What a judge agreed to in writing mattered more than what he said in court.
Self-represented hunter Richard Dawson Smith was found not guilty on Friday, Jan. 10 in Prince George Provincial Court of violating a judge’s order more than two years ago.
When Smith pleaded guilty Dec. 13, 2022 to hunting on cultivated land in November 2020, Judge Oliver Fleck fined him $1,200 and ordered him to re-take the provincially required Conservation Outdoor Recreation Education (CORE) safety and ethics course prior to March 31, 2023. That was the expiry date for his winter seasonal hunting licence.
Fleck signed the order, negotiated by Smith and Crown counsel, which allowed Smith to keep hunting.
But, in her oral judgment, Judge Cassandra Malfair said: “when articulating his reasons, Judge Fleck left out the qualification that the requirement to take the CORE hunting course before March 31 was tied to his ability to hunt after March 31.”
On Dec. 28, 2022, just over two weeks after the guilty plea, Smith hunted and shot a lynx. That led to a May 2024 charge for violating the court order.
Malfair said that Conservation Officers had learned about Fleck’s order and sought to have it amended. A new form of the order, without reference to Smith hunting after March 31, 2023, was drafted and submitted to Fleck without notice to Smith.
The amended order was filed in September 2023. Smith had retaken CORE in April of that year, rather than by the end of March, due to course availability.
“I am satisfied Mr. Smith has proven, on a balance of probabilities, the defence of honest but mistaken belief of facts,” Malfair said. “In fact, it is my belief that Judge Fleck simply misspoke when he orally articulated the CORE course order and did not intend to change the sentence proposed by the Crown.”
Malfair said it was clear that Fleck intended to impose the sentence negotiated between the parties. Had he rejected their joint submission, they would have been allowed to make further submissions. Also, if Fleck had intended for Smith to cease hunting until retaking CORE, he would not have included the specific date.
“I find it reasonable that a person in Mr. Smith's position would believe the order he was bound by was the one reflected in the written document signed by the judge, which was the subject of the joint submission in which he'd been provided,” Malfair said. “Mr. Smith had never been put on notice that there was a discrepancy between what the judge had said and what was recorded in the written form of order.”
