R. v. Le, 2019 BCPC 116

Citation: R. v. Le 2019 BCPC 116 Date: 20190606 File No: 16250-1 Registry: Powell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TUAN HUU LE REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K. ARTHUR-LEUNG Counsel for the Crown: A. Switzer Counsel for the Defendant: I. Tully-Barr Place of Hearing: Powell River , B.C.

Dates of Hearing: May 23, 2019; June 6, 2019 Date of Sentence: June 6, 2019 [ 1 ] Tuan Huu Le entered guilty pleas on May 23, 2019 to Amended Counts 1 – 3, such that between January 15 to April 1, 2018, at or near the City of Powell River, in the Province of British Columbia, while carrying out an activity under the authority of a fishing licence, to wit: Area G commercial crab licence, serial no. 425570, did fail to comply with a condition of the licence, to wit: from January 15 to April 1, 2018, traps shall not be hauled more than once per calendar week, contrary to Section 22 (7) of the Fishery (General) Regulations , thereby committing an offence contrary to

Section 78 (

a) of the Fisheries Act . Further, Mr. Le entered a guilty plea to such that on or between April 1 to April 12, 2018, at or near the City of Powell River, in the Province of British Columbia, did fish without being under the authority of a licence issued under the Pacific Fishery Regulations, Fisher (General) Regulations, or the Aboriginal Communal Fishing Licences Regulations , contrary to Section 26 (1) of the Pacific Fisher Regulations , and did thereby commit an offence contrary to

Section 78 (

a) of the Fisheries Ac t. Mr. Le further entered a guilty plea such that between January 28 to February 19,

2018, at or near the City of Powell River, in the Province of British Columbia, while carrying out an activity under the authority of a fishing licence, to wit: Area G commercial crab licence, serial no. 425570, did fail to comply with a condition of the licence, to wit: no person shall set a trap and leave it in the water for more than 18 consecutive days without lifting the trap from the water and removing all crab from it, contrary to Section 22 (7) of the Fishery (General) Regulations , thereby committing an offence contrary to

Section 78 (

a) of the Fisheries Act. The Final Count for the guilty plea is that Mr. Le, on and between January 20 and April 22, 2018, at or near the City of Powell River, in the Province of British Columbia, did sell fish caught in contravention of the Fisheries Act or the regulations, and did thereby commit an offence pursuant to

Section 78 (

a) of the Fisheries Act . [ 2 ] The circumstances are such that from January – May, 2018, Mr. Le was the skipper on a commercial vessel owned by the company Sea World Fisheries Ltd. and held the Area G commercial crab licence. From January 15 – March 31, 2018, traps were only permitted to be pulled once per calendar week with the purpose of preserving and conservation management of the soft shell crabs.

This was a fleet wide restriction. [ 3 ] Commercial fisheries is heavily regulated which includes the electronic monitoring of activity from the crab traps. [ 4 ] The Coast Guard determined that on April 6, 2018 Mr. Le had 4 strings of traps affixing a total of 66 traps which contained crab. All 131 live crab were released. On April 7, 2018, the Coast Guard found that Mr. Le had 5 strings in the water containing 88 traps and 149 live crab were released. [ 5 ] Crown counsel notes that Mr. Le told the Coast Guard that he did not read the conditions of the licence and he simply thought that he knew the rules.

The Officer offered to provide to Mr. Le the coordinates, but he declined, telling the officer that he knew the coordinates. Mr. Le believed that he could double haul. [ 6 ] The facts are such that on April 9, 2018 Crown submits that the licence was paid for, however, was on hold due to the non- compliance of Mr. Le. A company representative told him that he had not submitted his log book and that he was not to fish. The skipper is required to maintain an accurate log book at all times and submit it 28 days after the month in which fishing occurred.

This log book is maintained by the skipper, who in this instance is Mr.

Le, but owned by the company. [ 7 ] In submissions, Crown counsel respectfully submits that the value of the slip submitted totals $14,513.00, however, there is no assurance that all of the slips were submitted and thus the cost of committing the offence should not be taken into consideration. [ 8 ] The reality is that there are few fisheries officers on patrol at any one time for the vast area of waters and oceans off the West Coast and this under staffing is a daunting undertaking by those fisheries officers to keep on top of people who will take advantage of that under staffing. [ 9 ] Of note as an aggravating circumstance is that Mr.

Le appears before this Court with four historical entries for Fisheries Act violations. In 2012 a formal warning was issued against Mr. Le for Section 27 (1) (

a) Fisheries Act violations. There are two entries on October 24, 2015 with convictions registered against Mr. Le for having fishing gear markings not legible or visible at all times and in carrying out an activity under the authority of a licence that contravened or failed to comply with a condition of the licence. He was fined $500.00 and $750.00 respectively. On February 19, 2017, he was deemed convicted in the amount of $300.00 for catching fish and retaining fish which is prohibited. Thus, Mr. Le has prior entries containing a Warning and Convictions. In addition, Mr.

Le has one youth record criminal entry and one adult criminal entry from 2007 for robbery. I will accede that the criminal entries are historical in nature, however, the fisheries entries are current and thus those entries are of an aggravating nature. [ 10 ] Mr. Le is familiar with the fishing industry and there rests a high degree of culpability on the part of Mr. Le. Mr. Le consistently violated the mandated conservation measures in place over a number of months hauling multiple times to his benefit and over soaked, thus causing potential harm to fish and crabs. Mr.

Le flagrantly disregarded the law and the regulations in place. Mr. Le admitted to the Coast Guard officials that he did not read the terms and conditions of licence, despite him being engaged in the industry for a number of years and thus would know the onus is on him to ensure with each and every year and each and every licence that the requirements of operation are carried out. [ 11 ] The harm caused by the repeated flagrant disregard by Mr.

Le is concerning and the potential for harm on the mandated conservation in place for crabs on the Pacific Coast is significant had he not been caught. [ 12 ] Crown counsel reviewed a number of authorities to submit the sentencing position of Crown, with those cases being: Regina v. Jerome Schafhauser , 2017 BCSC 2287 The Court imposed a $5,000.00 fine per count for a total of $10,000, however, gear was not forfeited. Mr. Schafhauser lied to the fisheries officer and exceeded the allowable quota.

I am guided by the Schafhauser , (supra ), decision wherein at Paragraphs 11 and 12, our Courts stated: The Fisheries Act is regulatory legislation designed to protect and preserve a valuable resource and any contravention of it must be taken seriously. Accordingly, the predominant sentencing consideration must be deterrence both specifically of the accused and generally of other members so the public who are inclined to act in the same manner.

Penalties must be sufficiently severe to communicate to the accused that there is a high risk associated with their illegal activities both for the resource they are affecting and to themselves for their conduct ( See: R. v. Cox, [1999] N.J. No. 264 (Nfld Prov Ct) and R. v. Forsey , the latter at [1999] N.J. No. 264 (N.L.P.C.) at paragraph 20 .) …I note that many of the authorities refer to the fact that a penalty should be more than simply a cost of doing business. In particular, in this instance, that is significant because this is a regulatory statute designed to preserve a valuable resource.

In sentencing on regulatory offences, our Court of Appeal has accepted the following sentencing principles: culpability, prior record, acceptance of responsibility and remorse, the damage or harm done, and deterrence….

Her Majesty the Queen and Thomas Kearley and Kevin Lavhey, 2006 CarswellNfld24 This matter involved both Criminal Code and Fisheries Act offences for stealing lobster from other persons. The Newfoundland Court explained in significant detail the applicability of the goals in sentencing in such fisheries offences and reliedupon R. v. Domtar, [1998] (Ont. CJ), at Paragraph 3: “…we are part of an interdependent web of existence. ….We have a responsibility,individually and collectively….to protect our surroundings, not only for future human generations, but also for other species with whichwe share the Earth.

At Paragraphs 14 – 16, the Court held: As stewards of the environment, we all share the responsibility of conserving natural resources. ….In sentencing, ….the Court mustconsider as goals of sentencing the principles of specific and general deterrence, as well as protection of the natural resource, andprotection of those among us who rely on a carefully managed and well regulated fishery to make their living from the sea. Theimposition of fines for past offences has failed to specifically deter…. Regina v. Dennis Gerald Roberts, BCPC, Prince Rupert, July 17, 2018 (Brecknell,

J) In the Roberts, (supra), decision, my colleague also relied upon the Schafhauser, (supra), decision wherein at Paragraph 11 the Courtheld: The Fisheries Act is a regulatory legislation designed to protect and preserve a valuable resource and any contravention of it must betaken seriously. Accordingly, the predominant sentencing consideration must be deterrence, both specifically of the accused andgenerally of other members of the public who are inclined to act in the same manner.

Penalties must be sufficiently severe tocommunicate to the accused that there is a high risk associated with their illegal activities both for the resource they are affecting and tothemselves for their conduct. I draw significant guidance from my colleague in the Roberts, (supra), decision wherein he reviews the narrative and requirements forthe considerations that a Court must make in determining the appropriate fine, relying upon R. v. Terroco Industries Limited (2005),2005 ABCA 141 , 196 C.C.C. (3d) 293 and R. v.

Brown, 2010 BCCA 225 with those five prongs to consider are culpability,prior record, acceptance of responsibility and remorse, the damage or harm done and deterrence. Regina v. Morash, 1994 CarswellNS 511 This 1994 decision involved gill netting in a closed area and the Court imposed a $14,000 fine and a 3 month licence suspension. Crown counsel, in utilizing the appropriate tables to equate this quantum fine to 2019 would equate to a $22,000 fine.

The Morash, (supra), decision of 1994 drew upon the 1991 changes by Parliament to note that Parliament signalled with the changes inthe fines that it viewed illegal fishing as a serious offence in Canada and that it was “…quite common for judges imposing sentences forviolation of Fisheries Act to impose forfeiture of the sales proceeds of catches…. (Paragraph 12) Sadly, despite the importance of ensuring preservation of all fisheries stocks, even in 1994, the Court noted: …the fishing industry is self-enforcing.

Fisheries and Oceans has neither the manpower nor the time to inspect for fishing activities of allfishers. Those who do not act within the law have a right to expect that those who do not do so will be sanctioned in such a way as tomake compliant behaviour the only reasonable and practical option. Fines alone cannot do this. They can too easily become a mere costof doing business. Licence sanctions, on the other hand, strike at the very heart of the wrongdoers privileged positions.

Those words of 1994 echo true in 2019 in that the fishing industry is still self-enforcing and those who abide by the law and theregulations do so knowing the expectations imposed and required upon them and thus those like Mr. Le who chose to flagrantlydisregard the law over a period of time will face significant sanctions. This will address the principles of sentencing which includelargely deterrence and denunciation. The moral culpability of offenders in this self-enforcing commercial enterprise and those whoviolate it is very high. Regina v Norman Thor Noringseth, 2016 BCPC 183 (Flewelling,

J) In this matter my colleague imposed a $20,000 fine and in doing so was guided by the decision of R. v. Rideout, 2005 NSSC 4 (NSSC) atParagraph 15: In sentencing cases such as the matter before the Court, a Judge must also bear in mind regulation offences such as those provided underthe Fisheries Act are designed to protect and preserve a valuable resource and any contravention of them must be taken seriously. TheFisheries are a natural resource and are in danger of being depleted or destroyed and this would have wide ramifications for not onlyfishers but society in general.

Deterrence must be a primary consideration and penalties have to be imposed to reflect the seriousness ofthe offences and to force offenders to understand the ramifications for violation of these regulations to both themselves and society. Regina v. Perry, [2003] N.J. No. 27 Mr. Perry was fined $25,000 in 2003 and there was a forfeiture of the monies from the sale of the crab with the intention of focussing ongeneral deterrence with Hyslop, J stating at Paragraph 14: How then to effect general deterrence? It is my view that it is clearly not in the public interest for the accused to retain his catch.

He hadno right to fish where he did and should have known that. Allowing him to keep his catch would be passing the wrong message to others

who would mine our ocean floors for gain. The Court found that forfeiture alone of the fish was not a sufficient deterrent. Regina v. Stan William Steer , BCPC, Masset Registry, December 11, 2013 (Seidemann III,

J) My judicial colleague imposed a $20,000 fine and a prohibition for crabs that were illegally harvested but were able to be returned to the water. Regina v. Kyle Arion Brynjolfson , BCPC, Prince Rupert Registry, July 11, 2017 (Malfair,

J) This was a joint submission of a $15,000 fine and a loss of a catch. Regina v. Walter Clement Fitzpatrick , BCPC, Port Hardy Registry, May 10, 2018 (Crockett,

J) The Court imposed an $8,000 fine for a fisherman who was well experienced and had received historically five prior official warnings from the Department of Fisheries over the course of his fishing career. Regina v. Henneberry, 2009 NSSC 95 Regina v. Croft, 2003 NSCA 109 A $5,000 fine was imposed for undersized crabs. [ 13 ] Defence counsel respectfully submits by way of antecedents that Mr. Le is currently 32 years of age, born in Vietnam, has secured some high school credits and the boat owners are family friends. The licence is owned by the company but is leased by his mother.

The business itself is operated by his mother. He submitted that his father died from cancer in December 2017 and he fished in January 2018 while his mother remained in Vancouver. He submits to this Court that Mr. Le was simply confused about the hauling on two dates. As a result of these charges, the crab business was shut down in June 2018 and he trained to become a mechanic, however, for reasons that I do not wholly understand, Defence counsel submits that this did not work out for Mr.

Le and now he is currently a deck hand crabbing as of April 2019 in Tofino and his goal is return to the fishing and crabbing industry with his mother. [ 14 ] In addressing forfeiture, he submits (with no proof), that the 153 traps seized are valued at approximately $150 each and that there is approximately $6,000 of rope seized for a total value of $33,000.00, none of which he says are his items and that they belong to his mother. [ 15 ] Mr. Le has been engaged in the fishing industry for a significant period of time.

Blaming it on confusion not knowing the dates is simply not acceptable nor quite frankly, believable. I do not find that submission credible. Mr. Le has prior fishing infractions. He is and should be intimately familiar with the regulations and requirements and chose not to do so. Exhibited in this proceeding is an Affidavit sworn May 24, 2019 from Robert Edwards, an employee of the Department of Fisheries and Oceans and is a licence Officer, Pacific Fishery Licence Unit. Specifically affixed to such Affidavit are the “ Conditions of Crab Area G Licence Period January 1, 2017 to March 31, 2018 ”.

Of note, this was applicable to Mr. Le. I draw to the attention that it was in place as of January 1, 2017, therefore I am unable to accept as being truthful the submission from Mr. Le that he was confused and was dealing with the death of his father who died in December, 2017 because these requirements for Crab Area G were in place for some 12 months before the offences were undertaken by Mr. Le. I will note that of the Licence conditions that it very clearly states under Item 4: Manner in which gear is permitted to be used: …

(2) From January 15, 2017 to April 15, 2017, and from January 15, 2018 to March 31, 2018 traps shall not be hauled more than once per calendar week.

At all other times, traps shall not be hauled more than once per day. [ 16 ] Additionally exhibited in this sentencing proceeding before me is the Impact Statement from Fisheries and Oceans for Crab Management Area G from David Fogtmann, Fishery Manager, Comox, British Columbia, which in part states: Commercial crabbing is a competitive fishery for legal-sized male crab, and numerous measure are used to manage the fishery. … Seasonal closures or gear haul restrictions help to reduce fishing activity during legal male crab moulting and soft-shell periods.

Higher crab injuries and mortalities, lower catches, and an inferior product with lower meat content are associated with fishing during soft-shell periods.

Other management measured include non-retention of soft-shell crab trap limits, area closures, gear specifications, trap soak restrictions, trap haul limits, electronic monitoring and submissions of accurate harvest logs. … British Columbia’s commercial crab fishery is among its most important, accounting for 32% of the wholesale value of the province’s wild shellfish products in 2015… Monitoring of the fishery is a licence condition in the commercial crab fishery, and harvesters can choose to carry a fisheries observer on board their vessel, or select another acceptable form of monitoring; most opt for electronic monitoring…It can be used to assess compliance with licence conditions and regulations concerning, for example closed times or areas, international boundaries, trap limits, and soak time limits (such as hauling traps more than once more.

… The 18-day maximum soak time limit is a licence condition. It helps ensure that crab fishers maintain their traps or remove them from the water when they are not being fished. Even legal sized males can die or be injured in the traps so limiting the soak time between trap hauls minimizes unnecessary crab injury or mortality in the traps and unnecessarily impacts to stock productivity, and the economic waste of harvesting dead or injured crabs. … Catch records are the primary indicator of abundance in the crab fishers in Area G.

The crab harvest logbook program provides detailed information about gear, general fishing locations, fishing times, fishing methods and catch that are not available through other means of data collection. Lack of compliance with catch log submission, inaccurate and fraudulent catch reporting creates problems….Analyses of fishery dependent harvest log data form the basis of many management decisions in shellfish fisheries. [ 17 ] In support of the sentencing position, Defence counsel seeks to rely solely upon the Provincial Court of BC decision of Regina v.

McKinnell Fishing Ltd ., 2017 BCPC 236 , from the Duncan Registry, wherein significantly low fines were imposed, however, the facts are very different from those before me with Mr. Le. In the McKinnell, (supra ), decision, the traps were actually legally dropped in a permitted area, however, were dragged into a prohibited area either by currents or other vessels when the traps were retrieved. What can be drawn from the McKinnell, (supra ), decision is that there is no margin for error with this and that is the message that must be kept in mind with fisheries matters.

The Act and the Regulations are in place for very clear reasons. [ 18 ] Crown counsel respectfully submits that it is appropriate to impose a $35,000.00 fine, a 4 to 6 month fishing prohibition, and a forfeiture Order. Defence counsel respectfully submits that there should be an $8,000.00 fine, with no prohibition and no forfeiture. [ 19 ] After considering the principles of sentencing, with the focus on both deterrence, (general and individual) and denunciation, after applying the case law, and considering the aggravating factors before me which include that Mr.

Le , being an experienced fisher should have known and was required to know the requirements of the Area G, that he comes with prior violations for fishing, that this occurred over a number of months, that a significant amount of traps were utilized and lines, and considering the mitigating factors such that this is a guilty plea, I am not satisfied to impose the sentence sought by either counsel. I have also considered the mitigating factors before me. There is no doubt significant culpability that rests upon Mr. Le.

The sentence sought by Defence counsel is simply contrary to the intent and purpose of the legislation and is not supported by case law. The conduct of Mr. Le over the course of many months I find to be of significance. I am mindful that each and every sentence imposed upon a person must be proportionate and balanced, being tailored to that individual and the facts surrounding that offence or offences. The reality of the matter is that Fisheries and Oceans is woefully under-staffed. This incredible country is bound by significant bodies of water.

The Pacific Coast is vast and staffing is significantly under-resourced. It thus dangerously relies upon the methods in place for monitoring and significantly upon an honour system of self-regulation in terms of monitoring. Mr. Le violated that trust at its core in addition to simply put, breaking the law, to which he ought to have been fully aware of. His actions were unfair to those fishers who are honest and law-abiding.

Globally, he failed to abide by his basic core principles as a fisher to be responsible, in both an individual and collective capacity, to ensure that the valuable fishing industry is sustainable and is both maintained and proper conservation measures are both respected and followed as set out. Mr. Le failed to respect the environment. Mr. Le failed to respect his fellow law-abiding fishers. Mr. Le failed to respect the community. The law and its regulations are in place to protect these waters and its inhabitants to properly manage the resource not only at this time but for future generations.

In the decision of Canada v. Oldford (NLTD ), at Paragraph 28, the Court held: We are stewards of our environment. …Those who flagrantly violate fish and game legislation are as condemnable for their methods as are the most culpable polluters. Natural resources, be they fish, fowl, pristine waterways or virgin forests, are finite reserves that must be protected. [ 20 ] In considering the sentence to impose, I am mindful that Mr. Le only verbally submits that the 153 crab traps and the ropes belong to his mother and or to corporate entity.

There is no documentation provided in this sentencing proceeding to support anything to support that the traps and or the ropes are owned by his Mother or a fishing corporate entity. As noted in the decision of Lavhey, (supra ), the Court addressed forfeiture and noted, for example, that offences could not have been committed without a vessel and in the matter before me, these offences could not have been committed without the rope and the 153 crab traps. The traps and the ropes are an intricate part of the commission of the offence concurrently with the culpability of Mr. Le himself.

Forfeiture is a remedy that the Crown is seeking and the Court in this matter has the discretion to grant it in whole or in part. In the decision of Regina v. Sandover-Sly , [2002] BCJ No 1532 , the British Columbia Court of Appeal made it clear that forfeiture of property could be imposed without regard to the totality of the sentence being imposed. The commission of these offences in terms of the traps and the rope is intricately intertwined with Mr. Le himself. The offences were committed by Mr. Le and could not have been committed without the traps and the ropes.

These offences were committed over a course of months and not a one-time occurrence. Mr. Le knew that and ought to have known that and thus if those traps are truly owned by his Mother or a corporate entity, (and I again submit that there is no evidence of such before me today), then Mr. Le knowingly undertook that risk himself to his Mother and or to the corporate entity.

Forfeiture itself does not offend the principle of parity and there is a remedy thereafter available to address any forfeiture Order that may be imposed. [ 21 ] The protection of the environment is a key value held across Canada and here on the Pacific Coast there are virtually daily media postings about the volatility of fishing stock on the Pacific Coast, whether it if a type of fish and or crab. That unpredictability and uncertainty season to season is at the core reason why these laws and regulations are put in place for each and every fisher.

Strict compliance with these laws and regulations is necessary for respect and maintenance of crab stock on the Pacific Coast and to permit an equal footing for those who fish honestly and abide by the law. Mr. Le is very knowledgeable about the fishing industry. As noted in the exhibited Impact Statement in its concluding statement: Harvesters who choose to ignore licence conditions give themselves an unfair advantage; undermine the effective management of the fisher; and threaten the sustainability of the resource.

Any sentence to be imposed must be more than a simplistic cost of doing business. It must address the principles of sentencing with emphasis on deterrence and denunciation. Mr. Le and others who may entertain the thought to commit similar offences must know that these actions are not acceptable to the values held by Canadians who respect the law and for both the current and future generations who uphold not only the values of abiding by the law, but are cognizant of the importance of respect for the environment and to sustain and preserve our fisheries here on the Pacific Coast.

This is a strict liability offence. Resource management, protection of the environment and conservation are the key underlying values and I respectfully disagree with the submission of Defence counsel that conservation is not to be considered with significant weight. Defence counsel submits that a mitigating component is that Mr. Le submits that if he catches soft shell crabs that he “gently” returns them to the water knowing he can benefit from harvesting them the following year. I do not find that a mitigating factor for consideration.

Defence counsel respectfully submits that as a result of these offences he has already been punished and that he has suffered deterrence and denunciation as it impacted his ability to develop a crab business operation with his mother. As I have noted, the monitoring of the crabbing industry is done via computer monitored chips and thus Defence counsel seeks to convince this Court that deterrence is a lesser factor because that monitoring in place already deters such offences, however, I respectfully disagree.

Again, this industry is largely based on self-regulation and honesty due to the chronic understaffing of fisheries and conservation officers. Mr. Le violated that. Contrary to the submission of Defence counsel who seeks to convince this Court that by being caught, that in and of itself is a harsh penalty to which I respectfully disagree. [ 22 ] After considering all of the foregoing, I will impose a sentence of a $20,000.00 fine, a 4 month fishing prohibition, and a forfeiture Order.

More specifically, on Count 1 as amended merging Counts 1 – 3, I will impose a $5,000 fine; Count 4 will be a $2,000 fine; Count 5 will be a $2,000.00 fine; and Count 7 will be a $2,000.00 fine, with the balance of the fine, that being $9,000.00 shall be paid in accordance with

Section 79.2 (

f) of the Fisheries Act to the Minister of Fisheries and Oceans, with a direction that the sum be used on projects which purposes are the conversation and protection of fish and fish habitat, with specific reference to the preservation of fisheries and fish habitat in and around the Powell River, British Columbia waters. All such shall be paid within 12 months of the date of this Order. __________________________ The Honourable Judge K. Arthur-Leung Provincial Court Judge