A decision was handed down in BC Supreme Court on December 1st, 2010 that caught my attention. A man from near where I live had sued Conservation Officer Aaron Kilback and the Province of British Columbia for malicious prosecution and abuse of power.
It all started back in 2004 when Ken Olynyk shot and killed the cougar that had just killed his dog. Cougars killing dogs and other animals is a relatively common occurrence in this neck of the woods. I had one tear the throat out of my pitbull about six years ago. Unfortunately I wasn’t able to shoot the cougar that did it. I came home to find my dog dead in the yard.
So I can sure empathize with Mr. Olynyk and his killing the cougar that killed his dog.
Someone called the wildlife branch and reported the cougar kill to them. Conservation Officer Kilback responded to the call and went to Mr. Olynyk’s home. According to Mr. Olynyk, C.O. Kilback was very annoyed. He seized the cougar hide and wrote a ticket, threatening to cancel Olynyk’s hunting license if he failed to pay the ticket OR so much as dispute it.
This is where, in my not-so-humble opinion, the true colors of C.O. Kilback started to shine through.
He’s “the law” and you will do what he says, or else.
It’s that kind of attitude from people in a position of authority really need to keep in check. It does nothing to help them do their jobs. In fact it does the exact opposite.
Was Olynyk wrong for killing the cougar? Perhaps technically, yes. He didn’t have a cougar tag at the time he shot the cougar. However, it is perfectly legal to destroy predatory animals that are killing farm animals.
Not that C.O. Kilback cared. He was the one with power, and he was going to exert it, common sense be damned.
In fact it’s even legal to have a loaded firearm leaned up against the wall near the door for just such occurrences.
Not that the police will ever tell you that, of course. They’ll charge you for unsafe storage instead. It’s the way things work in Canada right now.
But I digress…. (again)
Mr. Olynyk DID dispute the ticket, and he won. Turns out that C.O. Kilback was incompetent. (The judge’s words, not mine!) He’d filled out the date wrong on the ticket, and therefore the case was tossed out. Because of Kilback’s incompetence. (Again, the Judge’s words, not mine.)
From the written ruling:
“Mr. Olynyk argues this is evidence of intentionally misleading the Court in order to obtain a conviction when he knows he could not otherwise obtain one. The defence [C.O. Kilback] argues that he was simply doing his best. The corollary to that is his best is grossly incompetent.” [page 12]
“I find that he was unskilled, uninformed, incompetent and careless.” [page 25]
“CO Kilback may have been rude or dismissive of Mr. Olynyk, but that is evidence of lack of professionalism more than it is evidence of malice as required for the tort of malicious prosecution.” [page 25]
“I find that the plaintiff has proven that CO Kilback is poorly trained, careless, reckless, and incompetent, but has not proven malicious prosecution…” [page 25]
“However, I am not satisfied that he was acting out of malice so much as gross incompetence.” [page 26]
Now it didn’t help that Mr. Olynyk decided to push back a little. He asked if he could get the cougar hide back! Probably not the best thing to do… poking a conservation officer in the eye like that, but he did. It still makes me laugh, actually. You’ve got to admire his cheekiness, if nothing else!
As a result, C.O. Kilback threatened to re-charge Mr. Olynyk for the same [alleged] crime.
Anyone with a grade five education knows you can’t charge someone for the same offence twice. It makes me wonder if C.O. Kilback made it that far, because that’s exactly what he did. He charged Mr. Olynyk with the same [alleged] crime twice.
It seems C.O. Kilback is low on tact too. He showed up at Mr. Olynyk’s home on Fathers Day of all days and wrote him up a second ticket for the same offense.
That’s classless. His excuse, according to court documents, was that he know Mr. Olynyk would be home that day.
Who gives a damn. Pick another day. Don’t be a classless jerk. I don’t care how pissed off you are, or how stupid you feel for screwing up the first time.
Obviously Mr. Olynyk objected to the re-ticketing, and explained to C.O. Kilback that he’d already been acquitted, so he couldn’t be charged again.
Kilback didn’t care. If Mr. Olynyk is to be believed (and I think he is) Kilback said “then this is null and void.”
But not, of course, without having to go back to court, pay more lawyers fees and all the financial punishment that goes with it.
Which, I imagine, was the entire point for C.O. Kilback. If he couldn’t win, he’d at least make Mr. Olynyk pay.
Which brought on the civil suit by Olynyk alleging malicious prosecution.
Seems like a reasonable enough conclusion to come to.
If I’d been confronted by the likes of C.O. Kilback, after having been acquitted, even if it was by his own incompetence, I’d not have taken kindly to his crap either.
To quote The Honourable Mr. Justice Powers:
“I find that CO Kilback was embarrassed and humiliated by the fact that he had made this mistake on the ticket.”
Yeah, it would seem so.
The following year, Mr. Olynyk shot a deer near his neighbour’s property. The neighbour complained to the Wildlife folks, and I’ll bet you can guess who they sent to deal with the complaint.
You got it.
C.O. Kilback charged Mr. Olynyk with hunting on cultivated land without permission.
The case goes to court.
While the judge was quite clear in saying he did not find that C.O. Kilback perjured himself, I think he was being kind. Especially given some of the other comments he made. Kilback [apparently] changed email messages to hide the fact he’d lost evidence photos once already, and didn’t want the court to know about it.
I can’t say that he lied, since the judge said he didn’t lie, but what he did do, according to the judge, was say that he’d taken the evidence photos when they were in fact taken by another conservation officer.
The rest is a long story around all the crap that went on in court.
Cut to the judgment.
“I find that CO Kilback is a very poor witness. The plaintiff argues that he is simply dishonest. I find that in general CO Kilback has a poor memory of events, and when asked a question for which he does not remember, or where he does not remember something clearly, he tries to reconstruct events based on what he thinks might have happened.”
“ The defendant argues that Mr. Olynyk has made serious allegations against CO Kilback, calling into question his honesty, integrity, and professionalism, and that was done without any convincing evidence. This includes the allegation of perjury.The defendant argues that civil litigation should not be used as a means to harass law enforcement officers when there is no basis for a claim. CO Kilback argues that he should be entitled to special costs.”
The Honourable judge’s response to Kilback’s nonsense is as perfect as it is brief.
He goes on to write:
“Although I found that the actions of the defendant did not amount to
malicious prosecution or misfeasance in public office, they were certainly the result of lack of proper training which is the responsibility of his employer, the Province of British Columbia as represented by the Minister of Environment, incompetence, recklessness, and a failure to make proper inquiries, particularly with regard to the issue of double jeopardy when the issue was clearly brought to his attention. It is not surprising that the defendant’s actions appear to be motivated by malice rather than a desire to simply carry out his responsibilities as a conservation officer or agent of the Crown in dealing with the prosecutions.”
He ends his ruling with this:
“Awarding costs to the defendant would simply reward his employer’s decision to save money by having poorly trained and unqualified individuals prosecuting offences of this nature, and would simply reward or compensate the defendant himself for matters that arose from his own carelessness or recklessness, or want of due diligence. In my opinion, that would be an unjust result. Therefore, each party shall bear their own costs.”
If you’re interested, you can read the entire written ruling in Olynyk v. Kilback, 2010 BCSC 1694 on CANLII.org.
And when you’re out hunting in BC Region3, make sure you’ve got your papers in order. You wouldn’t want to waste a lot of time in court because you ran into C. O. Kilback, would you?