R. v. Martynuik Date:, 2015 BCPC 412

Citation: R. v. Martynuik Date: 20151201 2015 BCPC 0412 File No: 26082 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAVID MARTYNUIK ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE FLEWELLING Counsel for the Crown: I. McFadgen Counsel for the Defendant: A. La Bar Place of Hearing: Campbell River , B.C. Date of Hearing: August 13, 2015 & September 2, 2015 Date of Judgment: December 1, 2015

[1] Mr. Martynuik, a commercial fisherman, has pled guilty to two counts of unlawfully fishing in three separate RockfishConservation Areas between September 15 - 19, 2010 and October 19 - 25, 2010. As these are Closed Areas, no commercial fishing ispermitted. [2] At the time of these offences he was the master and owner of the Pacific Siren and held a Communal Halibut License with alicense issued by the Haida First Nation. This dual licence allowed him to fish commercially as well as for food, social and ceremonialpurposes (FS & C).

His dual licence did not permit him to fish for FS & C purposes in the three RCA areas. [3] Mr. Martynuik also pled guilty to two counts of selling the illegally caught fish on September 19, 2010 and October 25, 2010. [4] Lastly, Mr. Martynuik pled guilty to failing to report an estimate of the weight and species of the fish he caught while on a dualfishing trip between September 15 and September 19, 2010 and between October 19 and October 25, 2010. [5] There are six counts in total.

The crown submits that the appropriate sentence is $5,000 on each of the four counts I havesummarized in paragraphs 1 and $2,500 on each of the two counts as summarized in paragraph 3 of this decision resulting in a total fineof $25,000. The crown suggests that an extended period of time to pay the fine is appropriate and suggests 18 months. The crown is notseeking any other prohibition or restitution orders. [6] On the other hand, Mr. Martynuik submits that the appropriate fine is $500 on each of the six counts resulting in a total of$3,000. [7] He has no prior record.

The Facts and Evidence: [8] Rockfish have a long gestation period. Their slow growth rates and sedentary life history makes them particularly vulnerable todepletion by over fishing. Several rockfish species have been identified as “at risk” and, several years ago, the Department of Fisheriesand Oceans Canada responded with measures to protect this resource, including the establishment of areas closed to fishing. A letterfrom Adam Keizer, Fisheries Management, Fisheries and Oceans Canada, was an exhibit in this hearing.

In it, he states that: “Excessive fishing will impact current rebuilding objectives and could over the longer term have a significant impact (on) rockfishabundance along the coast of British Columbia.” [9] Thus the purpose of the Rockfish Conservation Area is to ensure sustainable rockfish population over the long term. [10] There are three RCA’s in which Mr.

Martynuik fished illegally: • Five incursions on September 15, 2010 into the West Banks Island RCA; • One incursion on September 18, 2010 into the Goschen RCA; • Four incursions on October 21, 2010 into the Otter Passage RCA. [11] Approximately 1305 lbs of Halibut from the West Banks and Goschen catch and 285 lbs of Halibut from the Otter Bay Passagecatch were sold by Mr. Martynuik. Based on an average value of $6.09 per lb. and $6.21 per lb. respectively, the revenues totaledapproximately $9,700.00. The Law: [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.." [13] In determining a fit and proper sentence I must apply the objectives of sentencing set out in

section 718 of the Criminal Codeincluding any aggravating or mitigating circumstances. [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 offense 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.” [16] In this case, the mitigating factors are that Mr.

Martynuik has pled guilty to these charges and thus has accepted responsibility

for his actions. He has no prior record. [ 17 ] Shawn Baybutt, General Manager of the Haida Wild provided a letter on Mr. Martynuik’s behalf dated September 2, 2015. He describes Mr. Martynuik’s exceptional work ethic and indicates that he has been their top producing fishing boat for the past two years. He also advises that Mr. Martynuik is an important role model to his younger crew and exhibits both patience and leadership with his crew. [ 18 ] Shawn Cowpar, for the Council of the Haida Nation, also provided a letter and advised that Mr. Martynuik has worked and been raised on the ocean his whole life.

He indicates that Mr. Martynuik has contributed to the conservation initiatives of the Haida Nation Council and refers to his “valued work ethic”. [ 19 ] However, the fact is that he fished in a closed rockfish conservation area that was designed to protect an extremely vulnerable species. In his letter dated August 11, 2015, Mr. Keizer (Fisheries Management) states: “Rockfish Conservation Areas are a key component to the rebuilding strategy for inshore rockfish. Rockfish Conservations Areas were designed as refuges where rockfish would not be subject to fishing mortality.

Fishing in RCAs will reduce the effectiveness of the rebuilding strategy, hindering the longer-term recovery of inshore rockfish and delaying future harvest opportunities .” [emphasis added] [ 20 ] Impact statements were also provided by Deputy Chief Reece of the Hartley Bay Bank and Bruce Watkinson, Manager of the Gitxaala Fisheries Program. Both state that they rely on healthy and abundant fish stocks for their people and community and that over- fishing in the RCA’s undermines their own FSC fishery. [ 21 ] A fine must ensure that Mr.

Martynuik and others who work in the fishing industry are deterred from fishing illegally in areas that are designated rockfish conservation areas. [ 22 ] The cases provided by counsel to the court deal with a variety of offences and I will refer to a few of them: R. v. Collinson - A fine of $3,800 for fishing Chinook salmon with barbed hooks; no prior record. R. v. Kern - A fine of $12,500 for fishing once during a closed time; he had a prior record and previous fines with the last being $7,500. R. v.

Pike - A find of $1,500 for failing to complete his logbook; $2,000 for exceeding his crab quota; he had prior offences involving fines of $500. [ 23 ] In Pike , Judge Porter provides a useful

summary of sentencing cases. The fines for failure to complete log books ranged from $750.00 to $1,500 per count. For exceeding catch limits the fines ranged from $800.00 to $10,000.00 per count, some coupled with probation orders or additional fines under s. 79 of the Fisheries Act . None of the offences relates to fishing in a rockfish conservation area designed to protect a particularly vulnerable species. [ 24 ] Mr. Martynuik argued forcefully that I should consider his personal financial circumstances in my determination.

I was referred to a number of cases provided by crown in which fines were imposed on individuals who were experiencing financial difficulties or were bankrupt. [ 25 ] In the context of sentencing relating to an environmental offence, Judge Cowling in R. v. Rivers Inlet Resort Ltd. said this: The financial resources of Mr. Shapland and/or the corporate defendant are somewhat secondary here to the issue of deterrence.

It is important that entities, whether corporate of personal, be deterred from activities which pose an inherent threat to the environment... [ 26 ] I adopt that reasoning in the case at bar although I have turned my mind to the fact that a fine must be reasonable in all circumstances and reflect the principles and objectives of sentencing. [ 27 ] Notwithstanding his assignment into bankruptcy, Mr. Martynuik is still employed and indeed is regarded as a top producer for Haida Wild.

Crown, quite appropriately in my view, is not seeking any fishing prohibitions which would negatively affect his ability to earn an income. [ 28 ] In support of the submission that the fine should be $500 on each of the six counts, Mr. Martynuik says that his fishing in the RCA was accidental. He says that in 2010 he was only in his third season, didn’t realize he was in a RCA and didn’t make himself aware of the RCA boundaries. He says he didn’t know how to complete his log book and that is why he failed to report the number of fish held for food, sustenance and ceremonial purposes.

He also says that under the terms of his licence agreement with the Haida nation half of the fish went to them, thus reducing his own revenue from approximately $9,700.00 to $4,900.00. [ 29 ] He also submits that he did not cause environmental damage or habitat destruction as in some of the cases relied upon by Crown. I note parenthetically that in those cases the fines imposed were substantially higher than what crown is seeking in this case [ 30 ] The statutory regime designed to protect the fisheries imposes strict liability upon offenders.

As the master of a ship, failing to make himself aware of RCA boundaries or how to complete a log book properly is not excusable. Furthermore, I accept that fishing in a protected conservation area does cause harm to the vulnerable species it is designed to protect. This resource is carefully managed to ensure its long term survival and sustainability and disregard of the law that has been carefully fashioned to protect it is, in my view, very serious. [ 31 ] While I recognize that Mr.

Martynuik’s own profit was reduced because he was required to share it with the Haida First Nation, the fact that profits were shared with others or that another group of people benefitted from the illegal activity does not mitigate the fact that it was he who caught and sold fish illegally. [ 32 ] On the two counts of fishing in a closed Rockfish Conversation Area, Counts 7 and 8, the fine is $3,500 on each count.

[ 33 ] On the two counts of selling fish illegally caught in the RCA, counts 9 and 10, the fine is $3,500 on each count. [ 34 ] For the two counts of failing to report, counts 13 and 14, the fine is $1,000 on each count. [ 35 ] I have reduced the fines I otherwise would have imposed to take into account the principle of totality. [ 36 ] The total fine is $16,000.00. He will have until July 1, 2017 to pay and can apply to extend that period if necessary. BY THE COURT _____________________________ The Honourable Judge B. Flewelling