Fine lowered in Whistler bear feeding case as judge faulted for insisting on stiffer penalty

A B.C. Supreme Court judge has drastically lowered the penalty for a Whistler woman who admitted to feeding black bears on her property in violation of the province's Wildlife Act.

Zuzana Stevikova pleaded guilty last year to putting out food for the animals — which were later euthanized after a complaint to conservation officers — in the expectation that she'd have to pay a $10,500 fine jointly recommended by her lawyer and the Crown.

But the provincial court judge who heard the case said the proposed penalty was "unhinged" from the circumstances of the offence — slapping Stevikova with a fine nearly six times that amount instead.

Last week, a B.C. Supreme Court judge substituted the originally proposed fine for the much higher levy — faulting the lower court judge who first ruled on Stevikova's case for introducing her own findings of fact into the case.

"[The provincial court judge] made findings of fact which were not supported by the agreed statement of facts, would be difficult for the Crown to prove or were not based on evidence but rather her own judicial notice," Justice Miriam Gropper wrote in the decision lowering the fine.

"She then fashioned a sentence based on her extrapolation of the facts before her. She erred in applying the stringent test set out in those cases."

Apples, carrots, pears, eggs

Gropper's decision is the latest twist in a case which has received extensive media attention — a fact taken into account by the Crown and defence when they crafted the original sentence.

According to an agreed statement of facts, witnesses saw apples and carrots spread out over the property shared by Stevikova and her husband during the summers of 2017 and 2018.

Bears were observed "coming and going from the property." Stevikova — who was observed calling one bear 'Lilly' — "appeared to be comfortable with them."

And staff members at a nearby grocery store told conservation officers the couple bought up to 10 cases of apples, 50 pounds of carrots and pears and up to 15 dozen eggs a week.

After an investigation, two cubs and a sow were killed — a decision that factored into the case because of ongoing controversy about the conservation office's practice of euthanizing bears.

'A fed bear is a dead bear'

The original penalty was drafted to include fines of $500 for each of the two counts to which Stevikova pleaded guilty and a $9,500 donation to the Habitat Conservation Trust Foundation.

But when she was presented with the proposal, North Vancouver provincial court Judge Lyndsay Smith said that the proposed sentence "would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system."

She found the deaths of the bears, in particular, to be "so sorrowfully foreseeable to anyone with a modicum of sense and any interest in or experience of the British Columbia wilderness."

In a move criticized by Gropper, Smith took "judicial notice" of messaging throughout Whistler warning that "a fed bear is a dead bear" — a means for the judge to rely on a fact not introduced by defence or Crown in her decision-making.

"Here, the judge apparently took judicial notice of a message on a sign that she had observed in Whistler, at an unknown place and time," Gropper wrote.

Gropper pointed out that the conservation office's intervention doesn't always result in the death of a bear — meaning a fed bear is not always a dead bear.

"The inferences regarding the fitness of the sentence flowing from the judicial notice are, therefore, also incorrect," she said.

A decision 'unhinged' from circumstances

In order to reject a joint proposal, a judge has to find the deal in question so "unhinged" from the circumstances of the case and the offender that "reasonable and informed people" would believe "the proper functioning of the justice system had broken down."

By replacing the proposed $10,500 fine with a $59,000 penalty, Smith strayed outside the range set in similar cases — including one notorious situation in which a Whistler resident was fined $3,000 for feeding wildlife as entertainment for guests.

The fine, in that case, was one of the highest under the Wildlife Act; Gropper noted that it was three times the amount Crown and defence originally agreed on for Stevikova.

"Ms. Stevikova received a sentence that was twenty times higher," Gropper wrote.

"In this context, it is difficult to say the proposed sentence was so "unhinged" as to bring the administration of justice into disrepute."

Gropper also said Smith appeared to view Stevikova's "financial position as a reason to increase the penalty."

The lower court judge said the "exclusive nature of the neighbourhood" where the offences happened made it clear her "financial reality" was not reflected by her supposed $36,000 annual income.

"The sentencing judge has erred in principle by employing irrelevant factors and overemphasizing relevant factors," Gropper concluded.

"The sentence imposed was far from the range of sentences imposed for similar offences and facts."