R. v. Alvarez et al. Date:, 2017 BCPC 20

Citation: R. v. Alvarez et al. Date: 20170111 2017 BCPC 20 File No: 19577-1 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RUBEN TRINIDAD ALVAREZ JAIME MOISES MALIWANAG JAYPER CONSTANTINO SANCHEZ JOCELYN PEREZ SANCHEZ REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. P. MacCARTHY Counsel for the Crown: C. Peel Counsel for the Defendant: C. Mackie

Place of Hearing: Colwood , B.C. Date of Hearing: January 11, 2017 Date of Judgment: January 11, 2017 Introduction [ 1 ] THE COURT: Ruben Trinidad Alvarez and Jayper Constantino Sanchez are before the court, having been charged on a two-count Information. The charges relate to illegal crabbing. [ 2 ] On Count 1, the allegation to which both Mr. Alvarez and Mr.

Sanchez have entered pleas of guilty is that on or about the 1st day of July, 2016, that they, being persons who were carrying on an activity under the authority of a fishing licence, did fail to comply with a condition of the licence, namely they caught and retained female Dungeness crabs. That is an offence contrary to s. 22(7) of the Fishery (General) Regulations , and it is an offence contrary to s. 78(

a) of the Fisheries Act . [ 3 ] On Count 2, both Mr. Alvarez and Mr. Sanchez have entered pleas of guilty that at the same time and date, that they did unlawfully possess fish, namely undersized Dungeness crabs measuring less than 165 millimetres in a straight line through the greatest breadth of the carapace, contrary to s. 33 of the Fisheries Act . That is contrary to s. 37(1)(

b) of the British Columbia Sport Fishing Regulations and it is an offence under s. 78(

a) of the Fisheries Act . [ 4 ] Having entered the pleas of guilty with respect to these matters, it is the responsibility of this court and its task to impose a fit sentence for these offenders with respect to each of the two offences. I have before me a joint submission made on behalf of both accused and the Crown. Circumstances [ 5 ] Crown has outlined all of the circumstances relating to these matters. No issue is taken with respect to those circumstances.

However, for the purposes of this sentencing, it is useful to review some of the most relevant facts. [ 6 ] The matters arose as a result of the Sooke RCMP noting lights at the Rotary Pier in Sooke Park at 1:15 in the morning of the day of the offences. It was the investigating constable's experience that this particular location was used by people who were poaching crabs illegally. As a result of an investigation conducted by the RCMP, both Mr. Alvarez and Mr.

Sanchez were charged with the two offences. [ 7 ] When the police arrived on the scene, there were two other individuals who are named in the Information but who the Crown is not proceeding against; I understand that Crown will be entering stays of proceedings with respect to both of them. The investigation revealed that there were at least four, 5-gallon pails containing a large number of crabs. This investigation by the RCMP also determined that nearly all of the crabs were of the Dungeness variety.

Of the crabs that were measured, it turned out that only one of the 125 crabs which were seized was of a legal size and variety. That was a red rock crab. The remaining 124 Dungeness crabs were illegal either in size or variety. Of these, 14 of the Dungeness crabs were undersized. Of the remaining Dungeness crabs, it was noted that 110 were female crabs; taking and retaining that variety was prohibited under the terms of the licence pursuant to which Mr. Alvarez and Mr. Sanchez were fishing.

All crabs were immediately returned to the ocean. [ 8 ] Accordingly, the Crown has proceeded against these two accused by way of the present Information. I am told that one of the options that may be followed by a peace officer is to issue tickets under a ticketing scheme provided for pursuant to the Fisheries Act Regulations. However, in this case, there is a gap in the legislation such that there is no prescribed fine amount for illegally taking and retaining female crabs. [ 9 ] As a result, Crown proceeded by way of the Information.

Crown is suggesting in its sentencing submissions that the fining provisions that are contained under the ticketing scheme are of some relevance when considering whether or not the proposed sentence in this matter is fit. Circumstances of the Offenders [ 10 ] I have received submissions with respect to both of the accused in this case. Mr. Sanchez is 44 years of age, born in Canada. He works as a software developer. He earns approximately $65,000 a year. He is married and has lived in Victoria, as I understand it, for about the last two years. [ 11 ] Mr.

Sanchez, having been born in Ontario, apparently is not familiar with crabbing and therefore he relied upon his friend, Ruben Trinidad Alvarez, to assist him in gaining a supply of crabs to help celebrate the July 1st holiday. [ 12 ] Mr. Alvarez is 66 years of age. He has lived in Victoria for a number of years, as I understand it, being about 24 in number. He was originally born in the Philippines. He has had an occupation as a welder and now works part time in construction. He earns approximately $15,000 per year.

He is married and, as I understand it, has three adult children. [ 13 ] Both of the accused are active in their church community. They are described as being devout. Prior to these offences, they have been engaged providing volunteer assistance for a number of community programs. Thus as a result of defence submission I am given to understand that both are actively involved within their church communities and are actively involved in performing good works within the broader community. [ 14 ] I have also heard directly from both Mr. Sanchez and Mr. Alvarez. According to submissions received from both defence and

Crown counsel, from the outset they have both acknowledged their wrongdoing and their irresponsibility by participating in the illegalcatching and retention of crabs. They have sought to deal with these offences from a very early date.

They have expressed directly tothe court what I take to be genuine remorse for their lack of judgment and their irresponsible behaviour. [15] They strike me as individuals who are accepting full responsibility for their behaviour and they recognize the very significantdamage that this type of behaviour can have on the valuable crustacean stocks and particularly the crab stocks in the coastal waters ofBritish Columbia. [16] The sentencing position that has been proposed to me is that each is to receive a fine of $5,000, that each is to be subject to aprohibition order for fishing and the seized property, being the crab pots, as I understand belonging to Mr.

Alvarez, are to be forfeited. [17] There is an agreed plan for instalment payments of the two fines. Analysis [18] In matters of this nature, the courts of this province have held that offences under the Fisheries Act and its regulations statutorilycreate public welfare offences. Often the case of R. v. Cotton Felts Ltd., (ON CA), [1982] O.J.

No. 178, being adecision of the Ontario Court of Appeal, is cited in support of the proposition that such public welfare offences ranging from safety andconsumer protection to ecological conservation, are accepted as essential to the public interest to ensure standards of conduct,performance, or reliability to make life tolerable for all (see paragraph 19). [19] Cotton Felts at paragraph 23 makes it clear that deterrence, both general and specific, is a key element of public welfareoffences.

Cotton Felts also indicates that deterrence is not to be taken in the usual negative connotations of achieving compliance bythreat of punishment, but rather to seek deterrence in a more positive aspect; that positive aspect is indicated in Cotton Felts to be one ofseeking through education and emphasizing to individuals the community's disapproval of acts which are deemed to be morallyreprehensible to the community.

Hence the educative effects of penalties imposed under public welfare offences are such that they willdissuade others from committing acts that are deemed by the community to be reprehensible. [20] Accordingly fines, prohibitions and seizures are means by which the goals for dealing with public welfare offences can beappropriately met. [21] The fines that are being proposed are less than what would be available presuming two things: one, a ticketing scheme thatwould have allowed for dealing with female crabs being caught and retained contrary to the licensing provisions and two, prescribedfines for retaining female crabs similar to those imposed for catching and retaining under sized crabs, being $100 for the first and $50 foreach additional crab.

Crown has indicated, and I accept, that each of the two accused in this case could very well have been ticketed foramounts somewhere in the range of $11,000 each. [22] Accordingly, having full regard to all the circumstances in this case, the number of crabs involved, the fact that there were twoseparate violations, one by virtue of the undersized crabs and the other for the keeping of female crabs, and the fact that there was a levelof organization to the taking of these crabs, I think that these aggravating circumstances clearly indicate that fines of this nature areappropriate. [23] Similarly, I accept in mitigation the acceptance of responsibility by both of the accused in this matter and their genuine remorse.

Disposition [24] Accordingly, I will get the two accused gentlemen to come forward, please. The sentence that I am imposing upon you is inaccordance with the joint submission that I have received. There will be a $5,000 fine for each of you. Each of you will pay $1,000 ofthat fine amount on today's date. There will also be a requirement that you pay the remaining portion of the fines of $4,000 each withinsix months of today's date on or before July 11, 2017. [25] There will be also a forfeiture order of the four crab pots and the lines that were the property of Mr.

Alvarez, and I will makethe requested order under s. 79 of the Fisheries Act such that each of you will be prohibited from any form or manner of fishing for aperiod of two years from today's date. [26] Are there any other terms and conditions that I have not dealt with that need to be? [27] MS. PEEL: No, that's everything, Your Honour. [28] THE COURT: All right, so those will be the fine amounts.

I note that you have friends and members of your churchcommunity; as part of the education process, the biggest value you can provide to them is to relate your unhappy experiences, so thatthey understand the very serious nature of these types of charges and the potential harm that these offences can do to the crab stocks inthe coastal waters of British Columbia. [29] I am confident, having heard directly from both of you, that you will undertake that responsibility. [30] AN ACCUSED: Yes, Your Honour. [31] THE COURT: There is no victim fine surcharge for fisheries offences.

Crown is going to deal with the two remainingaccused. [32] MS. PEEL: Yes, thank you, Your Honour. I will direct a stay of proceedings against Jaime Maliwanag and Jocelyn Sanchez,and that is on both counts of the Information. [33] THE COURT: All right, stays of proceedings against those two individuals are being recorded. Thank you.

[ 34 ] MS. PEEL: Thank you, Your Honour. [ 35 ] MR. MACKIE: Thank you, Your Honour. (REASONS CONCLUDED)