Abraham Dougan v. Deputy Director of Wildlife and Habitat
Decision Date: December 23, 2019
Panel: Susan E. Ross
Keywords: Charter of Rights and Freedoms – ss. 7, 11(b), 11(h); Wildlife Act – ss. 24, 103(1); hunting licence; contravention; cancellation; administrative penalty; delay; estoppel; abuse of process
Abraham Dougan appealed a decision of the Deputy Director of Wildlife and Habitat (the “Director”), Ministry of Forests, Lands, Natural Resource Operations and Rural Development (the “Ministry”), ordering the cancellation of his hunting licences, and a two-year prohibition on hunting and his eligibility to apply for hunting licences or authorizations (the “Decision”).
The Appellant is a long-time hunter and guide outfitter in BC. Although the Appellant is a professional guide outfitter, these proceedings related to his personal hunting privileges, and not his guide outfitter certificate or licence.
The Decision was based on the Director’s consideration of court findings of guilt against the Appellant in relation to a recreational hunt for Dall sheep in 1999, and a guided big game hunt in 2011. Specifically, in 2016, the Appellant was found guilty of four offences related to the 1999 hunt, but he was not convicted because the proceedings were judicially stayed due to infringement of the Appellant’s right under section 11(b) Charter of Rights and Freedoms (the “Charter”) to a trial within a reasonable time. Meanwhile, in 2014, the Appellant and a hunter he had guided each pled guilty to two 2011 offences under the Yukon Wildlife Act, for wasting the meat of two animals and commencing a hunt when not permitted to do so. The court sentenced the Appellant to fines of $15,000 and a 20-year prohibition on hunting or guiding in the Yukon. In addition, the Director considered previous compliance issues in relation to the Appellant including warnings issued by Conservation Officers.
The Appellant appealed the Director’s Decision. He asked the Board to reverse the Decision on the grounds that the Director’s proceedings were barred by the 18-month limitation period for prosecuting offences in section 103(1) of the Wildlife Act. He also argued that the Decision should be reversed under sections 7, 11(b) and (h) of the Charter and the principles of estoppel and abuse of process because of: delay in some of the court proceedings and the Director’s proceedings; duplication between some of the court and Director’s proceedings; misconduct by Conservation Officers and Ministry licensing officials; and, an absence of proof on the other compliance issues. The Appellant also claimed that the Director erred when considering the appropriate administrative penalty in the circumstances.
First, the Board considered whether the Decision should be reversed based on the 18-month time limit on prosecuting offences. The Board found that the time limit did not apply to the Director’s proceedings. The time limit in section 103(1) of the Wildlife Act applies to “laying an information in respect of an offence under this Act.” Administrative proceedings do not require the “laying of an information” and are different from the prosecution of offences.
Second, the Board considered whether the Director’s proceedings or Decision violated the Appellant’s rights under sections 11(b), 11(h) or 7 of the Charter, respectively: the right to be tried within a reasonable time; the right not to be tried or punished more than once for the same offence; and, the right to “life, liberty and security of the person”. The Board found that that section 11 of the Charter does not apply to the Director’s proceedings or Decision. Section 11 of the Charter applies to prosecutions for offences involving criminal and quasi-criminal offences, but not to proceedings involving a person’s fitness to hold a licence, or imposing administrative disqualifications as part of a regulatory scheme.
In addition, the Board held that none of the Appellant’s section 7 Charter rights were violated. Section 7 of the Charter does not provide a right to a particular livelihood or to participate in a particular economic sector. Neither the Appellant’s work as a guide outfitter nor his choice to eat wild meat were not protected by section 7 of the Charter. Furthermore, the Appellant’s arguments on section 7 amounted to challenging to the Director’s authority to order hunting prohibitions under section 24 of the Wildlife Act. To challenge the constitutional validity of section 24, the Appellant was required to give advance notice to the Attorney General under the Constitutional Question Act, which he did not do.
Third, the Board considered whether the Decision should be reversed because of an abuse of process from undue delay, based on the common law principles regarding fairness in administrative proceedings. The Board found that there was no evidence that any delay in the Director’s proceedings caused prejudice to the Appellant. Rather, it was reasonable, and probably advantageous to the Appellant, that the Director’s proceedings did not begin until the court proceedings concluded. The Appellant suffered no administrative impacts in the interim, because the Director imposed no interim sanctions.
Fourth, the Board considered whether the Decision should be reversed because of alleged misconduct and abuse of process by Conservation Officers and Ministry licensing officials. The Board concluded that the Appellant’s allegations were inadequately supported by evidence, the unsworn suspicions of one of his clients, and vague hearsay allegations. This evidence was insufficient to prove the alleged misconduct.
Fifth, the Board considered whether the Decision should be reversed on the basis that the Director’s proceedings duplicated the prior court proceedings. Specifically, the Board considered the common principles of res judicata, which prevents re-litigation of the same matter or the same issues, and abuse of process. The Board found that those principles did not apply. The court proceedings involved criminal offences that were prosecuted by the federal Crown, whereas the Decision involved administrative proceedings by the Director, a provincial official. The Director’s proceedings did not relitigate the court findings, and the Wildlife Act expressly authorizes administrative proceedings in addition to offence proceedings.
Sixth, the Board found that the Director’s consideration of the court’s guilty verdict did not undermine the Appellant’s rights. After he was found guilty beyond reasonable doubt, the Director could accept the court’s findings of guilt. The doctrine of abuse of process prevents the Appellant from denying or relitigating the substance of those findings.
Finally, the Board considered the appropriate penalty in the circumstances. The Board concluded that the two-year prohibition was at the low end of the scale for very serious incidents. However, after taking into account the 20-year hunting prohibition the Appellant received for the Yukon court convictions and the impact of publicity during the trial of the Dall sheep hunt charges, the Board decided to confirm the two-year prohibition.
For those reasons, the Board confirmed the Director’s Decision and dismissed the appeal.