act suffices as the condition precedent to the Deputy Director’s authority, under section 24(5), to impose ineligibility.

    The Board found that the Deputy Director considered the dismissed charges in cancelling Mr. Barnes’ hunting licence.  However, section 78(2) of the Offence Act does not preclude the Deputy Director from considering charges that have been dismissed in the provincial court.  Administrative hearings under the Wildlife Act are conducted on a standard of proof of “a balance of probabilities”, while quasi-criminal proceedings under the Wildlife Act are conducted under the much higher standard of “beyond a reasonable doubt.”  The Board also concluded that in making an administrative decision, the Deputy Director did not engage in abuse of process.  The charges were not being “relitigated.”  Rather, the Deputy Director was determining whether the evidence established, on a balance of probabilities, sufficient grounds to warrant a suspension or cancellation of Mr. Barnes’ licence.  Further, the Wildlife Act empowers the Deputy Director to bring disciplinary proceedings in addition to any court proceedings arising out of the same set of facts, and to impose an administrative penalty in addition to penalties imposed by a court.

    The Board found that a notice letter sent to Mr. Barnes by the Deputy Director was deficient because it cited a section of the Wildlife Act under which Mr. Barnes had not been charged as a consideration for the Deputy Director’s decision.  The letter also erroneously described the charge.  Furthermore, it was unclear from the notice whether the grounds for the Deputy Director’s decision would be based on convictions or charges.  The Board concluded that such misleading notice would prevent Mr. Barnes from meeting the case against him, and therefore, he did not receive fair notice of the matters to be considered by the Deputy Director.

    The Board found that Mr. Barnes delivered his submissions to the Deputy Director, but the Deputy Director failed to consider his submissions before making his decision.  Further, the Board found 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 before making the decision.  The Board concluded that there would be a reasonable apprehension of bias if the matter were sent back to the Deputy Director for reconsideration.

    The Board referred the matter to the Director or an alternative designate of the Director for a full hearing on its merits.  The Board directed that Mr. Barnes should be provided with a new notice that includes the full grounds and specific licence action contemplated.  Furthermore, the licence cancellation, the declaration of ineligibility, and the requirement that Mr. Barnes successfully complete the Conservation and Outdoor Recreation Education program prior to applying for a new hunting licence were all set aside.

    Accordingly, the appeal was allowed in part.