R. v. Kooyman, 2016 BCPC 494

Citation: R. v. Kooyman 2016 BCPC 494 Date: 20161216 File No: 63894-2C Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WESLEY KOOYMAN and CHILLIWACK CATTLE SALES LTD. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R.J. GUNNELL Counsel for the Crown: J. MacAulay Counsel for the Defendant: L. Doust, Q.C., R. Mennie Place of Hearing: Chilliwack , B.C. Date of Hearing: December 16, 2016 Date of Sentence: December 16, 2016 [ 1 ] THE COURT : Before me today on Information 63894-2C are Chilliwack Cattle Sales Ltd. and Wesley Kooyman.

Wesley Kooyman is a director, a shareholder of Chilliwack Cattle Sales Ltd. His brother is here, Kenneth Kooyman, as well, as the CEO, as I understand it, of that company. This is a family owned company involved in the dairy business, now for the third generation.

[2] The company has pled guilty on this Information to Counts 2, 18 and 20 and Mr. Wesley Kooyman has pled guilty on Count 2 ofthat Information. Count 2 is an offence under the Prevention of Cruelty to Animals Act in that Mr. Kooyman, being a responsible personfor animals, between April 30th and June 1st of 2014, failed to care for the cattle in circumstances that were likely to cause the animalsto be in distress.

The company has pled guilty to that same charge as well. [3] Counts 18 and 20 involve the same offence and the company has pled guilty to the same charge with those events to haveoccurred on May 16, 2014, in relation to Count 18 and May 28, 2014, in relation to Count 20. [4] Being responsible for the cattle, the Kooymans were required to care and protect those animals. Under the Act, the maximumpenalty is a fine up to $75,000, jail up to two years or both. [5] I have before me today a joint submission for a $75,000 fine on each count for each defendant.

Also, in relation to WesleyKooyman, a prohibition for one year pursuant to s. 24(3) of the Act that he not participate as a director or officer in the company andthat except for feeding cattle that he not have custody or care of dairy cattle. [6] In relation to the company itself, these fines would total $225,000, plus $33,750 in victim fine surcharge or $258,700 total. ForMr. Kooyman, the $75,000 fine, including victim fine surcharge, would come to $86,250. [7] These offences are strict liability offences, they are regulatory offences.

The defendants are required to use reasonable care andby way of defences to such charges, they would have to show due diligence. This they cannot do and as such, they have pled guilty tothese offences for their omissions. Not for the actual commission of the obvious cruelty that we have seen on the videos today, but fortheir omissions in ensuring that such actions did not occur. [8] We watched video today that was taken surreptitiously by someone who worked for the company for about a month.

It showsbehaviour by employees of this company that is deeply disturbing, very callous and was something that the defendants admitted wasegregious mistreatment of their dairy cattle. The defendants did not properly supervise or train their employees and as a result, theseanimals suffered significant abuse. [9] I also note, as Mr. Doust pointed out on behalf of the defendants, the matter has garnered significant media attention and I expectsocial media attention as well. The family and the company have suffered shame, embarrassment and public condemnation.

From what Ihave heard, I expect specific deterrence is not an issue here. [10] The Kooymans have taken steps to ensure that their employees are now properly trained and supervised so that these types ofevents will not reoccur. Part of this involves security, by way of video monitoring of their operations, that can be accessed by theprincipals of the company even on their cell phones. [11] I have had put before me a number of cases, but these cases are not fact specific to the situation here today.

The cases have beenprovided for the principles that are appropriate in these types of situation. [12] Judge Jardine's decision in Paulsen from 2015 BCPC 45 , 2015 BCPC 0045 is especially helpful. As Judge Jardinepoints out in that case, and as has been pointed out to me today, deterrence is the paramount principle for this type of offence. Mysentence must emphasize community disapproval of these types of acts and brand them as reprehensible. This is so the sentence has amoral or an educational effect on society and thereby affects the attitude of the public.

The sentence must also be proportionate to thegravity of the offence and the degree of responsibility of the offenders. I also note that sentencing is an individualized process. [13] These offences are offences of negligence. The defendants did not intentionally harm their cattle but their inaction allowed theseoffences to occur. I am not able to compare this case to any similar type of case as a sentence for similar offences and similar offendersshould be similar.

In any event, as Judge Jardine said in the Paulsen decision, he had no other cases that he could compare and drawconclusions from or comparisons with. [14] I have had the aggravating and mitigating circumstances discussed before me today. This business did not properly train andsupervise their employees. They had no real system checks set up so that the safety of the animals was ensured and they failed to followthrough on their own guidebook that was available and that at least one employee was never given a copy of.

There are also the earlyguilty pleas and the remedial efforts that have been taken by the company, to name a few of the aggravating and mitigatingcircumstances. [15] As pointed out by counsel, I am not to depart from a joint submission unless the administration of justice would be brought intodisrepute. I owe deference to such submissions especially by experienced counsel who know the intimate details of the files. Mr.MacAulay, on behalf of the Crown, is perhaps one of the more qualified if not the most qualified Crown in this province on these typesof files and Mr.

Doust who may be one of the most senior defence counsel in the province as well. [16] The fines here are substantial. They are the maximum fines available. I expect the impact on the company and the family will befinancially significant. I believe it sends a significant sign to others so that general deterrence will be at the forefront of the minds ofthose who are involved in these types of regulatory matters.

There is certainly nothing to indicate to me that the administration of justicewould be brought into disrepute by imposing the sentences suggested. [17] Wesley Kooyman, can you stand, please. [18] Sir, I sentence you on this matter on Count 2 to the maximum fine of $75,000. There is also an order under s. 24(3) of the Actfor one year prohibiting you from owning, having custody of or control of any dairy cattle, unless you are feeding such cattle in thecourse of your employment in the company of another adult.

Further, you shall play no role in the management of, or be a director of, orofficer of Chilliwack Sales Ltd. Thank you sir, you can sit. [19] Kenneth Kooyman, stand up, please, on behalf of the company. In relation to Count 2 of this matter, the fine will be $75,000. In

relation to Count 18, the fine will be $75,000. In relation to Count 20, the fine will be $75,000. [ 20 ] Is there an issue of time to pay? [ 21 ] MR. DOUST: You didn't refer to the surcharge in relation to the company, I don't think. [ 22 ] THE COURT: I think, as I understand it, the amount, is it not set out automatically? [ 23 ] MR. MACAULAY: Yes. It goes without saying, however, it can be said. [ 24 ] MR. DOUST: Well, that comes to a total of $258,750, I think, and the other one is $86,250. I just want you to be mindful of the extent of the amounts involved. [ 25 ] THE COURT: Yes. No, I have.

The total of one is $258,700 and the other $86,250. [ 26 ] MR. DOUST: That's right, Your Honour. I agree with that. Yes. Time to pay, if it pleases Your Honour, I've discussed this with my friend and I'm going to ask your indulgence in permitting them to pay, first of all the company, $75,000 plus the $33,750 victim surcharge on January the 15th of 2017; and then another $75,000 six months later on July the 15th; and another $75,000 on the 15th of December of next year.

In terms of Wesley, the same timeframes, that is to say the $25,000 one third plus the victim surcharge of $11,250 on January the 15, 2017, then $25,000 on July the 15, 2017 and six months later again $25,000 on December the 15th of 2017. [ 27 ] THE COURT: Any issue with that, Mr. MacAulay? [ 28 ] MR. MACAULAY: No, Your Honour. [ 29 ] THE COURT: Okay. That is fine. [ 30 ] MR. DOUST: Thank you, Your Honour. [ 31 ] THE COURT: All right. Thank you. (REASONS FOR SENTENCE CONCLUDED)