R. v. Roberts, 2018 BCPC 207

Citation: R. v. Roberts 2018 BCPC 207 Date: 20180717 File No: 28470-1 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DENNIS GERALD ROBERTS ORAL REASONS FOR SENTENCE OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M. BRECKNELL Counsel for the Crown: A. Switzer Appearing on his own behalf D. Roberts Place of Hearing: Prince Rupert , B.C. Dates of Hearing: July 16, 17, 2018 Date of Judgment: July 17, 2018 [ 1 ] THE COURT: This is my sentencing decision on File Number 28470, the matter of R. v. Dennis Gerald Roberts as it pertains to Counts 2 and 3 on that Information, Mr.

Roberts having been found not guilty after trial on Count 1. [ 2 ] Count 2 alleges and the court has found Mr. Roberts guilty of failing to comply with a condition of a commercial fishing licence by failing to have a revival tank in operation at all times when a seine net is in the water, and that is contrary to s. 22(7) of the Fishery (General) Regulations and an offence under s. 78 of the Fisheries Act . [ 3 ] Count 3 alleges that Mr.

Roberts, and he was found guilty of, being a master of a fishing vessel in Canadian Fisheries Waters did fail to comply with a condition of a commercial fishing licence by failing to record separate daily catch records in a harvest log for

each day and management area fished by no later than 8:00 a.m. the following day and before any fish are landed contrary again to s. 22(7) of the Fishery (General) Regulations and s. 78 of the Fisheries Act . [ 4 ] These offences occurred, in the case of Count 2, on July the 14th; in the case of Count 3, between July the 14th and July the 16th, 2014, some four years ago. [ 5 ] On the day in question, Mr.

Roberts' vessel was seine fishing for salmon in Area 3-3 near Wales Island, he was the master of the vessel, the Western Lady , and he maintained throughout the trial that, as the master, he was fully responsible for all aspects of the vessel's operation.

The court accepts his position in that regard, but along with being fully responsible for all the aspects of the vessel's operation, he also has to take full responsibility for any violations that that vessel might engage in under the Fisheries Act . [ 6 ] With regard to the circumstances surrounding Count 2, the Western Lady was observed by Fisheries Officers during a seine set to not have the revival tank in operation. The tank itself was operational, but if it had been in operation during the set, there would have been water flowing out of it across the deck of the Western Lady and into the ocean. [ 7 ] Mr.

Roberts, the master, admitted that he did not direct his crew to operate the revival tank when the net was being let out, but only to turn it on once the set was being retrieved and that he thought it was on. There would be no reason why it should not be on, but he could not see that tank from his position as the work was being done and, as a result, given that it was not in operation at the time, there is a violation.

There is a second violation by not having it operational when the net is going out and, obviously, it was crew error, people make mistakes from time to time, but as the master, he must accept responsibility for that. [ 8 ] A revival tank, something unknown to this court until this trial, is a very important aspect of fishing in the modern world.

It is there to assist in returning bycatch from a purse seine to the ocean in a healthy and vigorous state by passing oxygenated seawater through the gills of the fish until they revive from their somewhat semi-asphyxiated state having been pulled out of the water. [ 9 ] In Count 3, the circumstances are that on July the 16th when he arrived at the Canfisco plant in Prince Rupert, Mr. Roberts had not completed the harvest log as required by the Regulations.

He acknowledged that he, in his work history, has never completed a harvest log in advance of landing the fish in order to get an accurate count of how many fish he actually landed. That may have been a practical approach in times past, but the Regulations quite clearly state that the log is to be maintained on a daily basis and, as such, failing to do so is a breach of the Regulations. [ 10 ] Mr.

Roberts represented himself and he is, as he stated many times during the course of the trial, a fisherman and I accept that he is and he is not a lawyer, but the Crown assisted both he, and myself, by presenting a number of cases which speak to a number of aspects the court must consider. Now, those cases include R. v. Fitzpatrick , a decision of the Honourable Judge Crockett made in Port Hardy on May the 10th, 2018, on File Number 16690; R. v. Schafhauser , 2017 BCSC 2287 ; R. v.

Pacific Wind Fishing Corp. and Schatz , a decision of Judge Stewart, Prince Rupert Registry, December 15th, 2016, File Number 6348; R. v. Budd , a decision of Judge Krantz, the Prince Rupert Registry, on April 29th, 2011, Files 5756-1 and 5756-2-A; R. v. Peers , a decision of Judge Challenger, the Bella Bella Registry, made January 20th, 2009, on File Number BB100386; R. v. Haines , another decision of Judge Challenger, Bella Bella, November 17th, 2006, Registry Number BB100379; and finally, the decision of Croft v. Her Majesty the Queen , cited as R. v.

Croft , 2003 NSCA 109 , a decision of the Nova Scotia Court of Appeal. [ 11 ] Some of the cases provided by the Crown dealt with the general sentencing principles around Fisheries Act breaches, some dealt with specific fines for some offences which are very similar to the offences before the court today, and some other offences which, although not completely similar, have a similar sort of milieu or background.

It is clear from reviewing the cases and the Crown generally acknowledges that the case law provides a wide range of sentencing possibilities, mostly fines and a wide range of fines at that. [ 12 ] The court could go into great length about the importance of the Fisheries Act to citizens of Canada, but I think the comments of Mr. Justice Punnett in Schafhauser at paragraph 11 adequately set out for the purposes of sentencing today the importance of Fisheries Regulations.

He says in paragraph 11: The Fisheries Act is regulatory legislation designed to protect and preserve a valuable resource and any contravention of it must be taken seriously. Accordingly, the predominant sentencing consideration must be deterrence, both specifically of the accused and generally of other members of the public who are inclined to act in the same manner. Penalties must be sufficiently severe to communicate to the accused that there is a high risk associated with their illegal activities both for the resource they are affecting and to themselves for their conduct ... Then Mr.

Justice Punnett cites a number of cases. [ 13 ] As anybody who has followed the history of fishing in British Columbia would be well aware, that the fish stocks today are more unpredictable and certainly diminishing as a resource from what they were even 20 or 30 years ago.

As a result, compliance with Regulations, and strict compliance at that, is necessary so that there is at least an opportunity for Fisheries and Oceans Canada and others who study the resource to get some understanding of what fish are being taken, the circumstances they are being taken in, and when bycatch is involved that the bycatch is returned to the ocean in as vigorous and healthy a fashion as possible. [ 14 ] In deciding on what amount a fine should be, the court must take into account the deterrent aspects both specific deterrence for Mr.

Roberts and general deterrence for other masters of vessels that might participate in the similar fishery. The courts have made it clear in previous cases that if a fine is to be imposed the court should first determine the fine and then, if there is an issue with regard to the fine being able to be paid by the defendant, the court should allow more time to pay the fine rather than diminishing the fine to adapt to the defendant's particular circumstances at the time the fine is imposed. [ 15 ] In this case, Mr.

Roberts has advised the court that he lives on a $1,400-per-month total pension income; that he has health issues including having had a major heart surgery in years past, and that he is effectively just getting by. He has not been able to participate in the commercial fishery for some years due to his health conditions.

[16] In deciding the appropriate amount of a fine, the court must also consider the test commonly referred to as the Terroco testbased on a decision of the Alberta Court of Appeal in R. v. Terroco Industries Limited (2005), 2005 ABCA 141 , 196 C.C.C.(3d) 293. The Terroco test, which I will get to in a moment, has been approved and adopted by our Court of Appeal in R. v. Brown, 2010BCCA 225. It consists of five components and I am going to deal with each component and apply it to the case before us today. [17] First of all, culpability. Mr. Roberts was the master of the vessel.

As I said earlier, in addition to having all of theresponsibilities for its operation and all of the authority to manage that ship's resources, he must also be the one to accept responsibilityfor any breaches that occur as a result of that vessel's operation. So the responsibility is his and he is highly culpable. [18] With regard to a prior record, Mr. Roberts has two prior tickets, one in 1998 for a $50 fine, one in 2004 for a $50 fine, and oneconviction for a breach of the Fisheries Act in 2005 for which he received a $500 fine.

Some might say that is a lot of fines to be havingfor one person involved in the industry, but I note, on the other hand, that Mr. Roberts has said, and it is not contradicted by the Crown,that he has had a 50-year career in the industry. So perhaps one could look at it and say three offences in 50 years is not all that bad. [19] Third, the acceptance of responsibility and remorse. Clearly, Mr.

Roberts accepted responsibility for Count 3 right within thecourse of his evidence, but did not accept responsibility for Count 2 on the basis that the revival tank must have been operating becausehe directed that it should be but was not able to confirm that it actually was. In addition to that, to be fair to Mr. Roberts, he expressedlittle or no remorse with regard to these offences and, in fact, expressed somewhat of a little bit of indignation at even having to face thecharges and come to court to deal with them. [20] Fourthly, the damage or harm done.

There is no way to completely measure how much damage or was harm done by theseoffences in these circumstances, but the court must assume that it was near the lower end of the scale for the following reasons. TheFisheries officers' actions on the day in question indicate that they must have treated it at the lower end of the scale.

They could haveimmediately stopped the fishing of the Western Lady and they could have seized the entire catch, but they permitted fishing to continueand they seized, at the end of the day, one-sixteenth of the catch of a value of $380 making the total catch worth approximately $5,600. [21] Fifth, deterrence. Well, the specific deterrence here will undoubtedly be a hardship to Mr. Roberts. He is a man now of limitedmeans and limited ability to get back into the workforce to pay the fine that will be imposed.

On the other hand, the fine has to be highenough to deter others who remain in the industry so that they think twice before participating in the type of activity that has occurredhere. [22] There are aggravating and mitigating factors. The main aggravating factors are that the revival tank was not in use during a setand the blatant refusal on the part of Mr. Roberts to complete the harvest log as required. On the other hand, the mitigating factorsinclude that Mr.

Roberts accepted responsibility for the harvest log infraction and that there is little or no proof of any loss of bycatchdue to the revival tank not being employed during the set that the Fisheries Officers observed. [23] The fines in these types of offences range widely.

As the court has been able to ascertain from the few cases presented by theCrown, they range anywhere from $750 to $2,000 or more for breaches involving revival tank cases and $750 to over $1,000 forbreaches involving harvest log issues. [24] In coming to an appropriate amount of a fine in these matters, the court must keep in mind the following: that some of the casesthat the Crown has presented are older cases and, as such, a fine 10 years ago of $500 would, of course, be a higher fine today; secondly,that each case is unique in the circumstances and must be considered individually. [25] Although the Crown had been very helpful in providing a number of cases, they are only helpful to a point, and that the uniquecircumstances of Mr.

Roberts, including his age and his health, his financial ability to earn income, and his financial circumstances, hisprevious record, and the circumstances of these offences, must be what guides the court at the end of the day in imposing the appropriatefines. [26] After considering all of these factors and keeping in mind that the court is entitled to provide an extensive length of time to paythe fines, the court will be imposing fines in the following amounts. I note that there is no victim fine surcharge attached to Fisheries Actfines.

So, the fine is the fine; there are no additional amounts to be added. [27] With regard to Count 2, the failure to use the revival tank, the fine will be $1,500. Mr. Roberts will be given until March 31st,2020 to pay that fine which is approximately an amount of $75 per month to maintain the fine payment to the end. [28] With regard to Count Number 3, the breach of the harvest log entries, the fine will be $1,000, time to pay that fine July 31st,2021, which gives Mr. Roberts an additional period of time at $75 per month to clear that fine up.

He is, of course, entitled to pay thosefines quicker than the time allotted, but he is not required to. [29] Anything further, Ms. Switzer? [30] MS. SWITZER: Nothing further. [31] THE COURT: All right. [32] MS. SWITZER: The forfeiture just if I could hear from the court of what to do with the -- [33] THE COURT: Yes. [34] MS. SWITZER: The fish were sold. [35] THE COURT: The $380 will be forfeited to -- is it the Minister or the Receiver General?

[ 36 ] MS. SWITZER: It is the Receiver General of Canada -- [ 37 ] THE COURT: Yes, Receiver General of Canada. [ 38 ] MS. SWITZER: -- care of Fisheries and Oceans. [ 39 ] THE COURT: Whichever proper wording you have to use, Ms. Switzer. [ 40 ] MS. SWITZER: Thank you. [ 41 ] THE COURT: Now, do we have to have Mr. Roberts sign a fine document or -- [ 42 ] THE CLERK: I -- [ 43 ] THE COURT: -- how is that done, Ms. Switzer, in Fisheries cases? If it was a -- [ 44 ] MS.

SWITZER: Well, if it is -- if it was a 79.2 order, just an order is drafted and provided to the court, but this -- I did not ask - - we did not -- [ 45 ] THE COURT: Well -- [ 46 ] MS. SWITZER: This is not a 79.2 fine. So it is a fine through the registry. [ 47 ] THE COURT: Okay. Madam Clerk, so there will be a fine document prepared? [ 48 ] THE CLERK: Yes, Your Honour. [ 49 ] THE COURT: I want that ready for Mr.

Roberts' signature no later than 1:15 -- [ 50 ] THE CLERK: Okay. [ 51 ] THE COURT: -- so he can go and have lunch, come back, sign the document, and then get out to his plane. (REASONS FOR SENTENCE CONCLUDED)