Crown wanted plea deal in Whistler bear feeding case to avoid 'controversy' over killings

There are many reasons the Crown might prefer a plea deal over a trial: sparing the court time and money; saving prosecutors from proving a case by calling witnesses; giving a remorseful defendant a chance to atone.

Avoiding public debate isn't typically one of them.

But according to court records, a B.C. Crown lawyer who prosecuted a woman fined $60,000 earlier this month for feeding bears in Whistler argued that one benefit of a joint proposal by Crown and defence for a much smaller fine was to avoid the "controversy" that might have come by airing the facts in public.

Conservation officers killed three bears —a sow and her two cubs — because of the woman's actions.

"There is a live controversy concerning the practice of euthanizing bears by the Conservation Officer Service," Crown prosecutor Nadia Farinelli told North Vancouver provincial court Judge Lyndsay Smith in submissions to defend the Crown's position last May.

"This controversy was discussed between counsel prior to the plea, and the Crown had concerns that a trial and even the sentencing hearing might be a platform to criticize the COS."

Feeding the bears so people 'would not complain'

Smith ultimately rejected the $10,500 fine suggested by the Crown and defence.

At one point she said she was concerned the proposed penalty was "so unhinged from the circumstances of the offender and the offence that its acceptance would lead reasonable and informed persons ... to believe that the proper function of the justice system had broken down."

Her decision — posted last week — combined with audio recordings of the proceedings obtained by CBC provide insight into a unique set of proceedings that saw the judge argue that more was needed to protect the public interest.

It's rare for a judge to reject a joint proposal for sentencing in any kind of case, but Smith said greater emphasis needed to be placed on the "key" component of general deterrence required of environmental penalties. 

Zuzana Stevikova pleaded guilty to two charges under the Wildlife Act after admitting to feeding bears in the summer of 2018 on the Whistler property where she and her husband split their time between Canada and Switzerland.

According to Smith's decision, Stevikova bought bulk produce for the animals from a nearby grocery store: "including up to 10 cases of apples, 50 pounds of carrots and pears and up to 15 dozen eggs, all on a weekly basis."

Conservation officers confronted her and her spouse — who was originally a co-accused — after receiving complaints.

Stevikova, who was heard calling one of the bears Lilly, was concerned the bears were "skinny."

After consulting with someone she considered an "expert," instead of the provincial wildlife service, she told a witness "she was feeding the bears so that people in Whistler would not complain about them and the conservation officers would not kill them."

'There is pressure on them to change'

Last February, the judge told Crown and defence she didn't think the joint submission was up to snuff.

A hearing was scheduled for May at which both sides detailed the thinking behind the original proposal.

At that time, Farinelli said the Crown was concerned the killing of the bears might "sidetrack" the case — if it went to trial.

"The trial would offer a means through which advocacy groups and those in favour of challenging the COS approach would see it as an opportunity to criticize the Conservation Officer Service for doing its job," she said.

In May, Stevikova's lawyer also raised the possibility a trial might turn into a debate on the actions of conservation officers.

"In terms of harm done, perhaps those bears didn't need to be killed. There's an argument there" Greg Diamond told the judge.

"This was all avoided, criticizing the Conservation Service and potentially that becoming an issue to distract from the real issues at hand. We've avoided all that through a joint submission and in my respectful submission, that's a real benefit to the system."

In her final decision on sentencing, Smith says she didn't consider avoiding controversy to be a mitigating factor in coming to the conclusion to reject the lower penalty.

"I do not agree that avoiding that issue from arising is of particular benefit to society," Smith wrote.

"The Courts do not shy away from controversial matters, and a trial judge has the ability to curtail irrelevant issues from taking over proceedings."

Ellie Lamb, director of community outreach with the Get Bear Smart Society, believes the three bears did not need to be killed.

Lamb, who is also a part of Whistler's Bear Advisory Committee, says the Crown should not be trying to sidestep public debate over the role of the conservation service.

"I don't mind a platform to finally get this aired out, because I'm really over-the-top done with hearing about bears being killed in the unfair ways that they're being targeted by our very own government, and it's time that we do air this," Lamb told the CBC.

"It shows that there is pressure on them to change."

'A disposition in the public interest'

The benefit of avoiding controversy wasn't the only issue raised by the lawyers arguing in favour of the joint submission.

Both Crown and defence said Stevikova shouldn't be punished for having the means to live in Whistler. They also said she had been impacted by media coverage of the case. 

Smith's decision examined Stevikova's "high" culpability, the harm done to the bears and the "grave risk" her actions posed to residents and visitors to Whistler.

"The messaging that people must not feed bears and must not leave food and other attractants accessible to bears appears throughout Whistler and on the highway leading to it," Smith wrote.

"That is the contextual reality in which these offences were committed."

The Conservation Officer Service would not comment on the decision beyond pointing to an earlier Facebook post noting the "precedent-setting" nature of the $60,000 fine, the highest overall penalty imposed under the Wildlife Act.

"Conservation officers were forced to put down three bears that were repeatedly visiting the area, causing property damage and exhibiting highly habituated behaviour showing no fear of people," the statement said.

In an email, Crown spokesperson Dan McLaughlin said the joint submission fit with B.C. Prosecution Service policies to "engage in early, principled and informed resolution discussions in our efforts to achieve a disposition in the public interest."

"The resolution in this case allowed for an appropriate sentencing position and ensured that the agreed upon facts accurately set out the provable offending behaviour of the accused," McLaughlin wrote.

The Crown would not comment further as the decision may be subject to appeal.