According to Justice R.E. Powers, Conservation Officer Aaron Kilback was “unskilled, uninformed, incompetent and careless,” as well as reckless and poorly trained. But that wasn’t enough for him to conclude that Kilback was guilty of malicious prosecution in two unsuccessful cases which Kilback brought on behalf of British Columbia’s Minister of Environment, against hunter Ken Olynyk.
B.C. Supreme Court decision Olynyk v. Kilback, rendered in Kamloops last December, dealt with the alleged vendetta that CO Kilback had against Olynyk, dating back to 2004, when the hunter first went afoul of the law. The basis for the malicious prosecution court case was CO Kilback’s alleged motivation and means by which he proceeded with consecutive prosecutions against Olynyk.
Ken Olynyk had been a hunter for approximately 25 years. He valued his right to hunt, and relied partially on hunting to provide food for his family. The first case against him arose after he shot a cougar which had killed his dog. The problem was that he subsequently purchased a tag which would allow him to hunt cougar. He knew it was wrong. CO Kilback showed up a few days later and issued Olynyk a ticket, a warning slip, and notice of potential cancellation of a hunting license.
CO Kilback forgot to endorse the original ticket with the date he served Olynyk, so contacted him and arranged for Olynyk to come to the conservation office to get a new ticket and notice. In error CO Kilback dated the offences 2003, instead of 2004.
It became obvious that the date on the ticket was wrong, so Olynyk was acquitted. CO Kilback was embarrassed and humiliated. He eventually admitted that he often issued a new ticket to correct an error in a ticket already issued.
In front of the Justice of the Peace, CO Kilback made it clear that he would lay the charge again. Olynyk told him he did not think it was appropriate as he had already been acquitted. Olynyk was a hunter, not a lawyer, yet he knew about double jeopardy. CO Kilback subsequently admitted that he had limited prosecutorial experience and had received neither training nor direction as to how to proceed with a trial.
Shortly thereafter, on Father’s Day, CO Kilback attended at the Olynyk residence with a new ticket for the same offences. My Olynyk protested but CO Kilback left the ticket, and while doing so allegedly spoke nastily to him. Olynyk paid a lawyer to have the proceedings against him stayed by Crown counsel. Crown counsel wrote to CO Kilback making it clear that a person could not be re-charged in such circumstances.
CO Kilback prepared a RAP sheet indicating the charges against Olynyk, and fine amounts. Even in the face of the acquittal, he never changed the RAP sheet, which remained on record.
The second case against Olynyk arose the following year, after he had shot a deer. He believed that he and the deer were on Crown land. However they were both on land owned by a neighbour. The neighbour complained, so CO Kilback and another conservation officer issued a ticket to Olynyk, charging that he hunted on cultivated land without permission.
CO Kilback knew that his fellow officer would not appear at the trial. It appears that it was the second officer who took all the photos of the land and boundaries in dispute, even though CO Kilback stated that he took some of them. The person who takes photographs should be the one putting them into evidence at a trial.
CO Kilback had received information that the neighbour might not show up at trial. Her evidence was needed to prove that Olynyk was on her land without permission. You cannot rely on hearsay under such circumstances, in terms of an officer stating that the landowner said the permission to hunt on the land had not been given. You need the landowner.
In this second prosecution it also appeared that documents had been altered by CO Kilback. During testimony, when the discrepancy about documents became apparent, CO Kilback was anxious and embarrassed that he might make a fool of himself in front of an RCMP officer and the Justice of the Peace.
In the end, Olynyk was acquitted in the deer incident because the neighbour did not attend. Regardless, the evidence was shaky, without the other officer in attendance, and with problems concerning the photographs and the documentary discrepancy.
Did CO Kilback have a vendetta against Olynyk dating back to his embarrassment and humiliation arising out of the cougar incident? Did he deliberately serve the second ticket on Father’s Day to embarrass Olynyk in front of family? Was he acting maliciously by issuing a second ticket when he should have known the double jeopardy rule? Did he proceed with the cougar trial out of malice, knowing that the photographs were problematic without his fellow officer present, and the likelihood of not having the neighbour in attendance as the key witness regarding lack of permission to hunt? And what about altering documents?
Olynyk sued CO Kilback and the province in civil court, claiming damages for malicious prosecution. Justice Powers reviewed the allegations and defence. He noted that the elements of malicious prosecution are:
- the defendant was responsible for initiating and continuing proceedings against the plaintiff;
- proceedings are terminated in favour of the plaintiff;
- in instituting proceedings, the defendant acted without reasonable and probable cause, and;
- the defendant in instituting and continuing proceedings, did so with malice or a primary purpose other than that of carrying the law into effect.
The judge had no difficulty with the first two elements, since they were proven; Olynyk was acquitted with respect to both incidents, the cougar prosecution because of the error regarding the date, and the deer prosecution because the Crown could not prove lack of permission by the neighbour.
Reasonable and probable grounds have subjective and objective elements; actual belief in the guilt of the accused, and the belief must be reasonable in the circumstances. If there are no reasonable and probable grounds, the plaintiff then must prove malice in the form of a deliberate and improper use of the office of the Attorney General or Crown Attorney, inconsistent with the status of “minister of justice.” Malice cannot be inferred solely from a lack of reasonable and probably grounds.
The judge embarked upon a lengthy analysis of the two final elements, discussing the facts in light of the law. There were no reasonable and probable grounds for issuing a new ticket after the first acquittal. The judge concluded the CO Kilback was unskilled, uninformed, incompetent, careless and lacked training, but that lack of professionalism was not evidence of malice. Malice similarly was not proven as a result of other questionable and inappropriate actions of CO Kilback in the cougar case. Regarding the deer incident, after reviewing the evidence the judge once again was critical of CO Kilback, but was “not satisfied that he was acting out of malice so much as gross incompetence.” The judge was not satisfied that CO Kilback was prosecuting Olynyk for an improper motive.
Even though Ken Olynyk lost the civil case against Aaron Kilback and British Columbia, the judge did not award costs against him, stating that it was not surprising that CO Kilback’s actions appeared to be motivated by malice, given his lack of training by the Province of British Columbia.
As judges often do when they dismiss a lawsuit claiming damages, Justice Powers assessed the amount he would have awarded in favour of Olynyk had liability been proven in both incidents. The total payable would have been $35,548.01, plus interest and costs.
Counsel for Ken Olynyk has advised me that the plaintiff elected to not appeal the decision.
- Alvin Starkman, Oaxaca, Mexico
Alvin Starkman is a member of The Law Society of Upper Canada. However, this article is not intended to be and should not be relied upon as constituting legal advice or opinion. Alvin and Arlene moved from Toronto to Mexico in 2004. They operate Casa Machaya Oaxaca Bed & Breakfast (http://www.oaxacadream.com). Alvin also arranges small group Oaxaca culinary tours (http://www.oaxacaculinarytours.com).