R. v. Topolewski Date:, 2011 BCPC 71

Citation: R. v. Topolewski Date: 20110223 2011 BCPC 0071 File No: 201765-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LARRY STEVEN TOTOLEWSKI EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE F. HOWARD Counsel for the Crown: J. Lawn Counsel for the Defendant: E. Doricic Place of Hearing: Vancouver , B.C. Date of Hearing: February 23, 2011 Date of Judgment: February 23, 2011 [ 1 ] THE COURT: This matter is for sentencing today.

The accused has pled guilty to one count of unlawfully selling sockeye salmon from the Fraser River. [ 2 ] To put the offence in its simplest form, the sale of these fish was unlawful because they were not caught under the authority of any existing licence that authorized their sale. [ 3 ] The offence date was August 26th, 2009. In 2009, due to a poor return of Fraser River sockeye, there were no commercial or recreational fishery openings for sockeye on the Fraser.

There were no economic opportunity fishery openings for sockeye salmon for First Nations people on the Fraser River in that year, although there was a limited directed sockeye opportunity on the Fraser River for the Musqueam and Tsawwassen First Nations. This fishery was only for food, social, and ceremonial purposes. [ 4 ] The circumstances of the offence are as follows: On April 26th, 2009, the accused was observed selling the sockeye salmon in question from the back of his Ford Bronco truck at the intersection of Victoria and Kitchener Streets in Vancouver, British Columbia.

Fishery Officer Tomlin attended the scene and observed the truck. Inside the truck he observed a brown tub and two coolers. The brown tub contained both ice and salmon. The accused admitted to Fishery Officer Tomlin that he was the owner of the vehicle, and he

further admitted to owning and selling the salmon contained in the vehicle. It is admitted that the salmon that he was selling were, in fact, from the Fraser River watershed. [ 5 ] The accused admitted to the authorities that he had obtained 60 fish from a First Nations person on the Musqueam Reserve, that he was going to sell about 40 fish and the rest would be given to his family, that he was selling the fish for $20 per fish, and that he had sold about six fish.

There was a cardboard sign in the truck or in the truck window with the writing "Fresh Sockeye", which he agreed referred to the fish that he was selling out of the truck. [ 6 ] Fishery Officer Tomlin did an inventory of the Ford Bronco and found the "Fresh Sockeye" cardboard sign, 72 clear bags, a brown tote, two coolers and 53 sockeye salmon. All of these items were seized from the accused on the date of the offence. [ 7 ] The accused explained how he had come into possession of the fish. He had owned an expensive leather coat. Due to ill health, he lost so much weight that the coat no longer fit.

He had a Native friend, a wood carver, who agreed to create a large carving of a bear for him in exchange for the coat. The accused delivered the coat to his friend, but the wood carving was never completed. One of the legs of the bear broke part way through the project. In the end, the carving project was abandoned. The accused's friend offered to pay for the coat by giving some salmon to the accused. [ 8 ] Upon receipt of the salmon, which were 60 in number, the accused realized that this was too many fish for his own consumption. He decided to sell some and keep about 20, which he would give to his family.

He was attempting to sell the fish from the back of his truck at the corner of Kitchener and Victoria Streets when the police and the Fisheries Officer intervened. [ 9 ] The Crown position is that the accused should be fined $2,500. In addition to this penalty, the Crown is seeking a forfeiture order with respect to the Ford Bronco truck. The defence position is that there should be a fine of $500 and no seizure of the truck. [ 10 ] Counsel do agree that deterrence is a critical factor in a sentencing involving the Fisheries Act and related regulations. See R. v.

Weaver [2002] N.B.J. 140, (N.B.Q.B.) at paras. 22 and 23 . I accept that the sentencing principle that drives a sentencing hearing of this kind is that of deterrence, both general and specific. I also agree with defence counsel's position that the emphasis on deterrence does not mean that the other well-recognized principles of sentencing can be ignored. See Weaver (supra) at paragraph 25: While deterrence is an important if not uppermost factor in enforcing Fisheries regulations, it is by no means the only one.

The question in this case is whether the learned trial judge overlooked or failed to give sufficient weight to other factors which would have had the effect of alleviating the burden of deterrence applied in this case. All things considered, was the sentence 'fit and appropriate' to the circumstances? [ 11 ] See also paragraph 34 in Weaver wherein the court cited R. v. Gould (1998) 170 NFLD & P.E.I.R. 57 (Nfld.S.C.): Justice Roberts [in Gould ] reviewed the case law and concluded that the trial judge focused solely on the perceived necessity of deterrence.

Other aspects of the principles of sentencing as outlined in

Section 718 of the Code were "overlooked entirely": At para. 12: Secondly, the trial judge focused solely on the perceived necessity of deterrence. Other aspects of the principles of sentencing set out in s. 718 were overlooked entirely, including the fundamental principle that "a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender" dictated by s. 718.1, and the requirement for consistency mandated by s. 718.2(b).

One has to question the proportionality of a fine equivalent to $13,000 for the possession of three salmon (assuming the two brothers intended to divide the six salmon between them), notwithstanding the evident need for conservation of the stock and, therefore, deterrence. [ 12 ] I will deal firstly with the question of what is the appropriate fine in this case. I begin by observing that the maximum penalty for the offence before me is $100,000. This fact suggests that nominal fines in the range of $100 to $500 are not appropriate except perhaps in the case of one or two fish. R. v.

Brown [2010] BCCA 225 at para. 14. [ 13 ] In determining the appropriate fine in the present case, I must consider the gravity of the offence, the circumstances of the offence, mitigating and aggravating circumstances, all in context with the fundamental objectives of sentencing, including denunciation, specific and general deterrence, and rehabilitation of the offender. [ 14 ] I begin by noting that the accused is a 61-year-old non-Aboriginal male with no criminal record and no prior fisheries-related record.

He was fully employed as a plumber for 18 years until an accident in 2002 when his right foot and ankle were crushed in an industrial incident. He is physically impaired to the point where he is unemployable. He currently supports his 19-year-old son and lives on a Canada Pension of $2,000 a month, plus a long-term disability payment of $1,000 a month. That is gross income before taxes. [ 15 ] The offence itself appears to be an isolated event that arose as a result of the accused's agreement to barter away an expensive leather jacket to a Native friend in exchange for a wood carving that was never delivered.

The debt was settled by his Native friend delivering 60 sockeye salmon in place of the wood carving. These circumstances suggest that there is little to no risk that the accused will engage in this offence again. It appears to be a completely isolated event. [ 16 ] Upon a consideration of all of the circumstances, I am satisfied that a fine of $2,400, which is double the amount that the accused would have received had he sold all of the 60 fish for $20 each, is an appropriate sanction.

In my view, the $500 fine proposed by the defence does not adequately reflect the gravity of the offence or the concern that we have for the preservation of the fisheries, especially at the time that the offence occurred, that is, in the year 2009 when no person, Aboriginal or otherwise, was permitted to sell sockeye salmon from the Fraser River, due to the precarious state of this particular fishery. [ 17 ] On the other hand, I am satisfied that a fine of $2,400 does adequately reflect the gravity of this offence which involves 60 fish, not one or two.

I am also satisfied that this fine is sufficient to specifically deter this accused and to send a strong deterrent message to the pubic at large. [ 18 ] I will deal now with the question of forfeiture. Sections 72(1) and (2) of the Fisheries Act read as follows:

(1) Where a person is convicted of an offence under this Act, the court may, in addition to any punishment imposed, order that anything seized under this Act by means of or in relation to which the offence was committed, or any proceeds realized from its disposition,be forfeited to Her Majesty.

(2) Where a person is convicted of an offence under this Act that relates to fish seized pursuant to paragraph 51(a), the court shall,in addition to any punishment imposed, order that the fish, or any proceeds realized from its disposition, be forfeited to Her Majesty. [19] It is clear that a forfeiture order of the kind contemplated by s. 72 is "in addition to any punishment imposed." I am also satisfiedthat, in the circumstances of the present case, the accused’s vehicle is the proper subject of a forfeiture application by the Crown.

Theoffence was committed "by means of or in relation to" the truck. [20] I agree with the defence position that the mere fact that the accused's truck was used by him to commit the offence is not by itselfa reason for issuing a forfeiture order. It is simply the critical fact that permits the court to consider forfeiture. I am also of the view thatthere is no "presumption" in favour of forfeiture. To the contrary, I have a discretion to order or not order forfeiture.

That discretionmust be exercised on a principled basis by considering all of the circumstances surrounding the commission of the offence and thecircumstances pertinent to the accused himself. [21] The relevant circumstances in my view are as follows:

(1) The accused did use his truck as an outlet for the sale of the fish.

(2) The offence involved 60 fish. This is far from being a most egregious offence of its kind.

(3) The accused did not catch the fish. He is not the person responsible for removing the fish from the control and possession of theMusqueam and Tsawwassen First Nations.

(4) The accused was not "in the business" of unlawfully selling sockeye in large quantities, for example, to restaurants or otheroutlets. This was an isolated incident arising out of unique circumstances that are unlikely to arise again.

(5) The accused has no prior history of committing offences against the Fisheries Act.

(6) It is clear that the accused used his truck to facilitate the sale of the fish; however, it is not so clear that the truck was "essential"to the commission of the offence in the same way that a fishing boat might be considered essential to the offence of catching fish withouta licence or contrary to a fisheries closure. The use of the truck in this instance is more properly characterized as incidental to thecommission of the offence. This does not mean it was not used. It was used; however, the fish could have been sold by other means thatdid not actually involve the truck.

(7) The truck is important to the accused in his daily life. He uses it for many other lawful purposes unrelated to the sale of the fish.

(8) The truck was not altered in any way for the express purpose of committing the offence.

(9) The truck is an old 1989 Ford Bronco with 250,000 kilometres on it. It has an estimated value of $2,500. The most valuable partof the truck is, in fact, a winch that is attached to the front. The value of that winch is estimated to be a thousand dollars. That winchattachment was not involved in the commission of the offence in any way.

(10) The truck was seized on the day the offence was committed back in October 2009. The accused has been deprived of the truckfor 18 months now. This in itself amounts to a significant additional penalty beyond the fine that I am about to impose. [22] Upon a consideration of all of the circumstances before me, I am satisfied that a forfeiture order relating to the accused's truckwould not be appropriate. A fine of $2,400 is a significant one that will clearly deter the accused from committing similar offences.

Iam also satisfied that that fine is sufficient in the circumstances of this case to promote the important sentencing principle of generaldeterrence. An additional penalty by way of forfeiture of the truck is, in my view, not required to promote this objective in this case. [23] In coming to this conclusion, I have considered the very helpful written submissions and legal authorities that have been providedto me by the Crown and defence counsel. The decisions that I have found most helpful include Weaver (supra); R. v. Erickson [2006]BCPC 636, paras. 14-16; R. v. Weir (NL SC), [2000] N.J.

No. 4, paras. 30-39; R. v. Sandover-Sly [2002] BCCA 56(B.C.C.A.), para. 27. [24] In conclusion, I am imposing a fine of $2,400. Pursuant to ss. 72(1) and 72(2) of the Fisheries Act, I am ordering forfeiture of thecardboard sign, the bags, the two coolers, the brown tote, and the 53 sockeye salmon. I decline to order forfeiture of the Ford Broncotruck. That truck is to be returned to the accused. [25] MR. DORICIC: Thank you, Your Honour. [26] THE COURT: Time to pay? [27] MR. DORICIC: I am going to ask Your Honour to consider one year.

There is provision in the Fisheries Act that provides thatFisheries does not require the return of the vehicle until the fine is paid. So there is some motivation on Mr. Topolewski's part to pay itas quickly as possible. But given his limited income, it is going to take some time. [28] THE COURT: Two hundred dollars a month? He has got a gross income of $3,000 and he cannot do better than that? [29] THE ACCUSED: I'm going to try and do it. [30] THE COURT: Try what? Two hundred a month?

[ 31 ] THE ACCUSED: Two hundred a month. I just have to reorganize my finances. [ 32 ] THE COURT: I am just curious as to what he is spending his money on. But, all right, I will give you one year to pay the fine. [ 33 ] THE ACCUSED: Thank you. [ 34 ] MR. DORICIC: Thank you, Your Honour. [ 35 ] THE COURT: Obviously, as soon as he gets -- you do not have to wait a year, and as soon as the fine is paid, you might get your truck back sooner. All right. Attend at the registry downstairs to sign the papers -- [ 36 ] MR.

DORICIC: I'll take him directly, yes. [ 37 ] THE COURT: -- before you leave the building. [ 38 ] MR. DORICIC: Thank you, Your Honour. [ 39 ] MS. LAWN: I am not sure if the Crown has already stayed the outstanding counts, but if I have not, I would like to do that at this time. Thank you. (REASONS FOR SENTENCE CONCLUDED)