R. v. Ma, 2023 BCPC 163

Citation: R. v. Ma 2023 BCPC 163 Date: 20230202 File No: 16797-1 Registry: Port Hardy IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. SOU TAC MA ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. STEWART Counsel for the Crown: C.J. Gibson (as Agent for T. McFadgen) Counsel for the Defendant: M. Bloom Place of Hearing: Campbell River , B.C. Date of Hearing: December 21, 2022 Date of Sentence: February 2, 2023

[ 1 ] THE COURT: This is my decision on sentence in the matter of R. v. Sou Tac Ma , Information Number 16797. Guilty pleas were recorded on Counts 3 and Counts 4 of that Information. I will begin with the facts. An agreed statement of facts was filed. I will not repeat all of those facts here. I propose to order a transcript of these oral reasons and direct here that a copy of the agreed statement of facts be attached as

Schedule “A” to those reasons. [ 2 ] Central to this decision are the following facts: Mr. Ma is a crab fisherman. This fishery is 100 percent monitored electronically by a third party monitoring agent. The location and time of every trap set, how long it soaks, when it is pulled, and any catch retained is electronically monitored and recorded. [ 3 ] On March 27, 2019, Mr. Ma set crab traps in a closed area, Area 9-2. [ 4 ] On March 31, 2019, Mr. Ma’s fishing licence expired.

From April 1 to April 15, 2019, he fished without a licence. [ 5 ] On April 2, 2019, he hauled the traps set in the closed area on March 29, 2019. [ 6 ] Willem Buitendyk, who oversees the electronic monitoring, told Mr. Ma to return the crabs caught in the closed area to that closed area. Mr. Buitendyk's subsequent review of electronic monitoring data confirmed that Mr.

Ma did not return the crabs caught in the closed area to the water and kept them in his vessel’s hold. [ 7 ] The monitoring data also confirms that he continued to soak some 90 commercial crab traps between April 4, 2019, and April 15, 2019. [ 8 ] On April 4, 2019, Mr. Ma offloaded and sold crab in Port McNeill. Mr. Ma did not submit any fish slips for these crab. [ 9 ] On May 16, 2019, Mr. Ma attended to the Port Hardy DFO office and admitted to the above facts. He stated with respect to the traps placed in the closed area that he did not know that Area 9-2 was closed. [ 10 ] Mr.

Ma pled guilty to Count 3, fishing in Area 9-2 during a closed time, and Count 4, fishing without a licence. [ 11 ] Mr. Ma has a prior regulatory history which will be addressed below. [ 12 ] Mr. Ma’s financial circumstances were a focus of submissions which will also be addressed below. [ 13 ] Next, I will speak to the positions of the parties. Crown seeks total fines in the amount of $44,500 and equal allocation between the two counts. The defence submits that the total fines should be $10,000, $5,000 per count. [ 14 ] I will speak next to the principles of sentencing in fisheries offences.

The mandated considerations in a decision on sentence for fisheries offences is not, for the most part, controversial. As will be discussed below, the focus of submissions in this case was the relevance of an offender’s means to pay a fine. [ 15 ] The objectives of sentencing pursuant to s. 718 of the Criminal Code apply. However, in regulatory matters, there is necessary focus on denunciation and deterrence. It does remain that: first, a sentence must be proportionate to the gravity of the offence and degree of responsibility of the offence, s. 718.1 of the Code .

Next, a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances, s. 718.2(a). Sentences for similar offences, circumstances, and offenders should be similar, referred to as the "parity principle," s. 718.2(b). While no deprivation of liberty is sought in this case, the principle of restraint remains in every sentencing decision. [ 16 ] Sentencing in regulatory proceedings frames the considerations in determining penalties as follows: i. Culpability; ii. Prior Record and Past Involvement with Authorities; iii. Acceptance of Responsibility and Remorse; iv.

Damage and Harm Done; and v. Deterrence. [ 17 ] Those five considerations are referenced at paragraphs 35 to 63 in R. v. Terroco Industries Limited , 2005 ABCA 141 , that decision is cited in a fisheries context in the case of R. v. Schafhauser , 2017 BCSC 2287 , at paragraph 12 . [ 18 ] Referring to culpability, first, the culpability for the failure to renew his licence, Count 4, is relatively low. This appears to be an administrative error. [ 19 ] However, I note that this aspect of his business, like every other aspect of his business, is something that needs to be attended to.

If one fails to attend to the engine on a fishing vessel and, after arriving at the fishing grounds, one needs to return home for repairs, that failure to attend to the necessary matter of the engine results in a loss of catch in that period. In many respects, the same principle applies with respect to the failure to attend to the necessary regulatory preconditions to participation in the industry. [ 20 ] Next, the culpability for fishing in a closed area, Count 3, I find, is relatively high. In this analysis, it is accepted that, while an

experienced fisherman, Mr. Ma was not experienced fishing in this area and may not have known that he was in a closed area. But the focus of the assessment of culpability is in the moment when he is told this by the fishing monitor. He is told that these fish -- he has placed his traps in a closed area, and he is told to release and return the fish caught. Instead, he chooses to retain the fish, offload the fish in Port McNeill, and essentially sell the illegally caught crab.

Any mistake made was capable of immediate remedy which would eliminate any environmental harm and the societal and commercial harm relating to the fair allocation of the resource between competing interests, pre-existing Indigenous rights, recreational fishing, and within the competitive commercial crab fleet. [ 21 ] Next, with respect to Mr. Ma's prior record and past involvement with authorities, Mr. Ma does have a regulatory history. This is well summarized at paragraphs 21 and 22 of the Crown written submissions as follows.

With respect to his conviction list, he has a prior entry which was commercially fishing for crab in American waters along the Maritime border. I agree with the submissions that that charge is akin or comparable to fishing in a closed area. While the conviction list indicates a $100 fine, the reasons for decision indicate the global penalty is a $5,100 fine. $5,000 of that amount was made pursuant to s. 79.2(

f) of the Fisheries Act , sometimes referred to as the "creative sentencing option." [ 22 ] Next, Mr. Ma's DFO departmental violation system history shows three pages of records.

That includes a warning on August 1, 2006, for commercial crabbing in a closed area; a warning December 10, 2007, of crabbing during a closed time; a warning in November 2008 of failing to comply with commercial conditions of licence in the commercial crab fishery; a warning July 1, 2009, for unauthorized entry in fishing in American waters in the commercial crab fishery; and a warning January 26, 2011, for having commercial crab gear in the water during a closed time. [ 23 ] Next, with respect to his acceptance of responsibility and remorse, Mr.

Ma deserves credit for his immediate acceptance of responsibility to the DFO officers when asked about the events in late March/early May of 2019 when he attended their offices in May of 2019. Absent here is the aggravating circumstances of dishonesty or deception which is seen present in the Schafhauser decision. Mr. Ma also deserves credit for his guilty plea and the resulting certainty in the conviction and the avoidance of a trial. [ 24 ] I must view Mr. Ma’s acceptance of responsibility and pleas in context. As stated above, this fishery is 100 percent monitored.

Indeed, the individual from the monitoring agency contacted Mr. Ma on the fishing grounds, advised him that he was in the closed area, and advised him to return the catch. Mr. Ma’s breach was patent and his decision to retain the catch was, in a certain regard, blatant. [ 25 ] I do accept that Mr. Ma now regrets his behaviour. I accept that he is a respected family member, fisherman, and mariner.

He regrets now his decision in April 2019 and how this has now impacted that reputation and how this will financially impact his family. [ 26 ] In terms of damage and harm, the dominant measurement of harm here is with respect to the need for conservation and fair allocation of a limited resource. Decisions by Fisheries to close an area may be made for environmental or conservation reasons.

They may also be made for social/economic reasons such as leaving an area closed to all activities other than FSC, or food, social, ceremonial, fishing by local Indigenous communities. [ 27 ] Damage may also be measured economically. Here, the estimated value of the crab caught and retained in the closed area, relevant to Count 3, is $1,332.89. The estimated value of the crab caught and retained in an open area, but during the time when Mr. Ma had not renewed his licence, is 2,740 pounds of crab at an approximate value of $23,738.00.

Crab traps that were set during the unlicensed period, but harvested after the reacquisition of his licence on April 15, so harvested on April 18, 2019, totalled a further $9,010.00. The total value of “impugned” crab, caught either in a closed area or without a licence, totals approximately $34,000.00. [ 28 ] In terms of deterrence, that assessment is discussed below in the final assessment of appropriate penalty. [ 29 ] Next, I assess the sentencing caselaw. Numerous authorities were provided and summarized by both Crown and defence.

In terms of determining parity or a range of sentence, I was most assisted by the following cases: R. v. Zhang , 2022 BCPC 275 ; R. v. McKinnell Fishing Limited , 2017 BCPC 236 ; R. v. Le , 2019 BCPC 116 ; R. v. Noringseth , 2016 BCPC 183 ; R. v. Nguyen and To , a 2021 unreported decision from Powell River; and R. v. Steer , a 2013 unreported decision from Masset. [ 30 ] With respect to R. v. Zhang , the harm there was different because it is permanent damage that is without remedy, that because the setting there of prawn traps was on a glass sponge reef. The circumstances are different also insofar as Mr.

Zhang was a recreational fisher, not a commercial fisherman like Mr. Ma. Total fines of $18,000 were imposed and I note this was in addition to the forfeiture of the seized prawning gear and the prawns caught in that gear. [ 31 ] In R. v. McKinnell Fishing Limited , that case occurs over a longer period of time.

Total fines imposed at $29,000. [ 32 ] In the case of Le , total fines of $20,000 as well as a four-month fishing prohibition and a forfeiture order valued at $33,000 and the crab gear was seized and the crab released were imposed. [ 33 ] Noringseth involves total fines of $20,000. [ 34 ] In Nguyen and To , total fines of $40,000 were imposed as well as a fishing prohibition for eight months, with eight years to pay the fines. [ 35 ] In R. v. Steer , the fine imposed was $20,000 with a requirement to pay $4,000 per year for five years. [ 36 ] Next, I will address submissions on the ability to pay.

Defence submits that, in considering a monetary penalty, the court must consider the ability of the offender to pay, citing paragraph 12 of R. v. Zhang where it stated as follows: When considering a monetary penalty, the Court must also consider the ability of the offender to pay. [ 37 ] Crown submits the opposite, citing Judge Punnett in R. v. Schafhauser at paragraph 12 . I will not purport to include all of it, but I will begin:

In this instance, the sentencing judge appropriately highlighted the need for an appropriate sentence to deter similar conduct by the commercial fishing community generally and specifically by Mr. Schafhauser. 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 … [Citing Terroco and then citing Brown .] [ 38 ] Beginning at paragraph 13: In this case, the trial judge appropriately considered and weighed each of the above factors in crafting a fit sentence for Mr. Schafhauser. The sentencing judge properly considered his personal circumstances in assessing the appropriate fine amount. In discussion with Mr. Schafhauser, the sentencing judge provided him time to pay.

I note, as well, that where there is an issue, and there apparently is not in this case, with the ability to pay, this should be remedied by additional time to pay and not by diluting the deterrent nature of the sentence by lowering the sentence amount … [ 39 ] There, Justice Punnett cites Brown at paragraphs 20 to 22. That BC Court of Appeal decision in Brown at paragraph 20 sets out: Whether an error of law is interpreted as an error in principle or an error in quantum, I am not persuaded that, in imposing the $30,000 monetary penalty, which included the amount of $29,000 payable under s. 79.2(

f) of the Fisheries Act , the

summary conviction appeal judge can be said to have erred in law. Given the circumstances of this case, including the appellants’ situation, the nature of the offences and the fact that the amount of the monetary penalty was less than the cost of restoration that the sentencing judge declined to order, the sentences imposed by the sentencing judge cannot be said to be unfit. The $30,000 amount of the penalty is not outside the range of penalties established by the cases cited by the Crown. Here, I will add emphasis: The

summary conviction appeal judge was aware of the financial circumstances of the appellants, and made reference to the $60,000 annual amount of their family income at a. 51 of his reasons. The appellants were able to raise the same approximate amount of money to make the alterations to their property, and the evidence before the court does not establish that a penalty in this amount will cause undue hardship to the appellants. [ 40 ] Carrying on at 22: The

summary conviction appeal judge gave the appellants one year to pay the monetary penalty. He subsequently stayed [this] order until the decision of this Court. In these circumstances, it is my view that the appellants should be given an additional year to pay the monetary penalty.

I would order that the appellants have one year from today’s date to pay the $30,000 monetary penalty. [ 41 ] Then the Court of Appeal adds: I note that it is open to the appellants to make application under s. 79.5 of the Fisheries Act to vary the order as a result of a change in circumstances. [ 42 ] With respect to this issue generally, as well as the specific circumstances of Mr. Ma, I benefitted significantly from extensive submissions and records concerning Mr. Ma’s financial circumstances and ability to pay.

In terms of his business income, this is well captured by the table at paragraph 33 of the defence submissions, which I will not attempt to present orally, but again, would add as a table to be inserted in the transcript of these reasons.

Tax Year 2021 2020 2019 2018 Tax Information Statement of Fishing Activities: Gross Income Line 8299 $416,566.18 $268,622.44 $367,538.49 $286,996.76 Statement of Fishing Activities: Expenses Line 9368 $355,966.77 $243,354.09 $329,940.78 $267,290.68 Statement of Fishing Activities: Net Income Line 9369 $60,599.41 $25,268.35 $37,597.71 $19,706.08 Statement of Fishing Activities: Net Income (50%) Line 9946 $30,299.71 $12,634.18 $18,798.86 $9,853.04 Total Income / Gross Income Line 150 $39,187 $28,887 $19,110 $12,689

Net Income Line 236 / Taxable Income Line 260 $37,593 $28,381 $18,307 $12,375 [ 43 ] I do not find the assessed value of his residential home to be relevant. There are too many unrelated factors such as time of purchase, market appreciation, financing, considerations whether this is an intergenerational homes, all of which makes this overly speculative as an indicator of means. [ 44 ] Of greater relevance is the fact that, during the relevant period, the fishing activities of Mr.

Ma have been sufficiently successful to permit repairs or upgrades to the boat and other equipment or vehicles used in the fishing operation and, most significantly, the acquisition of a gillnetting licence and a crabbing licence. The crab licence is particularly significant insofar as Mr. Ma was leasing a crab licence from a First Nation at the time of this offence, but has since acquired, in partnership with his brother, a crab licence of his own. [ 45 ] In an extensive colloquy with counsel during submissions, the limitations of business valuation within a criminal sentencing hearing were revealed.

I restate my concerns whenever a secondary market for the resale of government-issued licences results when limits are placed on the number of licence holders in any regulated scheme. Here, there are only 220 crab licences issued. It is, presumably, due to that restriction on the number of licences available that a resale market exists. Of significance here is that beyond the table of gross income, expenses, and profit detailed above, there is a value in the licence itself evidenced by Mr. Ma’s decision to acquire one.

This alone is compelling evidence of the continuing profitability of commercial crab fishing. [ 46 ] Returning to the caselaw concerning the relevance of an ability to pay, I comment as follows. Zhang and Schafhauser and Brown dealt with different regulatory schemes. Mr. Zhang was a sports fisherman catching prawn recreationally. Mr. Schafhauser was a commercial fisherman. The distinction is significant. [ 47 ] All commercial fisheries are competitive.

The rules and regulations protect that limited public resource in part by creating a set of rules that create a level playing field in the commercial endeavour, here, of crab fishing. Mr. Ma is, in effect, competing with the other 219 licence holders for the available crab to be caught within the prescribed rules.

If the rules are not enforced, there is a profit motive in competing unfairly. [ 48 ] In the context of means to pay, at the very least, fines should be generally consistent within each fleet of the fishery, be that crabbing, prawning, halibut, groundfish, salmon, even within those fisheries, differentiating, perhaps, between, in the circumstances of salmon, gillnetting and longlining. There may be circumstances where a particular fishery becomes less profitable.

An example may be salmon gillnetting, but this, too, is based on general impressions from the North Coast and not a concrete record before the court either generally or in this case. But in a less profitable industry, deterrence, specific and general, need not involve fines as high as those required in a more profitable sector. If, as a general rule, regulatory fines must be more than a mere cost of doing business, some knowledge of what those costs involve is relevant. [ 49 ] Here, I find that Mr.

Ma’s relatively recent acquisition of additional licences, in particular here, a crab licence, is at least consistent with a degree of optimism that the crab fishery will continue to be profitable. [ 50 ] Of some related relevance, is the absence of any submissions that, in lieu of fines, the court should consider a period of prohibition from the industry.

There is an available inference that, as long as payment of a fine is a more lenient penalty than a period of prohibition, continued participation, with the added cost of fine payments, suggests both an ability to pay and at least a marginally profitable fishery. [ 51 ] What remains is my decision. Casting my attention back to the referenced sentencing decisions, I begin with a consideration of concepts of forfeiture.

Numerous of the referenced cases above involved forfeiture of gear and either return of catch or forfeiture or disgorgement of profits. [ 52 ] Here, the estimated value of the crab caught and retained in the closed area, Count 3, is $1,332.89. The estimated value of the crab caught and retained in an open area, but during the time when Mr. Ma had not renewed his licence, is 2,740 pounds of crab at an approximate value of $23,738. Crab traps set during the unlicensed period, but harvested on April 18, 2019, totalled a further $9,010.

As stated earlier, the total value of “impugned” crab, caught either in a closed area or without a licence, totals $34,080. [ 53 ] Put simply, those are fish that should not have been caught. Any sense of fairness to other crab fisherman requires that Mr. Ma should not retain that benefit. [ 54 ] I return to the decision of Judge Seidemann, now retired, who is likely one of our country's jurists with the most extensive knowledge of the commercial fishery, and his comments at page 1, paragraph 2, of the decision in Steer [as read in]: Simply the fact that other fishers were not there when Mr.

Steer was setting his traps should have alerted him that something was wrong, and any fine that is imposed must be such that fishers are aware that they do not get to pay some kind of license fee, so to speak, for the opportunity to get in there a day early and scoop the cream of the crop. [3] I am satisfied that the 20,000 dollar fine which is proposed is a significant enough fine that it will send that message to others, and others in the industry will see that this behaviour is not something that they can participate in lightly. [ 55 ] While no disgorgement or forfeiture order was sought here, the amount of any fine must begin with denying a fisherman the benefit of their violation.

For Count 3 in particular, Mr. Ma had the benefit of a warning and sage advice from the fishing monitor, "Return the catch." His failure to do so places that conduct as intentional rather than merely negligent. Had he returned the catch and was merely answering in a regulatory proceeding for negligence, his fine would be significantly reduced. [ 56 ] However, in relation to Court 3, if his fine is the same as that in Steer , as well as a notional valuation of his illegally retained

catch, the fine sought by the Crown in the range of $22,500 is fair. I will, however, set the fine at $21,500 for Count 3. [ 57 ] In relation to Count 4, fishing without a licence, any such fine must also take into account the value of the crab retained. While this failure may have been inadvertent, distinct from the intentional retention of the crab in Count 3, as indicated before, maintaining a current licence is a foundational precondition to participation in a regulated industry. Seizure of fish caught without a licence is an accepted aspect of enforcement, before any determination of fines.

In this case, that crab was valued at more than $30,000. I will not impose a fine greater than that sought by Crown. However, in the result, on Count 4, I set the fine at $22,500. [ 58 ] When this is assessed in light of the value of the retained crab, these fines are likely insufficient to effect either specific or general deterrence.

Returning to the comparison between taking the time to attend to your licensing or taking the time to attend to the charts to ensure that traps are placed in an open area versus the time that a fisherman invests in the maintenance of his engines or the maintenance of his gear, both mistakes may result in missing out on an opportunity to catch. In this case, an available message from this sentence where there has been a failure or a breach may be to keep the crab and use the proceeds to pay the fines. I do not intend to send that message and, further and more importantly, I do not feel that Mr. Ma thinks that way.

I do not think that ever crossed his mind. I accept his genuine regret and remorse. I merely make the point so that he understands my reasoning in imposing the fines sought. [ 59 ] With respect to time to pay, I will give Mr. Ma five years to pay these fines that total $44,000. I will not prescribe a repayment

schedule as was the case in Steer requiring annual installments.

If the optimism that led to the acquisition of a crab licence proves correct, it should be possible to pay what amounts to $8,800 per year providing that length of time also accounts for the possibility of a bad year of fishing or a period of reduced rates in the market for the catch or some other unexpected event that interferes with his business. [ 60 ] I will pause to note that the comments of the Court of Appeal in Brown are made with respect to the ability of an offender or fisherman to apply for an extension or other reconsideration pursuant to. 79.5 of the Fisheries Act .

On my reading of s. 79.5, that provision applies only to orders made pursuant to s. 79.2 or 79.3 of the Act and not specifically fines.

It is unfortunate if the appellate authority that is routinely referenced that discontinued the use of the provisions of 79.2(f), the "creative sentencing provisions," and how that is no longer utilized, if the result is that it prevents or precludes a fisherman from making such an application should they experience a change in circumstances. [ 61 ] One benefit of providing for such an application to be made is that this avoids some of the focus on the valuation of a business or considerations of the profitability of a fleet within the fishery.

Permitting such an application for subsequent relief, were there a change in circumstances, this shifts that onus to the offender/payor should the need arise and provides relief to the fisherman should subsequent market conditions or other circumstances interfere with an ability to repay. That issue was not before me and I would leave that to be argued at a different time. [ 62 ] To conclude, Madam Clerk, with respect to Count 3, record a fine in the amount of $21,500, payable on or before February 2, 2028.

On Count 3 [sic, 4], record a fine in the amount of $22,500, payable on or before February 2, 2028. [ 63 ] Mr. Bloom, can you confirm a mailing address? It can be care of your office. [ 64 ] CNSL M. BLOOM: Yes, Your Honour, if I could provide my email, it is -- [ 65 ] THE COURT: Yes. [ 66 ] CNSL M. BLOOM: [omitted] If the sentencing orders are provided to my office, I will ensure that Mr. Ma gets a copy of such. [ 67 ] THE COURT: All right. Mr. Interpreter, I will just confirm on the record that Mr.

Ma understands that, on Count 3, he has been ordered to pay $21,500 on or before February 2, 2028? [ 68 ] THE INTERPRETER: Yes, Mr. Ma understands. [ 69 ] THE COURT: And on Count 3 [sic, 4] that the fine is $22,500 payable at the same time? [ 70 ] THE INTERPRETER: I think -- [ 71 ] CNSL C. GIBSON: Your Honour, I noticed that it was Count 4. So you were correct -- [ 72 ] THE COURT: I am sorry. Yes, Count 3 is $21,500, Count 4 is 22,500. [ 73 ] THE INTERPRETER: It is understood, Your Honour. [ 74 ] THE COURT: With that, Madam Clerk, I will confirm that it is not necessary that Mr.

Ma attend at a registry and sign a notice of payment of fine. I am satisfied that he understands that he is required to make that payment and that it is not necessary that he attend. We can merely send out the notice of payment of fine electronically to his counsel as his agent. [ 75 ] THE CLERK: Yes, Your Honour. [ 76 ] THE COURT: With that, this concludes these proceedings. I should acknowledge the exceptionally high quality of the submissions that were made by both Crown and defence and you have the appreciation of the court. Thank you. [ 77 ] CNSL M. BLOOM: Your Honour, just one thing.

I think my friend -- in regard to the other counts -- [ 78 ] THE COURT: Oh. [ 79 ] CNSL M. BLOOM: -- if my friend --

[ 80 ] THE COURT: Thank you. [ 81 ] CNSL M. BLOOM: -- could direct a stay of proceedings on Count 1, 2, 5, 6, and 7 of Port Hardy Court File 16797-1. I would just ask the Crown to confirm that. [ 82 ] CNSL J. GIBSON: Yes, thank you, Your Honour. [ 83 ] THE COURT: Yes, thank you. Thank you, Mr. Interpreter. Thank you, Madam Clerk. (REASONS FOR SENTENCE CONCLUDED)