Photo by Whitehorse Star
Photo by Whitehorse Star
A Yukon judge has convicted the former Tagish kennel owner of one count of violating the territory’s Environment Act.
Territorial court Chief Judge Peter Chisholm read his decision in court on Tuesday. He convicted Shelley Cuthbert and ordered that she pay $2,000 in restitution to the Yukon government.
Her trial took place Jan. 6.
Cuthbert was originally charged with two counts of violating the Environment Act – abandoning solid waste and abandoning litter.
He convicted her of the solid waste offence and conditionally stayed the littering charge.
These resulted from her time occupying a section of public land on Kilometre 30 of the Atlin Road near Tarfu Creek.
Cuthbert had set up a camper, tents and other shelters for herself and her dogs, after she and the animals had to leave her Tagish residence due to a court order.
Her neighbours in Tagish had taken her to court over noise complaints. Cuthbert lost the case and the subsequent appeal.
She was at the land in question from mid-2018 to early 2019.
The government sought a court order to have Cuthbert removed from the Tarfu Creek land. The court granted the request in early 2019.
She asked for two extensions and was ultimately ordered to be off the land by May 27, 2019. She argued the land reclamation was not part of this order.
Chisholm noted that Cuthbert was sent a letter by email on June 18, 2019. This letter referenced the removal of all of her items.
It indicated that the government could remove the remaining items, but a prosecution could result from it. He added there was no indication of Cuthbert acknowledging the letter. She was charged with both counts on June 27, 2019.
Chisholm said the court does not know the state of the land before Cuthbert used it. He found that Cuthbert was the only person known to be using that land during the time in question.
Natural resources officer Jason Colbert, who testified at trial, observed several items remaining at the Tarfu Creek land after May 27, 2019. He said these items were consistent with what he had observed during earlier visits.
Chisholm felt it was clear that the objects were used to shelter Cuthbert and her dogs. He felt the Crown had proved its case beyond a reasonable doubt.
“I am also satisfied that the presence of such items are consistent,” Chisholm said.
He then moved to Cuthbert’s defences. She argued that she had taken all reasonable steps to avoid committing the offences and had acted on a mistaken set of facts provided to her by the natural resource office.
He felt neither applied.
He said it was clear in the correspondence between the Department of Energy, Mines and Resources and Cuthbert that land reclamation was part of the deal. This means, he explained, that neither defence was available.
He added that she ignored warnings, and there is nothing on the record to say that she was given the wrong information.
“This argument holds no weight,” Chisholm said.
The court next moved to sentencing.
Territorial Crown prosecutor Megan Seiling noted that the maximum penalty was either $200,000 or six months in jail. She said there were other options, like making restitution.
She said the government only wants to recover the $3,575 cost of cleaning up the area.
“The Crown is not looking to penalize Ms. Cuthbert significantly,” Seiling said.
She argued that the government tried to work with Cuthbert. She added it was patient, and there was no outstanding environmental damage to the area. She noted that Cuthbert is not a repeat offender and co-operated with the government.
Although Cuthbert did not fully comply with the order, Seiling was prepared to recognize that effort was made. That said, Seiling argued that Cuthbert is not showing remorse.
Cuthbert saved money by not removing everything, Seiling said, and this behaviour needs to be deterred.
Cuthbert, who represented herself, said she made significant efforts to remove what she could from the Tarfu Creek area. She explained she lives in an isolated area with a bad road, and her truck kept getting stuck in mud.
“I did what I could,” Cuthbert told the court.
She believed that if she removed what she could, the remaining items would be removed and she could pick them up in Teslin.
Cuthbert argued that Colbert did not do a proper inventory of what she had at the scene, nor did he properly record her progress of removing items.
She indicated she has little income and does not have any property.
She reports difficulty finding a job due to the press generated from her various court appearances over the past couple of years.
She told the court she has no ability to pay anything.
Seiling said the Crown cannot just walk away. She added it had to proceed with the understanding that Cuthbert was still operating some kind of dog shelter.
She offered to adjourn sentencing to see if they could negotiate something. Cuthbert declined.
Chisholm decided to reduce the restitution to $2,000. He felt there were enough mitigating factors to allow it.
He warned Cuthbert that the court is expecting her to make an effort to pay the restitution. He explained these could be small efforts if needed.
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