R. v. Cummins et al. Date:, 2010 BCPC 433

Citation: R. v. Cummins et al. Date: 20101221 2010 BCPC 0433 File No: 128017-1 Registry: Surrey 33510-2C (Delta File) IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOHN CUMMINS et al, DONALD CARTER et al and DALE AMSTRONG et al REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. O.'C. WINGHAM Counsel for the Crown: J. Le Dressay Counsel for the Defendant: P. Eidsvik Place of Hearing: Surrey , B.C.

Date of Hearing: November 26, 2010 Date of Judgment: December 21, 2010 [ 1 ] THE COURT : On December 9, 2009, I convicted all of the accused on Information number 33510-2C of the following offences which were committed on August 22, 2001: Count 1, unlawfully setting fishing gear or apparatus in the waters of the Fraser River during a closed time, contrary to s. 25 of the Fisheries Act . [ 2 ] Count 2, unlawfully fishing for salmon with a gill net during a closed time, contrary to s. 53(1) of the Pacific Fishery Regulations . [ 3 ] Count 3, unlawfully possessing fish, salmon, contrary to s. 33 of the Fisheries Act . [ 4 ] Also, on December 9, 2009, I convicted all of the accused on Information Number 128017-1 with similar offences which were committed on September 1, 2002.

[ 5 ] On November 24, 2010, a sentencing hearing was held.

At that time all of the accused on both Informations attended, with the exception of Robin Bemi and Robert Brett who are now deceased, and the proceedings against them were abated, and George Huovinen, Ronald Johnson, both of whom are here today, Bobby Nishi, who is not here today, Jean Wirch, who is here today, and Jeffrey Parker who is, I am told, not here today. [ 6 ] At the sentencing hearing I heard submissions from the Crown, and evidence and submissions from those defendants who were present and wished to make submissions. [ 7 ] The background to this case is as follows: The accused in both matters were all commercial fishers at the time that the offences were committed.

They say that their actions which led to the charges and ultimately their convictions were a protest fishery.

They wanted to bring attention to what they considered to be poor management of the Pacific Salmon Fishery by the Department of Fisheries and Oceans, and what they say was the lack of enforcement by that department against what they say was illegal commercial fishing by aboriginal groups under the guise of food, ceremonial and social fishery licences. [ 8 ] The first protest fishery occurred on August 22, 2001, during an aboriginal food, ceremonial and social fishery being conducted legally by the Musqueam and Burrard First Nations.

There were 125 commercial fishers who went out on the river that day without a licence. The accused made their intended actions known to the Department of Fisheries and Ocean officials. The Crown says that the department made a substantial effort to ensure calm between the commercial fishers and the aboriginal fishers. In total that day salmon with a value of $937 were seized from the commercial fishers. [ 9 ] The second protest fishery occurred on September 1, 2002, and coincided with a food, ceremonial and social fishery being conducted legally by the Katzie Band.

In that incident there were four vessels and nine commercial fishers involved. The Crown referred to that occurrence as a calm event with the accused cooperating with Department of Fisheries and Oceans officials. [ 10 ] At the sentencing hearing I provided all of those present with the opportunity to make submissions to the court. I heard evidence from three of the accused, John Simonette, Scott Nicholas and Leonard Koyanagi.

I also heard submissions from Phillip Eidsvik, who spoke on behalf of all of the accused, and from Lloyd Armstrong, Norman Trites, Bruce Probert, Russ Jacobson and Kevin Simonette. [ 11 ] John Simonette is 68 years old. He has been fishing since 1973. He has no record for any fishing offences. He characterized his actions as civil disobedience. He said he participated in the protest fishery as he was concerned that fish caught by the aboriginal fishers were being sold commercially. He said he is no longer fishing. He sold his boat and his licence. [ 12 ] Scott Nichols was born in Prince Rupert.

He has been fishing for 30 years. He has no convictions for fishery offences. He suffers from Multiple Sclerosis and so does not fish any more. He says he currently has no income. He engaged in the protest for 20 minutes. He said he went to get one fish to eat. [ 13 ] Leonard Koyanagi was born in New Denver in 1994 (sic) in an internment camp. He started fishing in 1975. He spent most of his life employed in the fishing industry. He had never incurred any fishing charges before this.

He said that he participated in the protest fishery as he was of the view that the aboriginal food fisheries had become commercial fisheries, and that the commercial fishers no longer had a fishery. [ 14 ] Bruce Probert described himself as a third generation fisherman. He said that in his view commercial fisherman have been discriminated against. He said that he and others have lost their livelihood. He said that he paid $90,000 for a commercial fishing licence. He claims to have lost his house, and he says that he suffers from depression. [ 15 ] Paul Jacobson described fishing as his life and his passion.

He has four fishing boats and licences, but said that he has had to take a job to keep his boats and his licences. He said he is depressed and he has problems with his marriage. [ 16 ] Lloyd Armstrong is a third generation fisherman. He said he has paid enough and does not believe he should have to pay a fine for his actions. [ 17 ] Norman Trites is 42 years old. He said he believes he and his fellow accused have already been fined. [ 18 ] Kevin Simonette is 37 years old and has been fishing since he was 11 years old.

Since these offences he has returned to university and obtained his Bachelor of Arts Degree and his Law Degree. He is now a lawyer. He described his and his co-accused's actions as civil disobedience. He maintained that the actions taken which led to the charges was a right course of action. [ 19 ] The accused collectively also called Dennis Murray Brown as a witness. Mr. Brown is not an accused, but he has been involved in the fishing industry in British Columbia since approximately 1980. Mr.

Brown's evidence was in large part focused on issues concerning the allocation of the salmon fishery and the enforcement, or lack thereof, by the Department of Fisheries and Oceans against aboriginal fishers. I do not intend to review in detail Mr. Brown's evidence, or the various documents to which he was referred in his evidence. The thrust of his evidence, in my view, was to provide the background to the protest fisheries which the accused conducted which led to the charges against them. [ 20 ] What is clear from Mr.

Brown's evidence, and more particularly from the accused who either gave evidence or made submissions, was that there was a great deal of frustration and, at least in some cases, anger on the part of the accused over what they perceived to be an unequal treatment of them by the authorities who were charged with the administration and management of the fishery, and that it was that frustration and anger that led them to commit the offences that they have been convicted of. [ 21 ] The Crown submits that an appropriate sentence is a $200 fine for each of the accused on each Information, with the exception of Mr.

John Cummins. The Crown submits that Mr. Cummins should receive a fine in the amount of $400 as this is his second conviction. The Crown says that a discharge would not be appropriate. The Crown says, correctly, in my view, that the protest fisheries were organized and planned to draw attention to concerns which the accused had concerning the management of the fishery by the Department of Fisheries and Oceans.

[ 22 ] The Crown submits that even though there was no violence, there was a potential for conflict with aboriginal fishers, and that the Department of Fisheries and Oceans had to make substantial efforts to ensure calm during the protest fisheries. [ 23 ] The accused submit that they should each receive an absolute discharge. They say that the protest fisheries were peaceful, that the Department of Fisheries and Oceans was notified in advance, that the protest fisheries were conducted to bring the issue before the court.

The accused say there is no need for deterrence as there have been no protest fisheries since these events. [ 24 ] The Crown relies on the decision of then Chief Justice Brenner in R. v. Kapp et al , 2004 BCSC 1503 . In Kapp , as here, the actus reus of the offence was admitted. In that case the offence arose out of a protest fishery conducted in August 1998. Mr.

Justice Brenner noted that what the court was confronted with was an intentional act on the part of the accused which was intended to protest the aboriginal pilot sales fishery, and the failure of the Department of Fisheries and Oceans to suspend the program pending appeal of this court's decision in R. v. Huovinen . [ 25 ] In considering the issue of whether a discharge ought to be granted, the Chief Justice referred to the leading decision of R. v. Fallofield , 1973 CanLII 1412 (BC CA) , [1973] 6 W.W.R. 472 , B.C. Court of Appeal.

At paragraphs 19 and 20 Brenner J. stated: In its judgment, the Court of Appeal set out, after reviewing the authorities at page 476 of the judgment, the circumstances in which it is appropriate for the court to impose an absolute discharge. The fourth item and the sixth item are the ones that in my view are apposite in the case at bar. The fourth test as outlined by Chief Justice Farris is that:

(4) The second condition precedent is that the court must consider that a grant of discharge is not contrary to the public interest. And:

(6) In the context of the second condition, the public interest in the deterrence of others, while it must be given due weight, does not preclude the judicious use of the discharge provisions. Another case referred to by Chief Justice Farris was R. v. Campbell , 1972 CanLII 1395 (AB KB) , [1973] 2 W.W.R. 246 , in which an absolute discharge was given where an accused was charged with taking

part in an immoral performance after having been told that a judge had recently held wrongly, as was later decided on appeal, that taking

part in a similar performance was not an offence. The distinction between Campbell and the case at bar, of course, is that the offenders in this case did not have the benefit of a belief that a judge had held that their actions in going out and engaging in a protest fishery was not an offence. [ 26 ] And at paragraph 23 the Chief Justice said: In the case at bar the offenders, in fact, deliberately set out to breach an existing law.

Whatever the status of the PSP and in any event of their view of it, and indeed the Provincial Court’s view of it, the offenders as long time fishermen clearly understood that they were fishing during a closed time and that that was contrary to the Fisheries Act and regulations. For that reason, it seems to me that a grant of an absolute discharge would be contrary to the public interest and would not convey the necessary and appropriate message of general deterrence to others inclined to actions of this nature. [ 27 ] In R. v.

MacIsaac , 2007 BCPC, Surrey Registry file number 148172, Judge Gill of this court sentenced 24 accused who pled guilty to fishing during a closed time. The offences were, as he described them in paragraph 2: ... committed in an open and deliberate fashion as a demonstration of protest against what they felt was an unfair curtailment of their fishing by the Department of Fisheries and Oceans. [ 28 ] Judge Gill declined to grant the accused in that case discharges.

At paragraph 13 he said: The matter of sentencing under circumstances similar to these is best summed up in the words of Chief Justice Brenner in the similar, but not identical, case of R. v. Kapp . That case involved a sentencing of a group of commercial fisherman for conducting a fishery during a closed time to protest what they felt was an unfair commercial advantage being provided to aboriginal fishers via a program known as the Pilot Sales Project, or PSP for short. [ 29 ] Judge Gill then quoted paragraph 23 from Chief Justice Brenner's decision, which I have already referred to.

Then at paragraph 14 Judge Gill, in his decision, said: Dealing, then, with the specific quantum of sentence that ought to be imposed, I would note that some of the defendants have limited records for prior fishing violations, however, none of them have any prior entries involving an illegal protest fishery. For sentencing purposes, and in accordance with the remarks made by the Chief Justice in the Kapp case just mentioned, the defendants ought to be

sentenced not as offenders with prior fisheries violations, but rather as first-time protest fishery offenders. [ 30 ] Judge Gill imposed fines of $200 for each first-time offender, and fines of $400 for each offender who had prior convictions arising from a protest fishery. [ 31 ] Mr. Eidsvik, on behalf of the defendants, referred me to the following cases: R. v. Patrick, [1988] B.C.J. No. 3189 , a decision of this court; R. v. George , [2002] B.C.J. No. 1313 ; R. v. Anderson , 2003 BCPC No. 217, and the appeal on that case, the decision on appeal on that case, R. v.

Anderson , 2004 BCSC 1745 . [ 32 ] The Patrick case did not involve a protest fishery. There was a single accused who was found guilty of fishing during a closure. The accused, an aboriginal fisher, was granted a discharge. [ 33 ] The George case was a decision on an application for a stay of proceedings on the basis of unreasonable delay. That application was dismissed. [ 34 ] In the Anderson case the court was dealing with a protest fishery. His Honour Judge Saunderson granted the defendants an absolute discharge. On appeal, Justice Morrison upheld Saunderson PCJ's decision.

At paragraphs 39 and 40 she stated: The Crown contends that the decision in R. v. Cummins , an unreported decision of February 6, 1998 of the Provincial Court of B.C. in Surrey, sets no precedent. That case involved a member of Parliament, also a fisherman, who staged a protest fishery.

In his very brief reasons for judgment, the sentencing Judge said, "I am persuaded that the Fallofield principles are applicable here." He said he was satisfied that was occurred was a technical violation of the law, and that the motives of the accused in seeking to test the validity of the regulations and policies of the DFO was "a case of good faith rather than bad faith". He further said he did not think that general deterrence required him to penalize the accused any further. He granted an absolute discharge on both counts.

The facts in Cummins are closer to this case than many other cases cited. [ 35 ] Justice Morrison continued at paragraph 41 as follows: From the evidence before me, there was ample evidence before the sentencing Judge to justify the granting of absolute discharges to all accused. In my view, there has been no error in principle nor has there been a failure to consider a relevant factor on the part of the sentencing Judge. I do think some of his remarks were unfortunate and unnecessary with regard to the DFO and its policies. I do not think his statements with regard to aboriginal fishing were relevant or helpful.

They were unnecessary obiter . [ 36 ] It would appear from a reading of Morrison J.'s reasons in the Anderson case that she did not have the decision of Brenner, C.J., of the Supreme Court in Kapp before her. I also note that Morrison J. was sitting in appeal of Saunderson PCJ's judgment. She determined that the sentence which was imposed was justifiable given the evidence that was before the sentencing judge. [ 37 ] In sentencing the accused in this case I must take into account the principles of sentencing. Those principles are set out at s. 718 through 718.2 of the Criminal Code .

I must also consider any aggravating or mitigating circumstances which may exist. [ 38 ] In this case, the accused, all of whom were licensed commercial fishermen, intentionally broke the law by engaging in what they termed protest fisheries. As in Kapp , the accused knew the fishery was closed and that their actions were contrary to the Fisheries Act and regulations. [ 39 ] In arriving at my decision I have taken into account that the protest fisheries were peaceful and that the accused cooperated with Department of Fisheries and Oceans enforcement personnel.

I am also mindful of the fact that the protest fisheries occurred during the aboriginal fisheries and created a situation where there was a potential for conflict. I am of the view that the facts of this case are similar to the facts in the Kapp case.

I am of the view that a discharge, while clearly in the interests of the accused, would be contrary to the public interest and that it would not address the need for general or specific deterrence. [ 40 ] The mitigating factors in this case (the motivation of the accused, the cooperation of the accused with Department personnel, and the personal circumstances of each of the accused, including the fact that many, if not most of them, do not have a record of offences, similar offences) will be addressed by the level of fines that I am going to impose. [ 41 ] There will be fines of $200 for all of the accused, with the exception of Mr.

Cummins and Mr. Nichols. Mr. Cummins' fine is $300 as this is his second offence. Mr. Nichols is to be fined $25 to reflect his personal circumstances. I am satisfied that a fine of $25 to Mr. Nichols will be the equivalent of a much higher fine to the others. [ 42 ] Mr. Robin Bemi is fined $200 on each Information as he was convicted on both Informations. There will be six months to pay the fines. [ 43 ] UNIDENTIFIED SPEAKER: Mr. Bemi is deceased, Your Honour. [ 44 ] THE COURT: Oh, I am sorry. [ 45 ] MR. LE DRESSAY: I apologize, Your Honour, that should have been abated. [ 46 ] THE COURT: So Mr.

Bemi is deceased. All right, then the proceedings are abated against Mr. Bemi. [ 47 ] THE CLERK: Sorry, how do you spell that, B-e-m-i? [ 48 ] THE COURT: Yes.

[ 49 ] THE CLERK: And, sorry, there's two files or file numbers? [ 50 ] THE COURT: Mr. Bemi is on both of the Informations, I believe, Robin Bemi. [ 51 ] THE CLERK: Okay. I just don't have them, Your Honour. [ 52 ] THE COURT: Yes, Robin Troy Bemi, Information 33510-C2 and 128017. I will give you the Informations. [ 53 ] UNIDENTIFIED SPEAKER: Your Honour, some -- a number of the fishermen approached me after the last one saying that they probably would refuse to pay fines and wanted you to set how much jail they would be required. [ 54 ] THE COURT: I have already pronounced sentence.

They have six months to pay the fine. If they choose not to pay it in six months, then it will be dealt with. [ 55 ] UNIDENTIFIED SPEAKER: Thank you, Your Honour. [ 56 ] THE COURT: Thank you. Do you have any comments on that, Mr. Le Dressay? [ 57 ] MR. LE DRESSAY: No. [ 58 ] THE COURT: All right. Thank you. [ 59 ] MR. LE DRESSAY: I think all you can do is set the amount of the fine. [ 60 ] THE COURT: That is what I have done. Thank you. (REASONS FOR SENTENCE CONCLUDED)