Mischief charges against local fishermen who went ice fishing on Corbett Lake last December will not be making it to criminal court as the Crown requires the issue of access to be resolved in civil court first.
Rick McGowan, director of the Nicola Valley Fish and Game Club and one of the fishermen who was charged, said the only civil case for the club to make would be against the Ministry of Transportation for blocking public access to the lake.
While he would love to take this case to civil court, neither he nor the club has the money to do so, he said.
“We’re hoping to win this by the ministry doing what’s right,” he said.
McGowan recently organized multiple fishing trip protests to Corbett Lake against what he and other anglers claim is an illegal blocking of a public lake by private companies.
In January of 2015, RCMP charged 10 people, including McGowan, with trespassing on to Corbett Lake to ice fish and issued them tickets. The Crown stayed those charges last October.
At the time, RCMP Sgt. Norm Flemming told the Herald the Crown recommended those charges be stayed because the cost-benefit wasn’t enough to warrant proceeding, and it would be more efficient to stay the charges as a warning.
“Rick can line up 10 people that say it’s public access, we can line up 10 people that say it’s private, but there’s no ruling from the civil court that says it is private or it is a public right of access,” – RCMP Sgt. Norm Flemming.
Undeterred, McGowan organized another protests last December.
He and six other protesters were arrested and charged with mischief for walking on to the frozen lake to ice fish, back on December 15, 2015
The men were supposed to be in court on May 17 to face those charges, but the case was dropped.
Sgt. Flemming said he was advised by the Crown that they wouldn’t pursue the recommended charges. Regional Crown was of the opinion that the determination of public access to the Merritt area lake is a key factor in this case that should be handled in civil court and not the criminal domain.
According to Flemming, information he’s gathered from the provincial government states that the lake is surrounded by private property and there is no right of public access to it.
The lake is surrounded by property owned by three different groups — the Douglas Lake Cattle Company, the Nicola Ranch and the Corbett Lake Lodge, which uses the lake as a private fishing destination.
McGowan and the Fish and Game Club has been arguing for years that since lakes in British Columbia are public, the privately owned land surrounding Corbett illegally restricts access.
McGowan says there is public access to the lake, pointing to surveys that he said show the easement — that is, the land on either side — of Highway 97C extends to include the border of the lake, providing a point at which the lake can be accessed without crossing private property.
“Rick can line up 10 people that say it’s public access, we can line up 10 people that say it’s private, but there’s no ruling from the civil court that says it is private or it is a public right of access,” Flemming said.
Flemming said that his interpretation of the Crown’s current position is that because there is no civil court determination on property and access rights, it doesn’t feel it is in a position to determine if mischief or trespassing took place, which is all that a criminal court hearing would decide.
He said he thinks if this case were to get to criminal court, a judge would likely make a guilty ruling and issue an absolute discharge or conditional discharge to the accused and direct them to have their legal claim heard in civil court.
“That would be the most likely outcome of it,” Flemming said.
Because the Crown requires the issue of public access be determined in civil court, police are essentially handcuffed in their ability to assist any private property owner that may have an issue, Flemming said.
The owners of the Corbett Lake Lodge could obtain a civil injunction, which would prohibit those actions until the issue is determined in court, but it would then be up to McGowan or another to challenge the injunction in court, Flemming said.
Flemming also said obtaining an injunction would also be costly and time consuming.
“If it’s really a protest, and he’s making a point, he’s made it. Now do the next step. Take it to [civil] court,” Flemming said of McGowan, adding that if he disagrees with the Ministry of Transportation he should hold them accountable and go to civil court.
The province looking into the Fish and Game’s Club’s case in regards to public access to Minnie and Stony Lake, which lie due east of Corbett Lake, McGown said. That case begins January 9, 2017 in B.C. Supreme Court in Kamloops.
McGowan said the club is already financially strapped from that case and can’t afford another one over Corbett Lake.
He said he hopes that a victory in the Minnie and Stoney case would have a ripple effect on access to Corbett Lake.
Flemming told the Herald police have yet to determine how they will proceed if further protests occur at Corbett Lake, which McGowan said will take place.
