Ian Mulgrew: Who shot the moose? Who's asking?
By Ian Mulgrew, Vancouver SunDecember 21, 2009
Vancouver Sun columnist Ian Mulgrew
Photograph by: ., .Hard to believe a conservation officer's standard query would confuse a trial judge, baffle an appeal justice and require the Court of Appeal to figure out if it's okay to ask the question.
As a result, a Vancouver Island man will get a new trial for hunting out of season half a decade ago.
Ernest Abraham Rice had successfully argued during his first trial that being forced to tell the game warden he killed a cow moose violated his constitutional right to be silent.
But Justice Nicole Garson, supported by colleagues Risa Levine and David Tysoe, said the trial judge and the initial appellate justice in the case misunderstood the nature of the question.
Under the provincial Wildlife Act, Rice had no right to silence nor to consult with a lawyer out there in the bush when asked about a recently killed carcass.
A conservation officer stopped Rice and two other aboriginal men on Sept. 13, 2004, in a pickup off Highway 97 about a half-hour from Kamloops. There was a dead cow moose in the truck bed.
"Who shot it?" the officer asked.
Rice proudly replied: "I did."
And, with that confession, he was charged.
The provincial court trial judge, however, wouldn't allow the self-incriminating statement to be entered as evidence because the officer had not warned Rice of his charter right to remain silent. He acquitted Rice.
The Supreme Court of B.C. justice who heard the Crown's appeal upheld the acquittal, saying Rice should have been told he had a right to counsel before answering the question.
But the province's highest bench said this week, Whoa!
Like fishermen, hunters make a conscious choice to participate in an activity that is extensively regulated for the purposes of conservation and safety.
Just as commercial fishermen are legally required to complete hail out and quota reports that later can be used to prosecute them, so, too, are hunters legally compelled to report their kills.
Justice Garson explained that the Supreme Court of Canada has distinguished between criminal investigations and administrative schemes designed in the public interest that compel self-reporting.
Charter rights may have different scope and implications in a regulatory context than in a truly criminal one, and constitutional standards developed in the criminal context cannot be applied automatically to regulatory offences.
Different levels of Charter protection apply in those situations, she said, and, even under the same statute, different levels of protection may apply depending on the circumstances.
The courts, the justice wrote, must guard against creating procedural shackles for regulatory officials that are only appropriate in criminal investigations.
The high bench said four factors must be present to make a statement inadmissible: an element of coercion; the existence of an adversarial relationship between the state and the accused; the risk of unreliable confessions, and consideration of whether the use of the statement would increase the likelihood of abusive conduct by the state.
"It cannot be abusive for the state to prosecute illegal hunting on the basis of true reports that hunters are required to complete as a condition of their voluntary participation in hunting," Justice Garson said.
"This questioning did not engage Mr. Rice's [constitutional] rights."
No doubt there would be a line, she added, in some investigations under the Wildlife Act where a conservation officer's inspection function may become a criminal investigation, but that line was not crossed.
It's okay for them to ask hunters, "Who shot it?"
imulgrew@vancouversun.com© Copyright (c) The Vancouver Sun
Vancouver Sun columnist Ian MulgrewPhotograph by: ., .
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