‘High probability’ of disturbing whales in Discovery Passage enough to convict boater

A boater charged with harassing a group of orca whales two years ago was found guilty on two charges in Campbell River provincial court

A boater charged with harassing a group of orca whales two years ago was found guilty on two charges in Campbell River provincial court Aug. 7.

Carl Eric Peterson was found guilty by Judge Brian Saunderson of unlawfully disturbing a marine mammal while not fishing and of unlawfully harassing a threatened wildlife species.

The incident occurred on Oct. 3, 2010 in Discovery Passage between Quadra Island and Campbell River. Peterson was operating a power boat in the vicinity of a group of orcas, or killer whales, when eyewitness Fishery Officer Carlos Paramio said two orcas surfaced about 60 metres in front of Peterson’s boat.

Paramio told the court during Peterson’s two-day trial Jan. 11-12, 2012, that Peterson accelerated towards the pair of whales. The orcas dove as Peterson’s boat got closer, and then slowed down. Paramio said he saw Peterson approach four or five times, with the boat getting closer each time.

He said the last time, the boat was 15-25 metres behind the whales “and at that point the vessel did a quick U-turn and immediately went into planing speed and left the area.”

Shortly after, Peterson was stopped by Paramio and accompanying fishery officer Greg Askey.

Askey, who was driving the officers’ patrol boat, corroborated Paramio’s testimony and said he saw Peterson motor in and out among as many as four whales.

“As the whales were moving, the boat would come up…not quite onto the plane, but what I call a ploughing speed…to where the whales surfaced, stop,” Askey told the court. “The whales would go down. (Peterson would) plough forward again as they would come up.”

Judge Saunderson wrote in his written decision handed down Aug. 7 that “the testimony of the Crown witnesses was not solely attacked during cross-examination. Furthermore, I accept as substantially accurate the fishery officers’ estimates of distances.”

According to Saunderson, there is no law specifying the minimum distances boaters must maintain between their vessels and orcas. All that exists are guidelines laid out in a leaflet called Be Whale Wise. It describes and illustrates a “no-go zone” within 100 metres laterally and 400 metres ahead of and behind a pod of travelling killer whales.

Saunderson said these guidelines “do not have the force of law, but were available to boaters.”

Dr. John Ford, an expert on whale biology, prepared a report for the court stating those guidelines have long been in place in both Canada and the United States.

Ford could not say with certainty that Peterson’s boat disturbed the whales, but there was the potential to disturb them.

Ford wrote in his report that close approaches to killer whales have the potential to disrupt the normal behaviour pattern of orcas by changing their speed, direction of travel, dive cycles, and frequency of tail slaps.

“The noise created by their (nearby) motors…can mask the vocalizations that whales use to communicate and navigate under water,” Ford wrote. “In my opinion, both are factors in disturbance responses.

“Such disturbance can cause short-term disruption of behaviours such as resting, feeding, socializing, and mother/calf interactions such as nursing.”

In finding Peterson guilty, Saunderson said Crown counsel showed there was a “very high probability” that the whales were disturbed, which was more than needed.

Proof of an actual disturbance is not required by law.

“On the second point, nothing in the evidence suggests that the defendant was fishing for marine mammals – or anything else – at the time, and I find that he was not fishing,” Saunderson wrote. “The charges have been proved and I find the defendant guilty of counts one and two.”