R. v. Wells Date:, 2015 BCPC 312

Citation: R. v. Wells Date: 20151015 2015 BCPC 0312 File No: 16099-1 Registry: Port Hardy IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHEAL CLIFFORD WELLS ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: J. Farenholtz Appearing on their own behalf: Michael Wells Place of Hearing: Courtenay , B.C. Date of Hearing: October 15, 2015 Date of Judgment: October 15, 2015

[ 1 ] THE COURT (Orally): Michael Clifford Wells is before me for sentencing. Mr. Wells has entered a plea of guilty on a charge under the Fisheries Act , which alleges as follows: that he, on or about the 13th August 2014, at or near Robson Bight, British Columbia, in Canadian waters, being a person carrying out an activity under the authority of a licence, to wit: a 2014 Area H commercial troll fishing licence, did fail to comply with a condition of the licence, specifically, he failed to operate a revival tank while actively fishing with hooks in water, contrary to Section 22(7) of the Fishery (General) Regulations, thereby committing an offence contrary to

Section 78(

a) of the Fisheries Act . [ 2 ] Having entered a plea of guilty with respect to that offence, Crown then outlined the circumstances surrounding the alleged offence. No issue is taken by Mr. Wells with respect to those circumstances. [ 3 ] Briefly, the charges arise out of Fisheries Officers boarding the vessel Pacific Reward in Johnstone Strait in an area north of Campbell River, Province of British Columbia, for the purposes of conducting an inspection. The Pacific Reward was under the direction and being skippered by Mr.

Wells. [ 4 ] The observations of the Fisheries Officers were that there was no operative revival tank being deployed at the time that the Pacific Reward was conducting fishing. That was pointed out by the Fisheries Officers to Mr. Wells. He then identified a tote which did comply with the requirements of a revival tank which contained a number of storage items and was not in operation at the time. [ 5 ] The implication of the non-operation of a revival tank is set out in a victim impact statement that was filed in connection with these charges.

The victim impact statement was prepared by Beth Pechter, Fisheries Management Coordinator of Fisheries and Oceans Canada, in October of 2014. [ 6 ] It outlines that the required use of a revival tank during the commercial sockeye salmon fishery arises out of concerns identified as early as 1998 about the fishery-related mortality of non-target species in the upper river and interior Fraser River Coho salmon runs.

As a result of an intensive review and public consultation that was initiated by the Department of Fisheries and Oceans as to selective fishing methods that would address those concerns, it became mandatory in 1998 to employ selective fishing techniques, including the use of an operational revival tank while engaged in commercial salmon fishing. [ 7 ] The impact statement also points out that the purpose of the use of revival tanks is in conjunction with a policy emphasizing that selective fishing is a requirement of conservation-based fisheries and that the ability of harvesters to fish selectively and to avoid or release unharmed non-target species is fundamental to meeting the conservation requirements of the Fisheries Act and the Species at Risk Act ; also, importantly, it meets Canada's international commitments to preserve biological diversity and to responsibly manage fish resources. [ 8 ] The impact statement also points out that commercial fisheries are timed to avoid periods when species of concern are most prevalent in Johnstone Strait.

In addition, when commercial troll fisheries are open, selective fishing techniques are required to ensure minimal impact on species of concern.

Selective fishing techniques include, but are not necessarily limited to, such things as the use of barbless hooks and the mandatory use of an operational revival tank of a designated design and the mandatory release of non-target species back to the water in the manner that causes least harm to them. [ 9 ] The impact statement also points out that the purpose of a revival tank is to temporarily hold and revive injured or stressed fish which are not permitted to be retained during the fishery.

In order to implement that, the conditions of the 2014-2015 Salmon Area H licence have been framed in such a fashion as to require the operation of the recovery tanks. Specifically, it is condition 3(4) of the conditions attached to the 2014-2015 Salmon Area H licence.

It sets out the design specifications as well as the requirement to use an operational revival tank while participating in the Area H Commercial Troll Fishery. [ 10 ] The impact statement further goes on to indicate as follows [as read in]: If the commercial troll fleet fails to employ selective fishing techniques, the conservation of species of concern may be jeopardized. If the conservation of species of concern is jeopardized due to lack of compliance with selective fishing techniques, further restrictions will be placed on the fleet which could result in the loss of fishing opportunities.

The loss of fishing opportunities will penalize compliant harvesters' processing plants and the economies of coastal communities which depend on commercial fishing. [ 11 ] The impact statement further goes on to indicate that the offence to which Mr. Wells has entered a plea of guilty is considered by Fisheries and Oceans to be a serious offence. It is also considered to be serious by representatives of the commercial fishing industry.

The use of penalties is sought in cases of this nature to represent a significant deterrent. [ 12 ] The sentencing position advanced by Federal Crown is that this matter should attract a fine of $500. Crown also suggests that the recommendations made in the victim impact statement as to the designation and use of that fine be considered and form part of any order that I make. [ 13 ] The accused person in this case, Mr. Wells, is 56 years of age. He has been a fisher for some 35 years. He comes from a fishing family, his father having been engaged in the industry for some 64 years.

He is single, but has two adult children. [ 14 ] Crown is not alleging any prior record or allegations of violations under the Fisheries Act or its Regulations. [ 15 ] Mr. Wells has extensive history of serving on committees and in groups which advise the Department of Fisheries and other government organizations, specifically with respect to salmon and halibut stocks, and formerly about other species including herring. In other words, he has performed a service and leadership role within the fishing community.

[ 16 ] He acknowledges the importance of compliance with the licence. He has indicated that he views the fine as being high but not unreasonable. He does not require time in order to pay the fine. [ 17 ] Having taken into account all the circumstances in this matter, I am of a view that the suggested fine is a fit and appropriate sentence for this offence. In accordance with the victim impact statement, I am going to follow the recommendation, and that there will be a further order as follows: that there will be an order pursuant to subsection 79.2(

f) of the Fisheries Act which will require Mr. Wells to pay to the Minister of Fisheries and Oceans Canada, on behalf of Her Majesty, Queen in the Right of Canada, the fine monies that will be used to promote proper management and control of Pacific salmon stocks in a manner which would increase knowledge to the benefit of Pacific salmon stocks. Use of funds will be at the discretion of the Regional Salmon Coordinator or his designate, following discussions with the elected representatives of the advisory committees for the salmon fisheries.

No diversion of funds to other departmental activities will be permitted. Suggested potential uses for the award include the following: (1) a collaborative program between DFO and local First Nations to benefit local Pacific salmon stocks; (2) a collaborative program between DFO and local enhancement groups to benefit local Pacific salmon stocks; (3) a collaborative program between DFO and the Pacific Salmon Foundation to benefit local salmon stocks. [ 18 ] Therefore, that will be the form of the additional order that I make. [ 19 ] I will allow Mr.

Wells 30 days in order to pay the fine in the manner so designated; the fine to be paid through the Clerk of the Court here in Courtenay. [ 20 ] Anything further with respect to this matter? [ 21 ] MR. FARENHOLTZ: Nothing, Your Honour. [ 22 ] THE COURT: No victim fine surcharges attaches to the -- [ 23 ] MR. FARENHOLTZ: No. [ 24 ] THE COURT: -- this offence? [ 25 ] MR. FARENHOLTZ: No, Your Honour. [ 26 ] THE COURT: All right. That will be the disposition then. [ 27 ] Thank you, Mr. Farenholtz, and thank you, Mr. Wells. [ 28 ] MR. FARENHOLTZ: Thank you, Your Honour. (REASONS CONCLUDED)