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 Posted in    |  on April 13th, 2017  |  by

Unsanctioned Kindersley trailbuilder loses court case

On Wednesday, April 5th the Honourable Judge L. Doerksen came to a verdict in the David Pacey versus Parks Canada legal case.
Mr. Pacey took the stand earlier that day to make his case, fighting two counts of damaging flora, fauna, or a natural object, a contravention of the Canada National Parks Act. Mr. Pacey used the defence of due diligence and the defence of necessity to justify his actions of working on and altering the Kindersley Pass Trail without the requisite permission.
In attempting to use due diligence as a defence, Mr. Pacey said that he took steps to avoid the prohibited event, in this instance said he took steps to avoid having to intervene directly on the trail. In attempting to use necessity as a defence, he cited his concern for public safety. Mr. Pacey took the stand telling the judge that he went through the Parks Canada process of reporting problems on the trail to the agency’s Radium office for years, but nothing changed on the trails.
“I was not frightened but I was very concerned about the lack of maintenance over the last four or five decades to get to this point,” said Mr. Pacey.
Mr. Pacey said he got so frustrated with Parks Canada not doing what they’re supposed to do that he began volunteering his time on the trails. He went on to start a petition to send to Minister of Environment Mary Polak to have Parks maintain the trails to standards he felt necessary in the national park.
Mr. Pacey was found by park wardens conducting work on the Kindersley trail. In the first such incident he was found moving gravel from the parking lot to the base of the trail and was issued a written warning. Park wardens informed him any work done in the park must be approved with a permit signed by Lake Louise Yoho Kootenay field unit superintendent Melanie Kwong.
In the second incident Mr. Pacey was found by park wardens using a Swede saw to cut a tree that was on the trail, Mr. Pacey was asked to stop working and leave the trail.
While on the stand Mr. Pacey alleged that Ms. Kwong was planning to close the Kindersley Pass Trail, and he outlined his concern about the need to maintain the trail infrastructure. Judge Doerksen asked Mr. Pacey if his view was if they open a trail they have to maintain it forever.
“Yes, the assets and infrastructure is there and they’re allowing it to degenerate, and I believe it’s wrong,” said Mr. Pacey.
Parks Canada had previously, in the first day of the hearing (held on Thursday, March 9th) outlined that when Mr. Pacey was working on the trails, he had, by working alone, violated a ‘minimum group of four’ trail restriction in place on the Kindersley trail. Parks Canada group of four restrictions are enacted when there is bear activity on the trails to protect both the wildlife and hikers. By having a group of four or larger on the trail it creates a larger disturbance alerting animals to hikers on the trail.
Mr. Pacey addressed this issue, saying he had never come across a bear on the trails although he has seen deer, a wolf, and a rabbit.
“In the 14 years that I have been hiking the trails in the Rockies the only time I’ve seen bears has been on the highway,” said Mr. Pacey.
During cross-examination, Crown prosecutor Rebecca Smyth said Mr. Pacey got a meeting with Ms. Kwong because of the fuss he was raising and that his complaints were taken seriously by Parks Canada. The meeting Ms. Smyth was referring to was a 3.5-to-four-kilometre hike Ms. Kwong took with Mr. Pacey on Kindersley Pass Trail to hear and see areas Mr. Pacey deemed as unsafe.
Ms. Smyth said that if Parks wishes to have a trail overgrown they can do that and they can’t have people carrying out duties on their behalf.
“Civil disobedience comes with a cost, this is what we’re seeing here, is vigilantism,” said Ms. Smyth.
Mr. Pacey admitted to being a volunteer and a whistleblower but disagreed with Ms. Smyth’s statement that he was committing vigilantism.
“I’m not a vigilante, I’m a volunteer that Parks can’t figure out how to fit into their system,” said Mr. Pacey.
While coming to his verdict Honourable Judge L. Doerksen said he didn’t believe Parks Canada was trying to persecute Mr. Pacey.
“Mr. Pacey you’re not a bad person, this is not a trial about your character. This is a trial about if you committed a regulatory offence,” said Judge Doerksen, adding that guidelines aren’t laws and certainly don’t require Parks to adhere to them, referring to the Parks Canada trail specification guidelines.
The trail specification guidelines were part of Mr. Pacey’s defence argument, with him saying he was trying to expand the trail from 18 inches (half a metre) to guideline standard of four feet (1.2 metres)
“It wasn’t random removal, it was to the specifications Parks has,” said Mr. Pacey.
As this case is one that the court doesn’t see regularly Ms. Smyth brought forward two cases that she felt would have bearing in helping the judge in his sentencing, one regarding a citizen joy riding a motor vehicle in the park and a similar case in Banff National Court of a person cutting down trees. Ms. Smyth suggested to the judge that the sentence needs to be a bigger message and act as a deterrent to others, suggesting a $5,000 fine for each count against Mr. Pacey.
“I knew what the verdict would be in, that they’d be giving me a guilty sentence. I just didn’t know what it was going to be dollar amount. I had heard from someone it would be around $300 each roughly. When the prosecutors started talking $5,000 each, I felt like I got kicked in the you know whats. My stomach dropped out,” said Mr. Pacey after the trial.
“Parks Canada is a world leader in conservation and takes the protection of the resources under its care, and the upholding of its acts and regulations, very seriously,” said Parks Canada spokesperson Lindsay McPherson. “Parks Canada works very hard to prevent offences from happening through education, outreach and prevention strategies, but in some cases, when people do engage in illegal activity in a national park, we need to take stronger actions.
“The law enforcement actions taken in this case reflect Parks Canada’s commitment to protecting Canada’s natural and cultural treasures for future generations. Despite repeated warnings and explanations to Mr. Pacey, he continued to conduct unauthorized trail building and Parks Canada was left with no choice but to pursue charges,” she said. “In this instance, Parks Canada Law Enforcement staff collected sufficient evidence to lay charges under two different sections of the National Parks General Regulations. Parks Canada investigates known or suspected infractions, resulting in charges where supported by evidence. Penalties vary, with a maximum fine of $25,000. The final determination is made by the court in each case.”
Mr. Pacey was found guilty of both counts against him and was given two fines of $500 each with two years to pay them off.
Going forward Mr. Pacey is done doing his volunteer work in the park but will continue to pursue the issue and ask for an inquiry of suitability of what Parks Canada isn’t doing. Mr. Pacey plans to work with MP Wayne Stetski and the federal Conservative critic for national parks and the Ministry of Environment to get attitudes changed.
“A lot more needs to be done from the public. I’m one person (but) a lot of people have signed the petition (which Mr. Pacey had started last year calling on Parks Canada to upgrade maintenance of the Kindersley trail). If more people want to get in touch with me and add their names to it I’d be more than pleased to add their names,” said Mr. Pacey.
Those interested in learning more about Mr. Pacey’s petition can do so by contacting him directly, by email, at davidpacey09@gmail.com.

Nikki Fredrikson
Email: nikki@columbiavalleypioneer.com
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Nikki Fredrikson joined the Pioneer in after completing her bachelor of journalism major in public relations from Thompson Rivers University. She previously worked with the Pioneer as summer intern returning in early spring to experience more of what the Valley has to offer. If she's not in the office you'll find her covering an event, hiking the trails or kayaking on the lake.

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