R. v. Thompson Date:, 2017 BCPC 351

Citation: R. v. Thompson Date: 20171019 2017 BCPC 351 File No: 16291-2-C Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RAYMOND JESSE THOMPSON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE FLEWELLING Counsel for the Crown: T. Ian McFadgen Counsel for the Defendant: Albert E. King Place of Hearing: Port Hardy and Campbell River , B.C. Dates of Hearing: November 17, 2016; January 4, May 25 and June 16, 2017 Date of Judgment: October 19, 2017

INTRODUCTION and CHARGES [ 1 ] Mr. Thompson has pleaded guilty to fishing during a close time, namely a Rockfish Conservation Area, between October 28, 2012 and October 31, 2012 (Count one) as well as failing to hail in within the prescribed time - not less than twenty four hours prior to landing fish - on November 1, 2012 (Count three). POSITION OF PARTIES [ 2 ] Crown seeks a fine in the amount of $7000 on count one and $1000 on count three. The most contentious issue is the “additional fine” pursuant to

section 79 of the Fisheries Act sought by Crown in the amount of $34,573 which represents the value of Mr. Thompson’s catch caught in the closed area. Crown emphasizes the need for general deterrence as the paramount consideration in sentencing for offences such as this. [ 3 ] Counsel for Mr. Thompson does not vigorously oppose the fines although suggests that an appropriate fine for Count one is $4000. He accepts that a $1000 fine for Count three is appropriate. With regard to the

section 79 order, he submits that this is discretionary; that Mr. Thompson has had years in which his income has been modest since the offences; if a decision is made that all the funds should be repaid, Mr. Thompson should have ten years to pay. [ 4 ] Counsel for Mr. Thompson asked the court to consider, in exercising its discretion, Mr.

Thompson’s remorse, the fact that he has accepted responsibility for the fact that he did not exercise due diligence; the act was not intentional; he recorded the area in which he was fishing including all the fish caught and was not attempting to hide where he was or what he was doing; and lastly, Mr. Thompson understands the important of the fishing resource. [ 5 ] He submits that a financial penalty that would be devastating Mr.

Thompson financially is not what our courts have intended in the pursuit of the sentencing principle of general deterrence. [ 6 ] He also points to the fact that it took approximately three years for the Crown to lay an information respecting this matter and, while Mr. Thompson acknowledges that the money representing the value of the catch was returned to him by the Department of Fisheries and Oceans, he struggled financially subsequent to that and spent those funds not knowing whether or not he would be charged.

FACTS AND EVIDENCE [ 7 ] On October 24, 2012, the vessel “The Western Gambler” hailed out from Port Hardy advising that they were heading to Area 3D and fishing for halibut. [ 8 ] The skipper or master of the vessel was Raymond Thompson. Mr. Thompson was raised in a family of fishermen. His father, uncles and grandfather on both sides of his family were commercial fishers. He received his first pay working on his father’s seine fishing boat when he was only 11 years old.

He is 61 years of age and has been a commercial fisherman for some 49 years. [ 9 ] The fishing trip on October 24, 2012 was the first time he had fished for halibut, although he was experienced in fishing for salmon in herring. [ 10 ] At the start of the trip his hail out indicated that he was going to fish in the area called 3D in and around the Brooks Peninsula. The fish were scarce and the weather worsened. They ended up travelling farther north ending up behind the Scott Islands. These islands are in area 5A and in a Rockfish Conservation Area. Mr.

Thompson ended up fishing behind Lanz Island and remained there for the duration of the trip. [ 11 ] He says that he did not know he was fishing in a closed Rockfish Conservation Area. He also testified that at the time he had not even heard of a Rockfish Conservation Area and prior to heading out had only tried to look up on the Internet to see if there were any halibut closed times in the area where he was planning to fish. [ 12 ] While they were fishing they saw a Coast Guard vessel anchored at nearby Cox Island, the second of the islands that make up the Scott Islands. Mr.

Thompson’s evidence was that no one came over to tell him they were fishing in a closed area. [ 13 ] The trip continued to have problems. The electronic equipment stopped working and Mr. Thompson terminated the fishing trip. Throughout the time he was fishing all his other camera equipment were operating and all the fish he had hauled in were done so in a proper manner - in front of the camera. His evidence was that when they realized equipment was not working they were still eight hours from Port Hardy and intended to hail in as soon as they had cell coverage.

Surprisingly, they did not have a satellite phone on board the ship. He was unaware, at that time, that there was a twenty-four hour hail in requirement when fishing for halibut. [ 14 ] When they got into Port Hardy he hailed in approximately three hours before they arrived at the unloading facility. They were met at the landing dock by fisheries officers and were advised that they had been fishing in a closed area. [ 15 ] The Department of Fisheries and Oceans seized and sold the catch and initially retained the funds from the sale. However, in July, 2013, the funds, amounting to $35,621, were returned to Mr.

Thompson although he was warned that the matter was still under investigation and charges may be laid against him. He was advised, in writing, that the funds being returned could be subject to forfeiture pending the outcome. [ 16 ] I am satisfied on the evidence that Mr. Thompson was made aware that the returned funds could be subject to an order that they be forfeited. Indeed, charges were not laid until September 23, 2015 when the information setting out the charges was sworn. By that time, Mr. Thompson thought that DFO had dropped the matter and he had already spent the money.

[17] Mr.

Thompson has a prior record for fisheries offences: July 13, 1997 - $200 fine for catching and retaining more crab than allowed contrary to the sport fishing regulation; May 3, 1998 - $300 fine for failing to hail in in compliance with a commercial prawn fishery license; August 4, 1998 - a warning was issued for failing to possess an amendment to his license required by his license conditions (WesternGambler); November 30, 2000 - $350 fine for failing to submit the 2000 prawn fish season logbook as required by his conditions of licence; August 5, 2010 - $500 fine for failure to have a properly operating revival tank on board the vessel Western gambler. [18] In his direct examination when asked about past offences he admitted that he has made mistakes and that he doesn’t always“remember everything”. [19] When asked in re-examination if he reads each condition of his fishing license every year because, as he acknowledged, theycontinually change, his response was that “I try to”.

When asked if every year he read the integrated fish management plan for salmonhis response was “I try to”. [20] As Mr. Thompson is aware, this is a very highly regulated and complex industry. I have no doubt that it has changedsignificantly over the years that he has been fishing. I also acknowledge the challenge in understanding and appreciating these laws.

Indeed, those who work in this field would readily agree that the legislation is highly complicated and not easy for many people toreadily understand. [21] The Pacific Region integrated fisheries management plan relating to Groundfish and which sets out the closed rockfish areas, isapproximately two hundred pages.

The document setting out the conditions of the halibut license in force at the time of these offenceswas sixty two pages in length. [22] Notwithstanding this fact, a skipper or master of a large commercial fishing vessel must possess knowledge and a clearunderstanding of the conditions of licence, the management plans and other regulations applicable to the industry.

If the owner or vesselmaster finds acquiring that knowledge challenging, it is incumbent on that individual to make certain that someone else is able to advisehim or her of those matters so as to ensure that they are in compliance with license conditions and the law generally. [23] Therefore, it is astonishing that as an experienced commercial fisherman of over 40 years, Mr. Thompson, as he testified, was“not familiar with the terms 3B and 3D and that stuff”.

Nor was he familiar with Area 5A or the term Rockfish Conservation Area. [24] I must decide upon a fit and appropriate sentence taking into account the nature and circumstances of the offences, Mr.Thompson’s circumstances and the objectives of sentencing as set out in

section 718 of the Criminal Code including any aggravating ormitigating circumstances. THE LAW [25] In R. v. Martynuik, Campbell River Registry, December 1, 2015, I set out a number of general principles applicable tosentencing for offences under the fisheries legislation and which are applicable to this case: [12] Counsel provided me with case authorities which collectively set out a number of general principles. I adopt the passage byJudge Brecknell in R. v.

Royal Oak Mines Inc., 2001 BCPC 7 , 2001 BCPC 0007, para 21: “…the Fisheries Act and its enforcement is premised on the need to protect our natural environment for the fish and wildlife inhabit it, aswell as for the use and enjoyment of all of the citizens of our community, our province, and our country…" [14] In the context of an offence under the Fisheries legislation, particular emphasis is placed upon deterrence, both specific andgeneral, and denunciation. [15] A fine must be sufficient to accomplish those objectives and not simply represent a licence fee or the cost of doing business.

Iadopt the passage set out by Judge Porter in R. v. Pike, 2013 N.J. No. 344 at paragraph14: I remind myself and adopt the remark made by Edward, J., in R. v. MacKinnon (1996) 154 N.S.R. 92d) 217 (S.C.), at paragraph 19, asfollows: “A fine must be substantial enough that it will send a message to the public that illegal activities will not be tolerated by the courts. Theamount of the fine should take into consideration both the seriousness of the offence and the general principles of sentencing….A fineshould not be so low that it will be seen as a license fee or as a mere cost of doing business.

A low monetary penalty may also beconsidered an affront to those, the majority, who do comply with the Act.” [26] A fit and proper sentence must be proportionate to the seriousness or gravity of the offence and the degree of responsibility or,in other words, moral culpability, of the offender (s.718.1); it must be a just sanction capable of denouncing unlawful conduct and harmas a consequence to a victim or a community; achieving specific and general deterrence, rehabilitation of an offender and promotion ofresponsibility by an offender and the harm his or her actions have caused to a victim or the community (s. 718). [27] I am also mindful that I must not impose a fine unless I am satisfied that Mr.

Thompson is able to pay the fine. (s. 734(2)). [28] I turn now to a consideration of the factors that are to be considered in determining the appropriate sentence.

THE GRAVITY OF THE OFFENCES [ 29 ] It is well-known that fisheries legislation and regulations are designed to protect a vulnerable and valuable resource important to the community and country. As anyone who has some familiarity with the collapse of the great cod fishery in Newfoundland knows, strict regulation is required to ensure the ongoing health and survival of each species of fish. Because each species has its own unique characteristics, regulations must be tailored accordingly.

This is one of the reasons the regulations are so complex. [ 30 ] Rockfish Conservation Areas were established in certain areas to protect the approximate thirty species of rockfish.

In his statement dated October 23, 2012 Robert Tadey, the Groundfish Hook and Line Coordinator with Fisheries and Oceans Canada advised that Rockfish Conservation Areas along the coast of British Columbia, some one hundred and sixty four in number, were implemented as a result of the decreasing numbers of those species. [ 31 ] Rockfish have an average life expectancy of seventy five years although some may live to well over one hundred years of age. Their low reproductive rates, slow growth and sedentary habits make them very susceptible to over fishing due to repetitive or excessive harvesting.

Furthermore, rockfish are also very susceptible to hooking mortality because they are unable to adjust to sudden changes in barometric pressure. [ 32 ] Fisheries and Oceans Canada must ensure compliance with legislation by monitoring fishing vessels. It is trite to say that the ocean is indeed vast and there are a limited number of fisheries officers and vessels able to patrol such a large area. As a result, legislation requires 100% mandatory dockside monitoring for all commercial groundfish hook and line fisheries. As stated in Mr.

Tadey’s statement dated November 4, 2016, the requirement that the vessel master “hail – in” at least twenty-four hours in advance of the offload, provides a better opportunity for fisheries officers to attend and monitor the offload. [ 33 ] Mr. Thompson’s vessel caught the majority - if not almost all - of fish while fishing over a four-day period between October 28 and October 31, 2012 in the Rockfish Conservation Area 5A. It is clear that on October 25, when they were fishing in area 3D, the halibut catch could only be described as abysmal.

The amount of halibut caught increased substantially in area 5A. [ 34 ] Fishing in a closed area, in particular a Rockfish Conservation Area, is a serious matter with long term consequences to rockfish species. Once rockfish are caught they have been removed from the population and cannot reproduce thereby reducing the population.

As already noted, the general rockfish population has steadily been declining and I would expect this may require that larger areas of Rockfish Conservation Areas be established and for longer periods of time. [ 35 ] Failing to hail in interferes with the ability of fisheries officers to ensure compliance with the legislation and this directly affects proper management of the resource. The failing to hail in within the prescribed time is also significant but I find, on all the evidence and circumstances, less so than fishing in the Rockfish Conservation Area. MORAL CULPABILITY [ 36 ] Mr.

Thompson says he did not intentionally or surreptitiously fish in the Rockfish Conservation Area or fail to hail in within the prescribed time period. It was a mistake and based upon lack of knowledge. As I have said previously, an experienced commercial fisherman and master of a vessel must know and follow the law as it relates to the profession.

It is not acceptable for a vessel master to say simply I just didn’t know and Fisheries and Oceans Canada didn’t tell me. [ 37 ] I accept that there is a range on the scale of culpability ranging from situations in which the individual tried to exercise due diligence and those offences involving intentional and flagrant actions knowing that the law was being contravened. As was stated by Mr. Justice Ritter in HMTQ v. Terroco , 2005 ABCA 141 , para.35: The degree of carelessness is a factor in sentencing from environmental offences.

Due diligence in sentencing for environmental offences is to be assessed on a sliding scale: the more diligent the offender, the lower the range of fit sentences; alternatively, the less diligent the offender, the higher the range of fit sentence. [ 38 ] Mr. Thompson, at minimum, was extremely careless if not reckless in failing to take steps to inform himself of the applicable regulations, such as Rockfish Conservation Areas. It was incumbent on him, as vessel master to be aware of any closed areas that would affect where he was legally allowed to fish. Based on the evidence, it appeared that Mr.

Thompson was undergoing a very difficult period of time - his other boat was in need of repair, he and the crew lost days that otherwise would have been out on the ocean fishing and he was very pressed for time and, likely, resources to help him. Nonetheless, he is the master of the vessel and the responsibility, as he stated in his evidence, falls on his shoulders. PRIOR RECORD [ 39 ] Mr. Thompson has a prior record for fisheries offences. None of the offences relate to fishing in closed areas or having an illegal catch.

They could be primarily described as more technical offences such as failing to have the proper amended license, failing to hail in properly, failing to submit a log book, etc. Failing to have an operating revival tank is, arguably, the more serious of the previous offences because it directly impacts the resource and his fine in that instance was $500. This was his last offence and was just over seven years ago so it is somewhat dated. [ 40 ] However, it is clear that even on the basis of his prior fisheries offences Mr.

Thompson is aware, or certainly ought to have been aware, of the highly regulated and complicated nature of fisheries legislation and regulations. NEED FOR DETERRENCE [ 41 ] It is clear that sentencing in environmental offences, including fisheries offences, must emphasize the need for deterring the individual who has been charged and, also of particular importance, deterring others who may be tempted to take on the risk of detection in exchange for a potentially large profit or monetary benefit.

[42] The penalty must be significant enough to achieve this objective. A sentence that does not do so would not only be unfit butwould be unfair to those many fishers who do follow the law. [43] In addition to deterrence, I am mindful that I must also balance the need for deterrence with the other principles and objectivesof sentencing. AGGRAVATING AND MITIGATING FACTORS [44] Mr. Thompson’s prior record, while not the worst this court has seen, is an aggravating factor. [45] The mitigating factors are his guilty plea and therefore his acceptance of his responsibility for the offences.

It is also mitigatingthat he did not attempt to hide where he was fishing and that his logbooks clearly indicated that he was fishing in area 5A. Hecooperated with the fisheries officers when they landed. [46] In reaching a decision as to a fit and proper sentence, I consider all the circumstances of the offences as well as Mr. Thompson’scircumstances.

A sentence must not be based on sympathy but on a reasoned and principled application of the law as it applies to theunique circumstances of each case. [47] The most contentious issue in this case, in respect of the sentencing, is whether or not the court should impose what is oftenreferred to as an “additional fine” under

section 79 of the Fisheries Act. Crown counsel strenuously argues that the amount I shouldimpose in this case is the amount equal to the monetary benefit - in this case the gross sales from all the fish illegally caught in theRockfish Conservation Area. This amount is $34,573.05. [48]

Section 79 of the Fisheries Act provides that if satisfied that as a result of committing the offence the person acquired monetarybenefits a court may order an additional fine in an amount equal to the court’s finding of the amount of those monetary benefits. [49] There appears to be conflicting law regarding the

interpretation of this

section and whether or not the monetary benefits shouldbe assessed on the basis of gross sales or net sales after taking into account any expenses incurred to obtain those revenues. It appearsthat those decisions that advocate for an application of the gross sales to the determination rely on a statement made by Freeman, J. in R.v. Ross (1990), (NS SC), 96 N.S.R. (2d) 444 (Co.

Ct.) at para. 18: … Forfeiture of an illegal catch is not a strong deterrent and may be compared with depriving a thief of his loot…. [50] However, I accept that there is no hard and fast rule and ultimately, it is for the court to determine the amount of the monetarybenefit and how the court does so is entirely in the discretion of the sentencing judge. As was said by J.W.S.

Saunders in R. v.Henneberry, 2009 NSCA 112 at para. 65: I prefer to leave the determination as to whether-on the facts of any given case-monetary benefits will equate to the gross value of theproduct, or whether that figure ought to be reduced after discounting expenses to the enterprise or individual, to the discretion of thejudge hearing the case...

Section 79 does not direct the performance of a profit and loss analysis of the fishing enterprise, as for an income tax calculation. Rather, the sentencing judge is to assess, in the particular circumstances of the case and on the evidence presented, whether theconvicted person in fact obtained a monetary benefit from his commission of the criminal act. [51] In Henneberry, the sentencing judge arrived at the sentence based on the facts of that case and the evidence presented.

She usedgross sales as the measure of the defendant’s monetary benefit and was of the view that this penalty was a necessary step in achievinggeneral and specific deterrence.

In other words, if offenders know that they will be deprived of the entire benefit of their illegal catchand would therefore have to pay the associated costs from other sources of income, her view was that this would serve as a deterrent. [52] Whether or not an offender should be deprived of the entire benefit of an illegal catch or whether some other assessment of themonetary benefit accruing to the offender should be considered must be left to the sentencing judge and the circumstances of theparticular case.

In some situations the conduct may require a more significant penalty to achieve deterrence and in those circumstances itmay be appropriate to use gross sales, or in other words, the entire benefit of the legal catch, as the measurement of monetary benefit. [53] In Mr. Thompson’s case, the need for deterrence is a significant factor that looms large. It is important that individuals who arecareless and say “I’m sorry - I just didn’t know” are not rewarded for that carelessness.

To do so would encourage others to refrain fromtaking the necessary steps to inform themselves of the laws and regulations applicable to their particular area of the fishery. [54] In fashioning the appropriate sentence I am satisfied that in Mr. Thompson’s case, I should consider the monetary benefit thathe has received from the illegal catch. Had I found that his conduct was more flagrant or an intentional flouting of the law, I may wellhave imposed a fine under

section 79 equal to the full amount of his illegal catch. [55] Furthermore, I consider that he has had some lucrative years but he has had some years in which his income was extremelymodest. I also consider that while a thief should be deprived of his loot, a thief does not incur cost of goods sold. Mr. Thompsonincurred costs to obtain the fish and I find that his monetary benefit should be assessed on an amount that recognizes this but that is stillsufficient to have a deterrent effect. [56] Mr.

Thompson’s sentence is as follows: • Count one - fishing in a Rockfish Conservation Area - $5000 fine. • Count three - failing to hail in in not less than 24 hours prior to landing - $1000 fine. [57] There will also be an additional penalty pursuant to

section 79 in the amount of $19,000. In addition, pursuant to s. 79.2 of the

Fisheries Act , I also direct that $4000 of this amount be paid for the benefit of two PhD students in the amount of $2000 each: Shannon Obradovich, Institute for Oceans and Fisheries, UBC for her project: Using Bottom Longlines In The Assessment Of Long Lived, Demersal Reef Species; Mauricio Carrasquilla, Department of Biology, University of Victoria, for his project: Yelloweye And Quillback Rockfish Abundance And Relationship With Benthic Habitat Parameters In The Strait Of Georgia, British Columbia. [ 58 ] The total amount that Mr. Thompson is required to pay is $25,000.

Subject to further submissions, he will be given ten years to pay this amount. BY THE COURT ____________________ The Honourable Judge Flewelling