[1] The petitioner seeks Judicial Review of a decision of the Environmental Appeal Board made May 28, 1998. That decision upheld a decision by the Deputy Director of Wildlife cancelling the petitioner's hunting and firearms licence and fixing an ineligibility period of six years.

[2] The events giving rise to this ruling occurred on and after October 22, 1993. Mr. Schreiber reported to the Nelson Conservation Office that on that date he had killed a Rocky Mountain Bighorn ram at Dry Creek near Sparwood. He presented the ram's head for inspection as required by the Wildlife Act.

[3] On October 22, 1993 two hunters named Engel and Whiting had observed Mr. Schreiber in the area of the Line Creek Mine some 7-10 kilometres away from Dry Creek. Hunting sheep in that area was prohibited. They reported what they had seen to Conservation Officers in the East Kootenay, who contacted the Nelson Office. They were told that Mr. Schreiber had been in. The Conservation Officers investigated further and on November 3, 1993 seized the ram's head from a taxidermist Mr. Schreiber had engaged.

[4] Searches of Line Creek in November of 1993 yielded nothing. On June 29, 1994, however, a kill site was discovered within the Mine area. The authorities took samples from that carcass and from the sheep's head they had seized and sent them to a lab in Oregon for DNA analysis. On October 31, 1994 that lab reported that the samples from the kill site and the samples from the head did not come from the same animal.

[5] The Conservation Office followed this up by sending additional samples to the Wildlife Conservation Genetics and Forensic Laboratory at the University of Alberta. On February 23, 1995 this lab reported a match. In a letter dated June 30, 1995, the DNA Unit Co-ordinator in Oregon acknowledged the superiority of the University of Alberta method in samples that may have been degraded or contaminated.

[6] As a result of this investigation, Mr. Schreiber was charged with a number of offences under the Wildlife Act. On November 28, 1995, the Honourable Judge Carlgren, of the Provincial Court, convicted Mr. Schreiber on three counts that turned on a finding, beyond a reasonable doubt, that "Mr. Schreiber shot the Big Horn sheep, which he reported in Nelson, within the Line Creek property on October the 22nd, 1993".

[7] These counts were:

Count 1: That he did hunt wildlife at a time not within the open season, contrary to s. 27(1)(c) of the Wildlife Act.

Count 3: That he did have dead wildlife or part of it in his possession except under a licence or permit or provided by regulation, contrary to s. 34(2) of the Wildlife Act.

Count 5: That he did knowingly make a false statement in a book, record, certificate, report or return made, kept or furnished under the Wildlife Act or the regulations, contrary to s. 84(1)(c) of the Wildlife Act.

He was also convicted of one count contrary to the Health Safety and Reclamation Code for Mines in British Columbia, of entering a mine site at a point that was not a recognized means of entry.

[8] These convictions were appealed to Supreme Court. On December 20, 1996 Mr. Justice Melnick handed down Reasons in which he allowed the appeal respecting the three counts related to killing within the Mine area. He did not disturb the conviction respecting Mr. Schreiber's entry. Mr. Justice Melnick directed a new trial on the counts he set aside.

[9] In his Reasons Mr. Justice Melnick dealt carefully, and at length, with the scientific evidence that had been proffered at the Provincial Court trial. He summarized his analysis:

[10] The Crown ultimately declined to proceed with a new trial. In preparation for a new trial, however, some effort had been put into addressing the evidentiary inadequacies identified by Mr. Justice Melnick. The outcome of these investigations were included in a letter from Conservation Officer Frank de Boon to the Director, Wildlife Branch, asking the Director to consider an extended licence suspension. The letter read, in part:

[11] This was followed by a notice dated October 24, 1997 to Mr. Schreiber from the Deputy Director:

[12] There was a hearing, and on February 24, 1998 the Deputy Director of the Wildlife Branch directed that Mr. Schreiber's hunting and firearms licences be cancelled with a six year period of ineligibility to obtain or renew them.

[13] Mr. Schreiber appealed this decision to the Environmental Appeal Board. The authority of the Board is found in s. 11 of the Environmental Management Act, and s. 101.1 of the Wildlife Act. Material portions of the these sections establish that the Board may conduct an appeal by way of a new hearing and that it may:

(a) send the matter back to the regional manager or director, with directions,

(b) confirm, reverse or vary the decision being appealed, or

(c) make any decision that the person whose decision is appealed could have made, and that the board considers appropriate in the circumstances.

[14] On May 28, 1998 the appeal was heard. Mr. Schreiber was represented by one R.W. Khadikin. The Board sat as a single member panel, chaired by Jane Luke.

[15] The Panel referred to the power exercised by the Deputy Director under s. 24 of the Wildlife Act:

24(1)In this section, "convicted", includes the granting of an absolute or conditional discharge.

(2) If a person holding a licence or permit issued under this Act or the regulations is convicted of an offence under

(a) this Act, other than section 22, subsections (6), (7) or (14) of this section, sections 26(1)(a), (e), (f) and (g), 28, 81 and 82, or section 3 of the Firearms Act.

. . .

or for any other cause considered sufficient by the director, and after providing an opportunity for the person to be heard, the director may suspend the licence and all rights under it for a period that to the director seems fit, or may cancel it.

(3) On notice of a suspension or cancellation under subsection (2), the person must immediately deliver the licence or permit to the director.

(4) If a licence has been suspended, the director must return the licence to the person at the expiration of the period of suspension.

(5) If a licence is cancelled, the director may order that the person is ineligible to obtain or renew a licence for a period that to the director seems fit within the prescribed limits and the director must inform the person of the period of ineligibility.

[16] The Panel identified the issues in the following terms:

[17] The Panel found that the Oregon DNA evidence was before the Deputy Director; that the court proceedings were not determinative of the Deputy Director's consideration of the matter; and that the penalty imposed was reasonable and proper.

[18] Mr. Schreiber's petition for Judicial Review of this decision identifies the following grounds:

(a) The learned Environmental Appeal Board, failed to extend the principles of audi alteram partem to the Appellant with respect to the scientific DNA evidence.

(b) The learned Environmental Appeal Board, erred in making factual conclusions contrary to those of a learned Supreme Court Judge, when no basis existed for such factual conclusions.

(c) The learned Environmental Appeal Board, failed to consider the fact that the Appellant, remained presumed innocent of all charges and violated his rights under Section 15 [sic] of the Charter of Rights and Freedoms.

(d) The learned Environmental Appeal Board erred in failing to request that the matter be disposed of in the Appellant's favor because of the delays, and in view of the excessive expense put to the Appellant by the Crown using two different processes and not following through on the first process, when the Crown was bound to lose in court.

(e) The learned Environmental Appeal Board, considered extraneous facts, facts not available to the Deputy Director, in reviewing facts made a finding of facts outside of its jurisdiction and perverse to the evidence.

(f) The Penalty imposed is harsh and uncalled for, and constitutes a double penalty.

[19] I pause to note that, although the issue is not included in these grounds, in oral submissions counsel seemed to renew the suggestion that somehow the criminal proceedings should, in effect, oust a hearing before the Deputy Director. That is not the law as the Panel noted, citing Hansen v. British Columbia (Ministry of Environment and Parks, Fish and Wildlife Branch, Northern Region), [1987] B.C.J. No. 1676 (Q.L.) (S.C.). That case is authority for the proposition that, as Mr. Justice Legg (then of the Supreme Court) observed:

[20] The substance of Mr. Schreiber's complaint on the first ground of the petition, in paragraph (a), appears to be that, as he swore in the affidavit filed with the petition:

4. At no time, was I afforded an opportunity, to have my own DNA samples taken of the seized evidence.

5. At no time, was I afforded the opportunity to use the Crown's scientific experts, including experts used by the Crown from the United States, to answer the case brought by the Deputy Director.

[21] To the extent this argument was before the Panel it was addressed as follows:

[22] Mr. Schreiber's counsel before me has been quite unable to identify any procedural unfairness. The argument seems to be that the Board should have anticipated the way he would have liked the hearing to be conducted. There was nothing showing any refusal or interference by the Panel in the conduct of the case. 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. When Mr. Schreiber says he was "not afforded an opportunity" he apparently means that original evidence was not generated on his behalf by the Environmental Appeal Board. This is not their obligation. At most, it appears that Mr. Schreiber may not have availed himself of the opportunities available in a de novo process. This does not give rise to a claim of procedural error on the Board's part (see: Vanton v. British Columbia Council on Human Rights, [1994] B.C.J. No. 497 (Q.L.) (S.C.)).

[23] The issue of delay identified in paragraph (d) of the grounds in the petition is addressed by the Panel at page 8 of the Reasons in the following terms:

[24] Mr. Schreiber's counsel did not refute the observation, underlined above, that the delay pending conclusion of the appeal of the Provincial Court trial was requested by Mr. Schreiber. This somewhat qualifies the assertion in his affidavit that "considerable delay has occurred that was not occasioned by any action on my behalf".

[25] The short answer to this argument is that there is no principle of law that renders delay, without more, grounds for a stay. In Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 (S.C.C.), Barstarache J., writing for the majority, made the following observations:

[26] Here no prejudice leading to unfairness was identified by Mr. Schreiber. At least part of the delay was at his request and was for the sensible reason that the outcome of the criminal process ought to be accommodated. There is accordingly no merit to this argument.

[27] Counsel did not particularly press the "excessive expense put to the appellant by the Crown using two different processes and not following through on the first matters when the Crown was bound to lose in Court", ground found in paragraph (d) of the petition. That argument confuses the function of the Director with that of Crown Counsel. In the unsupported assertion that "the Crown was bound to lose" it apparently implies that the decision of the Deputy Director was improperly motivated. There is no evidence that, apart from properly taking account of the outcome of the criminal proceedings, the Deputy Director proceeded in a manner or in circumstances that could be criticized in those terms.

[28] This brings me now to consideration of the "evidentiary" grounds upon which Mr. Schreiber relies. Specifically these are grounds (b) and (e) of the petition:

(b) The learned Environmental Board, erred in making factual conclusions contrary to those of a learned Supreme Court Judge, when no basis existed for such factual conclusions.

(e) The learned Environmental Appeal Board, considered extraneous facts, facts not available to the Deputy Director, in reviewing facts made a finding of facts outside of its jurisdiction and perverse to the evidence.

[29] The Deputy Director made, among others, the following material findings of fact:

• Thomas Schreiber did hunt and kill a Bighorn Sheep on October 22, 1993.
• The Supreme court accepted that the DNA analysis provided by Dr. Coffin should not be excluded. That evidence showed a DNA match between the sheep harvested by Thomas Schreiber and the sheep carcass found at a kill site within Line Creek Mine closed area.
• The Supreme court found that the evidence of Dr. Strobeck related to the statistical probability that the DNA match means that the samples were from the same sheep was insufficient and should not have been relied upon without further corroboration. This decision led to the quashing of the Wildlife Act convictions against Mr. Schreiber and the Supreme court advising that the matter should be retried.
• Exhibit 9 refers to DNA analysis of Bighorn Sheep from the Line Creek area. This analysis of sheep in the region of the kill site shows that the possibility of a DNA match coming from two different individuals would have odds of around 1 in 57,000,000. This information was not presented in the Provincial court trial or Supreme court appeal.
• The kill site identified by Thomas Schreiber during his compulsory inspection in October 1993 is approximately 8-10 kilometers from the kill site in the Line Creek closed area from which the DNA match was made.
• Thomas Schreiber has already served a 1 year hunting licence cancellation and period of ineligibility with respect to this incident.
• As found by the Supreme court, Thomas Schreiber did commit trespass and was inside the Line Creek closed area while in possession of hunting gear including a firearm.
• The issue of the pelvic bone being seen by the Ingham's and a pelvic bone being found at the Line Creek closed area kill site is not resolved in favor of Mr. Schreiber, when in his own statement given in November 1993, he admits de-boning the sheep at the kill site and bringing only the meat home.

[30] Mr. Schreiber did not specify in his materials which of these findings he thought were unjustified. It was evident in oral submission that one of the objections was that the Deputy Director had, in his terms, simply adopted findings made by the Supreme Court judge. I do not think that is the case. The Deputy Director essentially commented on what the Supreme Court decided relative to the DNA issue, identifying what it had accepted and rejected, and pointing out the evidence he had that had not been before the Supreme Court judge. While the Deputy Director did not specifically say that he accepted the evidence showing a DNA match (the University of Alberta evidence) it was a rather obvious inference from the material he had, which included the Oregon lab's explanation as to why the results might be different. The Deputy Director also accepted the recently generated and uncontradicted "probability" evidence, the absence of which was a significant factor in Mr. Justice Melnick's decision to direct a new trial on the affected counts.

[31] As I apprehend Mr. Schreiber's argument, he seems to be saying that given the inconsistencies in the DNA lab results, no reliable inference could have been drawn by the Deputy Director in the absence of further testing or of cross-examination of representatives of the testing agencies. I do not mean to be repetitive, but it must again be noted that when Mr. Schreiber was before the Deputy Director he did not call evidence or seek cross-examination of these individuals.

[32] When the Panel considered the evidence it made the following observations:

[33] At this stage of the proceedings, despite the complaints in his Notice of Appeal, Mr. Schreiber did not produce any evidence to refute the case against him. The Panel found that the Deputy Director had an evidentiary basis for his conclusion that the carcass that was at the Mine site and the head in Mr. Schreiber's possession were from the same animal and that Mr. Schreiber had misled the Conservation Office in asserting that that animal had been killed in a legal area.

[34] I am quite satisfied that the Panel was correct in its finding that the Deputy Director had a solid evidentiary basis for ruling as he did, particularly bearing in mind that the burden before him was that of a balance of probabilities. Moreover, on that occasion, despite his complaints, Mr. Schreiber placed nothing new before the Panel that ought to have persuaded it to reach a different conclusion.

[35] Respecting ground (c) that:

(c) The learned Environmental Appeal Board, failed to consider the fact that the Appellant, remained presumed innocent of all charges and violated his rights under Section 15 [sic] of the Charter of Rights and Freedoms.

Nothing in argument or in the materials before me suggests that this provision of the Charter was violated in any particular. Respecting "the presumption of innocence", Mr. Schreiber was afforded a fair hearing and the appropriate burden of proof was applied. There is no merit in that ground.

[36] Mr. Schreiber asserts in paragraph (f) that the penalty is "harsh and uncalled for and constituted a double penalty". He also submits that he has been penalized twice.

[37] Mr. Schreiber's argument respecting double punishment is an offshoot of the submission answered by Hansen (supra). The regulatory scheme administered by the Director is a distinct process from prosecution under the relevant statute or regulations. The fact of a conviction may be evidence on a hearing before the Director. The fact that there was no conviction does not estop a consideration of the facts in a hearing under the regulatory scheme of the Act.

[38] In this case the Appeal Board considered the Deputy Director's reasons for imposing the penalty of a prohibition from hunting for at least six years in the following terms:

[39] Mr. Schreiber's counsel argued that in the recitation of factors the Deputy Director considered, certain positive considerations were not included. These were not particularly identified in the materials, including the affidavit of Mr. Schreiber. There is therefore no evidence before me that the Panel ignored material evidence relating to penalty. There is no suggestion that the factors cited by the Panel or the Deputy Director in arriving at penalty were inappropriate.

[40] I think the standard of review in a case of this kind, where the errors alleged to have been made in assessing the evidence are of a technical or legal nature, is essentially that of "correctness". There is nothing particularly "specialized" about the exercise that faced the Panel in this particular instance. I have found no reviewable error in the approach taken by the Panel.

[41] With respect to penalty, I am of the view that somewhat more deference ought to be accorded to the decision of the Deputy Director who is charged with administering a specialized statutory regime. In weighing factors such as deterrence, and what was termed "hunting ethics", the Deputy Director is in a better position than this court to make an appropriate determination. I think the decision of the Panel affirming that of the Deputy Director on penalty would have to be shown to be unreasonable for this court to properly intervene. In this case Mr. Schreiber's activities were not only unlawful but were then compounded by his attempts to mislead the authorities and by his evident lack of remorse. The Deputy Director considered specific deterrence to be an important factor. I am quite unable to find on the material before me that his findings were unjustified or that the penalty was unreasonable.

[42] This Petition for Judicial Review of the May 28, 1998 decision of the Panel of the Environmental Appeal Board cancelling Thomas Schreiber's hunting and firearm's licences and fixing an ineligibility period of six years is therefore dismissed.

"T.M. McEwan, J."
The Honourable Mr. Justice T.M. McEwan