Before: The Honourable Mr. Justice Cole

Reasons for Judgment

Counsel for the Crown	Todd C. Gerhart
Counsel for Respondent:	Max F. Russmann
Date and Place of Hearing:	November 27, 2007
	Vernon, B.C.

[1] This is an appeal by the Crown from a decision of a Provincial Court Judge who found the respondent, Robert Benjamin Procter (“Procter”), not guilty with respect to two counts of harmful alteration, disruption or destruction of fish habitat, contrary to s. 35(1) of the Fisheries Act, R.S.C. 1985, c. F-14. The only difference between the two counts is in the particularization of the fish habitats: in count one, the “Shuswap River” and, in count two, “an area of approximately 578 meters of repairing vegetation along the Shuswap River.”

[2] The appellant says that the trial judge erred in law in finding that the proof of harm to salmon habitat was not proof of harm to “fish habitat” for the purposes of s. 35(1) of the Fisheries Act.

[3] Section 35(1) of the Fisheries Act states:

No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.

Background:

[4] Between January 21, 2002 and July 2, 2002, Mr. Procter logged a cut block, (the “Site”) which he owned, and which was located along the Shuswap River, approximately two kilometres upstream of Mabel Lake, near the town of Lumby, B.C. The logs were removed from the Site and sold for approximately $130,000.

[5] Fishery officers attended the Site on July 16, 17, and 25 of 2002 and determined that approximately 1,116 trees were logged from the Site within 30 metres of the Shuswap River. Approximately 80% of the trees were clearcut. Approximately 60% and 100% of the area closest to the river had been covered with heavy bush, which was, in large part, eliminated or covered by slash, through the construction of the logging roads.

[6] Biologists gave evidence that the Shuswap River, adjacent to the logging Site, is a fish habitat for chinook, sockeye, coho, and kokanee salmon, as well as rainbow and bow trout. There were also significant chinook and sockeye salmon spawning grounds immediately adjacent to the Site.

Reasons for Judgment by the Provincial Court Judge:

[7] In the reasons for judgment, R. v. Procter, (26 April 2006), Vernon 38478 (B.C.P.C.) the learned trial judge, at paras. 68 - 74 said under the title “Conclusion”:

68. The experts differed on whether the logging was a harmful alteration, disruption or destruction of fish habitat.

69. Part of the opinion of the Defence expert was based on a legally improper proposition.

70. The expert evidence was limited to the effect of the logging on salmon. The definition of “fish” includes other forms of marine life. No evidence was adduced on whether the effect on salmon was generalizable to any or all other all marine life in the river.

71. Fish habitat is a complex ecosystem of dependent and interrelated relationships between fishes and other marine life as well as between marine life and terrestrial life adjacent to the river. These relationships change over the life cycles of the marine life as well as that of the streamside vegetation.

72. The Crown must prove that the logging was “harmful” to fish habitat. This is a qualitative term which requires comparison of the lifestyle of marine life before and after the logging. If the logging caused the net lifestyle of marine life or usefulness of fish habitat to marine life to diminish then harm has occurred.

73. The evidence did not evaluate the effect of the logging on “fish” as defined by the Act, as a whole. In that sense the expert evidence was inadequate to prove beyond a reasonable doubt that the logging was “harmful” to fish habitat.

74. The case is dismissed.

[8] I do not accept the proposition set forth by the appellant that the judge made a finding that harm to salmon habitat was not proof of harm to “fish habitat” for the purposes of s. 35(1) of the Fisheries Act.

[9] However, I do find that the learned trial judge fell into error in the last paragraph of his reasons for judgment when he said that the evidence “did not evaluate the effect of the logging on ‘fish’” and then stated that: “[i]n that sense the expert evidence was inadequate to prove beyond a reasonable doubt the logging was harmful to fish habitat.”

[10] In my view that is not the test. The correct test was stated by Mr. Justice K. Smith (as he then was) in R. v. Posselet, [1999] B.C.J. No. 1141 (S.C.) (Q.L.) at para. 23:

I do not think that harm to fish is an element of the offence. What is prohibited by s. 35(1) is the harmful alteration, disruption or destruction of fish habitat, not the alteration, disruption or destruction of fish habitat that results in harm to fish. In my view, the actus reus of the offence is established if the Crown proves beyond a reasonable doubt that the accused interfered with the fish habitat in a way that has impaired the value or the usefulness of the habitat for one or more of the purposes described in the definition of "fish habitat" in s. 34(1). Thus, neither proof of actual harm to fish nor the assumption of such harm is necessary, as that fact is not material.

[11] Furthermore, the trial judge seems to confuse the issue of harm to fish and the issue of harm to fish habitat at para. 70 of his reasons for judgment. He observes that the expert evidence was limited to the effect of the logging on salmon and then states that there was no evidence adduced as to whether the effect on salmon was generalized to any or all other marine life in the river. This is not consistent with the test in Posselet.

[12] I am satisfied that the trial judge fell into error when he focused on the effect of logging on fish or on salmon. It is not the harm to fish that is prohibited by s. 35(1) of the Fisheries Act; it is the harmful alteration, disruption or destruction of the fish habitat.

[13] The learned trial judge did commence his conclusions, at para. 68, citing the correct test and noting that the experts differed as to whether the logging was a harmful “alteration, disruption or destruction of fish habitat”. Furthermore, he proceeded quite correctly at para. 72 when he stated that “[t]he Crown must prove that the logging was “harmful” to fish habitat.” However, it is clear that paras. 68 and 72 cannot be reconciled with paras. 70 and 73 of his reasons for judgment.

[14] After reviewing the transcript, I am satisfied that, if the learned trial judge had applied the proper test, which he articulated in paras. 68 and 72 of his reasons for judgment, he would have come to the same conclusion that the Crown had not proven its case beyond a reasonable doubt, based on the evidence before him.

[15] This was a case that, because of its very nature, relied on expert evidence. The learned judge was critical of the experts called both by the Crown and the defence. At paras. 24 and 25 of his reasons, the learned trial judge stated that “[b]oth marine biologists were qualified to give opinion evidence on whether the defendant caused alteration, disruption or destruction to fish habitat.” and stated that “[n]either was more or less qualified than the other.”

[16] He then went and dealt with the issue of bias and said the following, at paras. 26 – 32:

Mr. Runciman was an employee of the government ministry responsible for this prosecution. Mr. Phillips was hired by the Defendant. In this sense, neither had the appearance of being unbiased.

On cross examination Mr. Runciman often advocated for the position of the prosecution rather than directly answer questions. Mr. Phillips tended that way but to a lesser degree.

An advocate is a person who takes, promotes and defends a position. This implies a bias toward the pre-adopted perspective.

The ideal expert witness would accept the hypothetical given by the questioner and provide an opinion. His only allegiance would be to ascertaining the correct inference to be taken from a set of presumed facts.

He would not, as tended to happen here, attempt to impart other facts or factors into the question and give his answer conditional upon those additions.

Cross examination is a tool used to test the witness. Re-examination is the tool used to correct misconceptions that may arise from cross-examination. Both experts revealed biased inclination in taking on the role of re-examiner in cross-examination.

All the experts gave direct evidence of their observations at the area in question as well as opinion evidence based on some presumed as well as observed facts. Their evidence was thereby complicated by a consideration of the credibility of their observations well as opinions.

[17] The learned trial judge concluded that the Crown expert, Mr. Runciman, “often advocated for the position of the prosecution” and that Mr. Phillips, the expert called on behalf of the defendant, “tended that way but to a lesser degree.”

[18] It was, in my view, the bias of the expert witnesses and more particularly that of Mr. Runciman (who was an employee of Fisheries and Oceans Canada) that was fatal to the Crown’s case. Had the learned trial judge not erred in law, these deficiencies in the evidence would have still been present and would have still prevented the Crown from proving its case beyond a reasonable doubt.

[19] I therefore dismiss the appeal.

The Honourable Mr. Justice F. W. Cole

Citation:	R. v. Procter,
	2008 BCSC 19