Her Majesty the Queen - v. -, 2015 SKPC 76

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 076 Date: June 2, 2015 Information: 24004936 Location: Black Lake _____________________________________________________________________________ Between: Her Majesty the Queen - and - Donald Echodh Appearing: Mr. Harold Johnson For the Crown Mr. Donald Echodh Self-represented JUDGMENT S.I. ROBINSON , J [ 1 ] Donald Echodh of Black Lake, Saskatchewan was charged that on December 10, 2013, at Wapata Lake, Saskatchewan, he did: 1. Unlawfully fail to complete a commercial fishing report, contrary to

section 84 of The Fisheries Regulations ; and 2. Unlawfully waste fish, contrary to

section 92(

c) of The Fisheries Regulations .

[ 2 ] This matter came before me for trial at Black Lake on April 18, 2015. At trial, the Crown did not lead evidence nor seek a conviction with respect to the charge of failing to complete a commercial fishing report, and I am finding the accused not guilty on that charge. The Crown does, however, seek a conviction on the charge of wasting fish. Crown Evidence [ 3 ] Conservation Officer Brendon Smith and Conservation Officer Steven Dow testified for the Crown at trial.

Officer Smith provided the main outline of the Crown’s case. [ 4 ] Officer Smith testified that the accused has a commercial fishing operation on Wapata Lake, a large lake situated about 50 kilometres south of Black Lake. During the winter of 2013-2014, Wapata Lake was open to commercial fishing from December 1 to April 15. Seven fishers, including the accused, were licensed to fish the lake. Wapata Lake is favoured by commercial fishers because it has a high concentration of walleye, which attract a higher price than other commercial fish.

Officer Smith said that while headless dressed walleye might sell for $3.00 per pound, pike would be valued at $1.00 per pound and whitefish would be worth less than pike. Suckers would have very little value. [ 5 ] The higher price paid for walleye is significant to fishers from Saskatchewan’s Far North because of the high cost of transporting fish to market. Officer Smith said that the closest markets for Black Lake commercial fishers would be La Ronge or Prince Albert, with most fishers preferring to take their fish to Prince Albert.

It is over 800 kilometres by road from Wapata Lake to Prince Albert. [ 6 ] Officer Smith said that on December 9, 2013, the accused called him to say he would be taking a load of fish to Prince Albert. Likely in response to this call, Officer Smith decided to make a patrol to Wapata Lake to check out commercial fishing activity on the lake. The next day, on December 10, even though the outdoor temperature was at -30 degrees Celsius, he and Officer Dow travelled by road south from Stony Rapids to a point near Wapata Lake.

From this point, they used snow machines to travel another kilometre to get to the lake. [ 7 ] Once on Wapata Lake, Officers Smith and Dow patrolled by snow machine to various parts of the lake. Their first stop was at a cabin belonging to the accused and his father, John Echodh. No one was home, but the cabin was still warm from having been recently occupied. The officers then travelled through Wapata Lake to check areas where the accused had traditionally set nets in past years.

In all, they checked four sites where it appeared the accused had set nets under the ice and then removed them again. [ 8 ] At the first site, they found offal from about 100 walleye (calculated by counting fish heads) as well as five whole pike. At the second site, they found offal from 75 to 100 walleye as well as nine whole pike and four whole whitefish. At the third site, they again found offal from 75 to 100 walleye as well as four whole pike and one whole whitefish.

At the fourth and final site, they found offal from about 200 walleye as well as 21 whole pike, nine whole whitefish and 30 or 40 whole suckers. [ 9 ] Significantly, the whole pike and whole whitefish found had apparently not been separated out in any fashion but were mixed in with the walleye offal. [ 10 ] When the conservation officers checked the accused’s four fishing sites, there were no nets still set in the water. At the third site, however, they did locate two nets cached on shore. These nets were protected from possible animal predation by a nearby smudge fire that was still smouldering.

At the fourth site, the officers found another four nets and a jigger (a device used for setting nets under the ice). The officers seized the six nets, the jigger and an electric light. They also seized most of the whole pike and whitefish that they found. [ 11 ] The officers did not seize the whole suckers they found.

Officer Smith’s testimony was that although suckers have a small commercial value, that value is so insignificant that fishers are allowed to discard suckers as “rough fish” without penalty. [ 12 ] To their credit, Officers Smith and Dow did what they could to salvage the whole pike and walleye they had seized from the accused’s four fishing locations. They took the fish back to Stony Rapids where they thawed them out and then removed what filets they could. Some of the pike and all of the whitefish had suffered some damage from wild animals.

Nonetheless, they were able to salvage 60 pounds of filets which they then distributed to elders in the local community. Defence Evidence [ 13 ] The accused testified as the sole defence witness. By way of background, he said that he had started commercial fishing at the age of 14 by helping his father, John Echodh. He has since taken over the family fishing operation and now owns 34 nets. He said that he usually employs two helpers when he is fishing. [ 14 ] In addition to fishing, the accused also traps.

During the 2013-2014 season, he had some success with his fur catch including 62 marten. [ 15 ] The accused said that following his birthday on December 5, 2013, he spent a couple days getting ready to go fishing and then started his fishing operations on Wapata Lake on December 7. He had a man named Donald Kasagan with him as a helper. They began by setting six nets. [ 16 ] The accused went on to say that he and his helper pulled their nets for the first time on December 8. He said that he dressed

the walleye that were caught by cutting their heads off and gutting them. Any fish that were not dressed were taken to his cabin that evening. [ 17 ] On December 9, the accused and Donald Kasagan again spent the day fishing. However, by noon, Donald Kasagan was not feeling well, and by evening, his condition had worsened. He began experiencing drowsiness and headaches. The accused therefore decided to finish pulling his nets and then take Donald Kasagan back to Black Lake. [ 18 ] By the time the accused finished pulling his nets, it was dark out.

He therefore made use of a generator and an electric light to do his work. He again dressed the walleye but admits that he discarded the other fish he took from the nets. He then took Donald Kasagan back to Black Lake by snow machine, a distance of about 40 kilometres. He understood that Donald Kasagan would then make his own way to the local medical clinic. [ 19 ] It appears that the accused had somehow made arrangements to hire a driver to haul his fish catch to Prince Albert by truck on the evening of December 9.

Therefore, after dropping Donald Kasagan off in Black Lake, he headed back to Wapata Lake with his snow machine at around 9:00 p.m. Once back at Wapata Lake, he used his snow machine to haul his dressed walleye to the road to meet his truck driver. He then accompanied his driver to Prince Albert where he sold his fish. [ 20 ] The accused’s evidence suggests that the trip to Prince Albert was not profitable as he did not have enough fish to fill the truck.

This is consistent with Officer Smith’s evidence who testified that his inquiries indicated that the accused sold 650 pounds of dressed walleye to a buyer in Prince Albert on December 10 for a price that would then have been in the range of $2.25 to $2.75 per pound. [ 21 ] In his testimony, the accused denied that he intended to waste any of the whole pike and whitefish left behind at Wapata Lake. He said he would normally deliver some of this fish to Black Lake community members. He would also use some as bait to attract fur bearing animals during the trapping season.

While he had these two purposes in mind, he intimated that a lack of time on the night of December 9 had made it impossible for him to deal with his pike and whitefish catch in any manner at all. The Issues [ 22 ] Paragraph 92(

c) of The Fisheries Regulations reads: 92 No person shall: (

c) abandon, handle, transport or dispose of any fish in a way that wastes, spoils or otherwise renders those fish unfit for human consumption except as authorized on a licence or authorized by an officer; [ 23 ] As I see it, the accused’s arguments are that he should not be found guilty of wasting fish because: 1. He was intending to take at least some of the pike and whitefish back to his home community for human consumption; 2. He was intending to leave some of the pike and whitefish out as bait for fur-bearing animals; and 3.

The necessity of taking his helper Donald Kasagan back to Black Lake made it impossible to deal properly with the pike and whitefish he had caught. [ 24 ] Regarding the first argument, I believe the accused would be justified in giving fish from his nets to community members for their use provided the weights were properly recorded and counted towards Wapata Lake’s commercial fishing quota. But I am unable to find that the accused actually intended to save the pike and whitefish he caught for human consumption.

The fact that the pike and whitefish were mixed in with the walleye offal indicates that he had no such intention. At a minimum, he should have been separating these fish from the offal so that they could be dealt with properly. [ 25 ] The accused’s argument that he was saving the pike and whitefish for bait raises the question of whether such a purpose could be justified in any circumstance. The wording of paragraph 92(

c) suggests that any use of fish other than human consumption will be deemed wasteful. But I do not need to decide that issue. On the facts before me, it is clear that the accused had more than enough walleye offal and suckers to meet any of his trapping bait needs. Adding pike and whitefish to his bait supply would be totally unnecessary and wasteful. [ 26 ] The accused argues that the necessity of taking Donald Kasagan back to Black Lake and then getting his walleye catch shipped to Prince Albert made it impossible to deal with the pike and whitefish properly. I cannot accept this argument.

Putting the pike and whitefish into a fish tub and covering them with snow for protection would have taken only a few minutes. Accordingly, any defence of necessity must fail. [ 27 ] As I am unable to accept the arguments put forward by the accused, I find him guilty on his charge of wasting fish contrary to paragraph 92(

c) of The Fisheries Regulations. Penalty

[ 28 ] Following the trial held on April 18, 2015, this matter was back before me at Black Lake on May 5, 2015. At that time, I indicated I would be convicting the accused on his charge of wasting fish. The Crown accordingly put forward submissions with respect to sentencing. [ 29 ] The

Summary Offences Procedure Regulations, 1991 , RSS c S-63.1, Reg 2, Table 18 sets out the specified penalty sum for a charge of wasting fish to be $200.00 plus $50.00 per fish wasted to a maximum of $2,000.00. If I were to apply this to the accused’s case, he would, with over 50 fish wasted, be looking at the maximum penalty of $2,000.00. The Crown seeks this penalty. [ 30 ] The specified penalty sum for wasting fish is not a minimum penalty.

It is therefore open to me to vary the Table 18 penalty. [ 31 ] I recognize that commercial fishing regulations play a key role both in insuring that the commercial fishing industry operates in an orderly fashion and also in conserving our province’s fish stocks. It follows that a significant breach of the Regulations should attract a penalty that will have a deterrent effect. [ 32 ] Notwithstanding the need for deterrence, I am of the view that the $2,000.00 penalty sought by the Crown would be unduly harsh in the accused’s case.

As a commercial fisher in Saskatchewan’s Far North, the accused is engaged in an occupation that has very thin profit margins. He no doubt works hard for very little financial gain, and the penalty should reflect that reality. [ 33 ] I must also take into account the fact that the accused’s breach of the Regulations was of short duration. The wasting of fish occurred over a period of only two days, i.e.

December 8 and 9, and not during the whole season. [ 34 ] In this case, I will reduce the specified penalty sum amount and impose a fine of $500.00 plus an $80.00 surcharge. [ 35 ] The Crown also asks that I make an order suspending the accused’s commercial fishing licence for Wapata Lake. The authority allowing a judge to make such an order is set out in subsection 29(2) of The Fisheries Act (Saskatchewan), 1994 . That subsection reads: Where a person is convicted for the contravention of any provision of this Act, the judge may: (

a) revoke that person’s licence, if any; or (

b) revoke that person’s licence, if any, and prohibit the person from applying for or obtaining a licence for not more than five years from the date of conviction. [ 36 ] Subsection 2(2) of The Fisheries Act (Saskatchewan), 1994 reads, “In this Act, any reference to this Act includes the regulations made pursuant to this Act.” Accordingly, subsection 29(2) of the Act applies not only to a breach of the Act but also to a breach of the Regulations . [ 37 ] Any order suspending the accused’s right to commercial fish on Wapata Lake will be a severe sanction.

This is especially true since Wapata Lake allows for high walleye catches. As well, the accused has a cabin on Wapata Lake that he can ordinarily use as a base for his fishing operations. Without being able to fish Wapata Lake, the accused’s commercial fishing venture may not be viable. Nonetheless, I see the Crown’s request for a suspension order as a reasonable one that underscores the importance of a well regulated commercial fishery. I am therefore revoking any licence the accused currently has to fish commercially on Wapata Lake.

I further prohibit the accused from applying for or obtaining a licence to fish commercially on Wapata Lake for a period of one year from today’s date. [ 38 ] The Crown is not seeking forfeiture of the items seized by Officers Smith and Dow in this investigation. I will therefore direct that the items seized (with the exception of the fish) be returned to the accused within 60 days. ____________________________________ S.I. Robinson, J